MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

2012 Volume 36 Number 1 

A Review of the Current Legal Landscape 

Editors-in-Chief 

DARCY L. MACPHERSON, LL.B., LL.M. 

ASSOCIATE PROFESSOR, FACULTY OF LAW, UNIVERSITY OF MANITOBA 

BRYAN P. SCHWARTZ, LL.B., LL.M., J.S.D. 

ASPER PROFESSOR OF INTERNATIONAL BUSINESS AND TRADE LAW, 

FACULTY OF LAW, UNIVERSITY OF MANITOBA 

Senior Student Editor 

SIMON N. JACK, B.A., LL.B (2013) 

Student Editors 

BRIAN J. LEE, B.A. (HONS), J.D. (2013) 

TIMOTHY D. BROWN, B.A. (HONS), J.D. (2014) 

Editorial Assistants 

LYNN DONNELLY, B.SC. (CHEM), B.SC. (PRIM), J.D. (2013) 

LIAM G. BLACK, J.D. (2014) 

Cover Image 

BRIAN SEED 

Cover Layout 

JENNIFER CHLOPECKI

PUBLICATION INFORMATION 

Copyright © 2012 Manitoba Law Journal 

ISSN 0076-3861 

Cite as (2012) 36:1 Man LJ 

Printed in Canada on recycled and acid-free paper. 

Published annually on behalf of the Faculty of Law, University of Manitoba. 

Annual Subscription Rate: Canada: $35.00 CDN; Foreign: $35.00 U.S. 

Back issues available from: Manitoba Law Journal 

4th Floor Robson Hall, Faculty of Law 

University of Manitoba 

Winnipeg, Manitoba R3T 2N2 

E-mail: lawjournal@umanitoba.ca 

ACKNOWLEDGEMENTS 

The Manitoba Law Journal gratefully acknowledges the support of the Faculty of Law and 

the Legal Research Institute of the University of Manitoba, and the Manitoba Law Foundation. The 

Manitoba Law Journal equally is equally grateful to its patrons in the legal community. Our appreciation 

is also extended to the plethora of anonymous internal and external referees who were so generous 

with their valuable time and insights. 

THE LEGAL RESEARCH INSTITUTE OF THE UNIVERSITY OF MANITOBA promotes 

research and scholarship in diverse areas. 

INFORMATION FOR CONTRIBUTORS 

The editors invite the submission of unsolicited articles, comments, and reviews. The 

submission cannot have been previously published. All multiple submissions should be clearly marked 

as such and an electronic copy in Microsoft Word should accompany the submission. All citations 

must conform to the Canadian Guide to Uniform Legal Citation, 7th Edition. Contributors should, prior 

to submission, ensure the correctness of all citations and quotations. Authors warrant that their 

submissions contain no material that is false, defamatory, or otherwise unlawful, or that is inconsistent 

with scholarly ethics. Initial acceptance of articles by the Editorial Board is always subject to advice 

from one or more external reviewers. 

The Editorial Board reserves the right to make such changes in manuscripts as are 

necessary to ensure correctness of grammar, spelling, punctuation, clarification of ambiguities, and 

conformity to the Manitoba Law Journal style guide. Authors whose articles are accepted agree that, at 

the discretion of the editor, they may be published not only in print form but posted on a website 

maintained by the journal or published in electronic versions maintained by services such as Quicklaw, 

Westlaw, LexisNexis, and HeinOnline. Authors will receive a complimentary copy of the Manitoba Law 

Journal in which their work appears. 

Manuscripts and communications should be directed to: 

Editors-in-Chief 

Manitoba Law Journal Phone: 204.474.6136 

466 Robson Hall, Faculty of Law Fax: 204.480.1084 

University of Manitoba 

E-mail: lawjournal@umanitoba.ca 

Winnipeg, Manitoba R3T 2N2

2012 Volume 36 Number 1 

A Review of the Current Legal Landscape 

CONTENTS 

i 

Issue Overview and Introduction 

BRYAN P. SCHWARTZ AND DARCY L. MACPHERSON 

A R T I C L E S 

1 Wrongful Convictions 

BRUCE A. MACFARLANE, Q.C. 

37 Manitoba Hydro and Electricity Undertakings in Developing Countries 

YEMI OKE 

67 Taxonomie juridique des institutions postsecondaires offrant des 

programmes et des services en français à l’extérieur du Québec 

ALBERT NOLETTE, FRANÇOIS LAROCQUE, MARK C. POWER 

143 The Trial Judge’s Four Discretions to Exclude 

ROBERT TANHA 

193 Tattoos and Police Dress Regulations 

JOHN BURCHILL 

221 Social Incrimination: Social Networking Evidence 

DAN GRICE AND BRYAN P. SCHWARTZ 

287 Pine Tree Justice: Punitive Damage Reform 

BOYD MCGILL

C O M M E N T A R Y 

329 Leveling the Playing Field: O’Brien v Tyrone Enterprises 

DAYNA STEINFELD 

341 Book Review: Dams of Contention 

BRENDAN JOWETT 

351 Habeas Corpus, Legal History, and Guantanamo Bay 

JAMES OLDHAM. WITH PREFACE BY DEBRA PARKES 

383 Dueling Purchase - Money Security Interests under the PPSA 

DARCY L. MACPHERSON

Introduction and Issue Overview 

D A R C Y L . M A C P H E R S O N A N D 

B R Y A N P. S C H W A R T Z 

T 

his is the third issue of the Manitoba Law Journal of which I have 

been the proud Co-Editor-in-Chief. In volume 35:1 we announced 

our intention, supported by our colleagues, to refocus the MLJ on 

developments that are of particular concern to our own community. It was 

recognized that the only law school in this province has responsibilities 

that include ensuring that there is a stream of independent and informed 

commentary on issues arising within the society that surrounds and 

supports it. 

The existence of such a Manitoba Law Journal has not only provided 

an outlet for reflections with a Manitoba focus, but inspired their creation. 

We are pleased to report that many of our colleagues at the law school 

have already contributed to the revisioned journal and that there have 

been an impressive number of student contributions as well. Underneath 

the Golden Boy, an annual reflection on political law and legislative 

developments, with a strong Manitoba focus, is now again part of the 

MLJ’s annual publication program. As a result of these developments, the 

MLJ is now home to the great majority of scholarly articles published every 

year that specifically relate to Manitoba, and the overall annual amount of 

such Manitoba-connected material is now several times what it had been 

in previous years. 

At the same time as we introduced a Manitoba focus to the MLJ, we 

emphasized that the study of Manitoba legal issues can benefit greatly by 

bringing to bear experience and analysis in other provinces, at the national 

level, and around the world. Furthermore, lessons learned in this province 

may be valuable to those considering similar issues around the world. We 

also signalled that we believed the journal should reflect upon our history 

and make projections and proposals about the future, rather than dwelling 

only in the immediate. We hope that the contents of volume 35:1, with its 

many and varied subjects and perspectives, was true to our vision.

ii MANITOBA LAW JOURNAL|VOLUME 36 NUMBER 1 

The second volume (36:SI) was an extra issue, dedicated to reflections 

on five decades of Chief Justices in Manitoba. We thank all those whose 

extraordinary efforts enabled us to have it ready in time for February’s 

forum in honour of the retirement of Chief Justice Richard Scott. 

In this latest volume, 36:1, the collected articles again generally 

explore issues of direct relevance to the Manitoba legal community, but 

also illustrate the value of placing them in their national, comparative and 

international context. 

Bruce MacFarlane, Q.C. leads off this issue by looking at a 

controversial topic: should the Crown, of its own volition, examine 

convictions obtained by it in the past to ferret out potential miscarriages of 

justice? The Department of Justice of Manitoba decided to answer this 

question in the affirmative, and the Mantiboa approach has now become a 

model studied in the rest of the country. Professor MacFarlane was, in his 

previous career, the Deputy Attorney-General for the province. His article 

therefore offers something of an insider’s view of the process to create this 

policy, and its effects on the Canadian criminal-justice system. 

Although this was not a consideration as we placed the articles into 

the issue, Professor MacFarlane himself is an example of a jurist who has 

operated at the national and international as well as local level. A Robson 

Hall graduate, Professor MacFarlane remains connected to both the Law 

School and the province. But, this has not stood in the way of an 

interprovincial and international practice that has taken him to Alberta, 

the US, The Hague, many places in-between and back again. 

In the article authored by Yemi Oke, the author relates Nigerian 

electricity regulation to Manitoba, largely because Manitoba Hydro is 

seeking to win the contract to run parts of the Nigerian electricity system. 

Success in this endeavour would undoubtedly link the economic 

development of the province (and the rates paid for electrical power by 

Manitoba residents and businesses) to Nigerian outcomes in the same 

areas. In essence, Manitoba and its main energy provider go global by 

establishing a presence in Africa. 

In “Taxonomie Juridique des Institutions Postsecondaires Offrant des 

Programmes et des Services en Français à l’Extérieur du Québec”, by Mark 

Power, François Laroque and Albert Nolette, the authors argue that not all 

post-secondary institutions that profess to protect minority language rights 

do so in the same way, or to the same degree. As a result, the authors set 

out convincing categories for such institutions and allow the reader to

Issue Overview and Introduction iii 

assess their relative strengths and weaknesses. In this continuing era of 

bilingualism, hopefully, the categories offered by the authors will provide 

the basis for the assessment of new institutions that choose to offer such 

programs and services in the future. The MLJ is pleased to continue its 

recent tradition of publishing articles in each official language. 

Robert Tanha’s discussion of the circumstances under which trial 

judges may, as a matter of their discretion, decide to exclude evidence that 

is otherwise technically admissible is in no way limited to Manitoba. But 

like the article by Power, Laroque and Nolette, Tanha provides a 

taxonomy of these discretions. This could be help to any litigator 

confronted with evidence that they wish to exclude, in Manitoba or any 

other province. 

John Burchill brings a unique history and skill set to his article, 

“Tattoos and Police Dress Regulations”. As a former police officer, he 

understands better than most the importance of consistency and 

uniformity in the policy service. As a lawyer, he understands the 

implications for free speech of attempting to bar members of the police 

service from expressing themselves through body art. There is significant 

jurisprudence on this conflict of important principles. After all, many 

groups (beyond just police and military organizations) will attempt to 

control some of the expressive activities of their respective memberships. 

Drawing the line between these two public goods is not easy, but the first 

task is to recognize the conflict and lay competing arguments bare for 

analysis. 

In “Social Incrimination: How North American Courts are Embracing 

Social Network Evidence in Criminal and Civil Trials” authors Bryan 

Schwartz and Dan Grice look at how the courts have responded to the 

reality and pervasiveness of social media in the modern world. Many of the 

traditional doctrines of evidence will need to be adjusted to make room 

for these new technologies and the realities that accompany them. Again, 

this is as relevant to a Manitoba audience as it is to any other jurisdiction, 

whether it be north or south of the Canada-US border. Their paper was 

first presented at the annual Crown Defence conference in Manitoba, in 

2011 and was the basis for a further presentation in 2012 at a national 

Justice Department conference in Toronto.

iv MANITOBA LAW JOURNAL|VOLUME 36 NUMBER 1 

The article by Boyd McGill with respect to punitive damages is a wideranging 

discussion of the law in the area since the decision of the Supreme 

Court of Canada in Whiten v Pilot Insurance Co. 1 Ten years have passed 

since this decision was rendered; ten years of jurisprudence for 

assessments that simply would not have been possible earlier. Claims for 

punitive damages are hardly unique to Manitoba, as they are brought in 

the province and elsewhere in the country and the article may provide 

assistance to lawyers, regardless of their jurisdiction of practice. 

The same can be said of Dayna Steinfeld’s contribution “Leveling the 

Playing Field: Severance and Access to Justice at the Manitoba Court of 

Appeal”. This case comment arose out of a case (O’Brien v Tyrone 

Enterprises 2 ) that through the consent of the parties, the lawyers, the Court 

of Appeal, and the Faculty of Law, the oral hearing of which was held in 

the Moot Court Room at the Faculty. 

The case focuses on the ability of a trial court to sever the 

determination of liability from the calculation of damages. For people who 

are not heavily endowed with financial resources, a severance could mean 

the difference between being able to access recompense through the courts 

or not. 

Brendan Jowett’s review of Bill Redekop’s book, Dams of Contention: 

The Rafferty-Alameda Story and the Birth of Canadian Environmental Law, 

provides a critical analysis of a book focused on essential developments in 

an important area of Canadian law. Though it is generally focused outside 

of Manitoba, there can be little doubt that environmental concerns, both 

international (from North Dakota and other jurisdictions) and domestic, 

affect Manitoba as much as any other Canadian jurisdiction. 

The last four contributions have something else in common. All four 

have an author (Grice, McGill, Jowett and Steinfeld) who was either a 

student or recent graduate when the article was first submitted for 

publication. All of these contributions went through the normal review 

process. We at the MLJ are pleased to provide a venue for publishing topquality 

student writing about subjects of interest to a Manitoba legal 

audience. We hope that, in the future, more students will take the 

opportunity to submit exceptional written material for consideration by 

the MLJ. 

1 

2002 SCC 18, [2002] 1 SCR 595 

2 

2012 MBCA 3, 341 DLR (4th) 618.

Issue Overview and Introduction v 

The piece by James Oldham (“Habeas Corpus, Legal History and 

Guantanamo Bay”) represents the 2 nd Annual DeLloyd J. Guth Visiting 

Lecture in Legal History. The 1 st Annual DeLloyd J. Guth Visiting Lecture 

in Legal History was delivered by the Right Honourable Beverley 

McLachlin, Chief Justice of Canada. Titled “Louis Riel: Patriot Rebel”, the 

1 st Guth Lecture was published in the MLJ. 3 The MLJ is happy to be able 

to again provide a venue for publication of the Guth Lecture. Like the oral 

hearing of the Court of Appeal referred to earlier, this is an important 

event in the Law School calendar. 

Guantanamo Bay in Cuba has a US military installation that has 

entered the public consciousness. This occurred through both fictionalized 

accounts (like the Tom Cruise film A Few Good Men in 1992) and its reallife 

later use for the confinement of detainees under the American USA 

PATRIOT Act. 4 In fact, this latter use of Guantanamo Bay is intimately 

tied to the use of the writ of habeas corpus. There can be little doubt that as 

a province and as a country, we can certainly learn valuable lessons from 

our neighbours to the south. 

In her introductory essay to Professor Oldham’s contribution, 

Professor Debra Parkes was kind enough to locate the writ of habeas corpus 

in the Canadian context, both before and after the entrenchment of the 

Canadian Charter of Rights and Freedoms. 5 By linking the American and the 

Canadian approaches, both contributions give a broader, international 

perspective on this particular writ. 

In the concluding contribution, “Duelling Purchase-Money Security 

Interests under the PPSA: Explaining the Law and Policy behind Section 

34(7)” the author tries to provide the rationale for and explanation of a 

subsection of the Personal Property Security Act 6 that is often misunderstood 

(or perhaps ignored) in some quarters. Given that there is a similar 

subsection in other Personal Property Security Acts in the common-law 

provinces, this article, too, has significant potential importance both 

within and beyond Manitoba’s borders. 

3 

(2011), 35(1) Manitoba LJ 1 

4 

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism Act of 2001, 2001 Pub L. 107.56 

5 

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 

1982, c 11. 

6 

SM 1993, c 14, CCSM c P35

vi MANITOBA LAW JOURNAL|VOLUME 36 NUMBER 1 

The production of a volume like this one is impossible without a 

highly dedicated team. The student editors, Simon Jack, Brian Lee, and 

Tim Brown, put in an incredible amount of effort to get this volume out 

almost immediately on the heels of the Special Issue. The help of student 

assistants Liam Black and Lynn Donnelly (often on very short deadlines) is 

also gratefully acknowledged. 

As mentioned earlier, there would be no MLJ without authors who 

submitted their work, and anonymous peer reviewers who put in a great 

deal of time and effort to review the manuscripts, and in many cases, 

improve the content of those contributions. The editorial team thanks 

them all. A special mention is deserved for Professor John Eaton, whose 

exhaustive editing helped bring this issue to its current state of readiness. 

The revamped MLJ never would have been possible without the 

support of Law Faculty Council, and has benefitted from the further 

assistance of Dean Lorna Turnbull, and Associate Dean for Research and 

Graduate Studies Debra Parkes at the Faculty of Law, University of 

Manitoba. 

Several granting agencies deserve thanks as well. The Legal Research 

Institute of the University of Manitoba (under the chairmanship of the 

now-retired Professor Philip Osborne, and the successive executive 

directorships of both Professors Dr. Jennifer Schulz and Debra Parkes) 

provided key funding of student effort on the MLJ. The LRI itself is 

funded by the Manitoba Law Foundation (under the chairmanship of 

Garth Smorang and the executive directorship of Barbara Palace- 

Churchill). Also, the Endowment Fund Allocation Committee of the 

Faculty of Law, University of Manitoba was another key funding partner 

without whom our collective endeavour would not be successful. 

The research assistance of the E.K. Williams Law Library staff was 

essential to finding sources used by authors. Head Librarian John Eaton, 

Reference Libriarian Donna Sikorsky, and Reference Assistant Regena 

Rumancik were particularly helpful in this regard. 

The Law Journal Advisory Committee of the Faculty of Law, 

University of Manitoba, comprised of students, Faculty members, and 

members of the practising Bar, has provided advice and encouragement. 

On the aestethic, administrative and technical aspects of the Journal, 

another group of people was essential to the operation. The assistance of 

Maria Tepper is recognized, keeping the subscription and other data in 

order. Brian Seed is thanked for once again allowing the MLJ to use his

Issue Overview and Introduction vii 

award winning watercolour as our cover artwork. Jennifer Chlopecki laid 

out the cover that brought out the best side of that artistic vision and 

execution. Our printer, Friesens, [Donovan Bergman, Aron Friesen] and 

the other members of their team with whom we have had the pleasure of 

dealing over the last couple of years, turned a computer file into the 

permanent hard copy that you hold in your hands. They complied with 

deadlines that others would have found impossible to meet, and they did 

so with not only efficiency but smiles as well. For all of this, the editorial 

team is grateful. 

It is virtually certain that in the process of trying to think of everyone 

who contributed to this process, some names will be forgotten. Three 

spring immediately to mind as not having been mentioned elsewhere in 

this introduction. Professors John Irvine and Vivian Hilder, and Melanie 

Bueckert have been supportive from the beginning of the revamped 

Journal. There are undoubtedly others who have been omitted. At many 

stages, if any one person had said “no” to our ideas, this might have ended 

this project. We consider ourselves fortunate that people were willing to 

let us try this endeavour.

viii MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1

Wrongful Convictions: 

Is It Proper For the Crown to Root 

Around, Looking For Miscarriages of 

Justice? 

B R U C E A . M A C F A R L A N E , Q . C . 

I. INTRODUCTION 

I 

n 2003, the Province of Manitoba embarked on a controversial 

experiment. The government established an independent and multidisciplinary 

committee of experts for the purpose of reviewing all 

murder files prosecuted during the previous fifteen years: the Manitoba 

Forensic Evidence Review Committee. At issue was whether any 

miscarriages of justice may have occurred as a result of the use of a 

particular form of forensic evidence. The Province had no legal mandate 

to do so; there is nothing in the Criminal Code requiring, or even 

authorizing, such a review, and the move was without parallel in Canadian 

history. 

 

LL.B (Manitoba). Barrister and Attorney-at-Law, of the Manitoba and Alberta Bars. 

Mr. MacFarlane spent his early career as a federal prosecutor in Manitoba and 

Alberta. In 1989 he was appointed Assistant Deputy Attorney General for Canada, 

with responsibility for all federal prosecutions in the country. In 1993 he was 

appointed Deputy Attorney General for Manitoba—a position he held for 12 years. In 

2005 he left government and was appointed Professional-in-Residence at the Faculty 

of Law, University of Manitoba. There, he taught criminal law and designed a new 

course entitled “Miscarriages of Justice”. He has taught that course continually since 

then. In 2008 he was appointed by the United Nations as Amicus Curiae Prosecutor to 

prosecute in an international criminal court in Europe. At present, he provides advice 

to governments and law societies on a variety of criminal law issues, and continues to 

teach at Robson Hall and prosecute under international law at The Hague.

2 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 

Other provinces and the federal government watched the review 

unfold over the next several years with a degree of anxiety, and perhaps a 

healthy dose of scepticism. After all, is this really a proper role for the 

Crown? Isn’t the Criminal Code based on the fundamental proposition that 

the Crown prosecutes alleged offenders, leaving to the private bar and 

legal aid societies the responsibility to defend and pursue individual cases 

where there is reason to believe that a miscarriage of justice may have 

occurred? To be sure, Crown counsel may quite properly stay or withdraw 

proceedings, or even concede an appeal against conviction in individual 

cases where it becomes evident that the evidence does not support 

prosecution. But that occurs in individual cases on the basis of specific 

facts. Is it a proper function for the Crown to conduct what is essentially 

an unfocused “sweep” of cases to see if a miscarriage of justice may have 

occurred? If it is a proper role, where does the authority come from? And 

what prompted such an unusual step in Manitoba? 

By 2012, the review had been completed, at least one and possibly two 

miscarriages had been discovered, a Commission of Inquiry led by a 

former Chief Justice from Ontario had recommended that a review of this 

nature be undertaken at the national level, and all provinces had 

subsequently followed suit with similar reviews. In this essay, I will 

describe the “backstory” to this legal experiment, hatched initially in 

Manitoba but subsequently embraced widely throughout Canada. 

II. THE BIFURCATED ROLE OF PROSECUTORS IN CANADA 

The starting point in this discussion necessarily involves an 

understanding of the role and responsibilities of prosecuting counsel. At 

law, Crown counsel in Canada, and more widely throughout the 

Commonwealth, have two separate and distinct roles. The first, that of 

“advocate”, is well understood and publicly very visible. In respect of this 

role, the Supreme Court of Canada has observed that it is “both 

permissible and desirable” that the Crown “vigorously pursue a legitimate 

result to the best of its ability”. 1 “Indeed”, the Court added, “this is a 

1 

R v Cook, [1997] 1 SCR 1113 at para 21, 146 DLR (4th) 437 [Cook]. To paraphrase 

Justice Moldaver, then of the Ontario Court of Appeal and now of the Supreme 

Court of Canada, a criminal trial is not a tea party: R v Baltrusaitis (2002), 58 OR (3d) 

161 at para 34, 162 CCC (3d) 539. In this respect, see Robert J Frater, Prosecutorial

Wrongful Convictions 3 

critical element of this country’s criminal law mechanism”. 2 As a 

consequence, prosecuting counsel are expected to be firm and press the 

evidence to its legitimate strength. 

The second role, facially at odds with that of advocate, is the role of 

Crown attorneys as “ministers of justice”. The locus classicus concerning 

this responsibility was first described in 1954 by Rand J on behalf of the 

Supreme Court of Canada. It has since been affirmed repeatedly by the 

Supreme Court, and has been adopted with approval by such diverse 

appellate courts as the Privy Council in the UK, the House of Lords, the 

Supreme Court of Ireland, the High Court of Australia and the Supreme 

Court of Appeal of South Africa: 

It cannot be over-emphasized that the purpose of a criminal prosecution is not to 

obtain a conviction, it is to lay before a jury what the Crown considers to be 

credible evidence relevant to what is alleged to be a crime. Counsel have a duty 

to see that all available legal proof of the facts is presented: it should be done 

firmly and pressed to its legitimate strength but it must also be done fairly. The 

role of the prosecutor excludes any notion of winning or losing; his function is a 

matter of public duty than which in civil life there can be none charged with 

greater personal responsibility. It is to be efficiently performed with an ingrained 

sense of the dignity, the seriousness and the justness of judicial proceedings. 3 

In short, the prosecutor does not act in the largely partisan sense 

usually required of defence counsel by the adversarial system, but as a 

promoter of the public interest in achieving a just result. Significantly, the 

Misconduct (Aurora, Ont: Canada Law Book, 2009) at 2-3. 

2 

Cook, supra note 1. See also R v Assoun, 2006 NSCA 47 at paras 226–228, 244 NSR 

(2d) 96, leave to appeal to SCC refused [2006] 2 SCR iv, 359 NR 392 (note). 

3 

Boucher v The Queen (1954), [1955] SCR 16 at 23-24, 110 CCC 263; re-affirmed in: R 

v Regan, 2002 SCC 12 at paras 19, 62, 65, 137, 151, 153 and 155, [2002] 1 SCR 297 

[Regan]. Note especially para 155, where it is observed that this role is not confined to 

the courtroom, but extends to all dealings with the accused. See also Miazga v Kvello 

Estates, 2009 SCC 51 at paras 7, 47, and 88-89, [2009] 3 SCR 339; R v Stinchcombe, 

[1991] 3 SCR 326 at 341, 68 CCC (3d) 1; Nelles v Ontario, [1989] 2 SCR 170 at 191, 

60 DLR (4th) 609. Outside Canada, the Boucher principle has been approved in 

Randall v The Queen, [2002] UKPC 19; Benedetto v The Queen, [2003] UKPC 27; R v H, 

[2004] UKHL 3; Libke v R, [2007] HCA 30; DO v DPP, [2006] IESC 12; and Van der 

Westhuizen v S, [2011] ZASCA 36. Frater, supra note 1 at 2, says that “[t]he enormously 

influential nature of that statement cannot be gainsaid”.


Supreme Court has noted that this role as minister of justice is not 

confined to the courtroom, but extends to all dealings with the accused. 4 

This legal framework provided Manitoba Justice with an appropriate 

basis for conducting a review designed to assess whether murder 

convictions entered in the Province may be insecure. The very prosecution 

service that urged conviction during the 1980s and 1990s on the basis of 

its role as advocate was, therefore, where the circumstances demanded, 

fully entitled to discharge its “minister of justice role” by doing a “double 

check” in the 21 st century to ensure that justice had truly been served 

during the previous fifteen years. 

But what was the “triggering event”? What prompted Manitoba Justice 

to take such an unprecedented step, and place into issue convictions for 

murder that had been entered by a unanimous jury and confirmed on 

appeal? And what process was followed to guide a review that was not 

contemplated by either the Criminal Code or the common law? 

III. HAIR MICROSCOPY 

The intersection of law with forensic science and medicine is not 

always an easy one. Trial processes seek facts, certainty and finality. 

Forensic science and medicine, on the other hand, provide an opinion, 

sometimes nuanced, which may change as professional views become more 

refined or are completely overtaken by the emergence of new 

technologies. 5 

In the last decade, it has become painfully clear that flawed scientific 

evidence has contributed to the conviction of persons who were innocent 

of the crimes with which they had been charged. 6 Indeed, recent studies 

suggest that flawed forensic science is the second leading cause of wrongful 

4 

Regan, supra note 3 at para 155. 

5 

Portions of this essay are based on an earlier paper I presented to the annual 

Crown/Defence Conference in Winnipeg, MB on September 22, 2011 entitled 

“Wrongful Convictions: Determining Culpability When the Sand Keeps Shifting”. 

6 

See Committee on Identifying the Needs of the Forensic Sciences Community, 

National Research Council, Strengthening Forensic Science in the United States: A Path 

Forward (Washington, DC: The National Academy Press, 2009) at 4ff, online: 

[NRC].


convictions—acting as a contributing factor in half of the cases in which 

inmates have been exonerated through DNA testing. 7 

How can this be? After all, aren’t these the men and women in white 

lab coats who tirelessly pursue justice through independent, truth-seeking 

scientific and medical processes? What has happened? Has science and 

medicine failed to live up to the standards demanded by the courts and 

expected by the public? Or have we expected too much of the forensic 

sciences? 

Perhaps the weakest form of forensic science traditionally relied upon 

by police and prosecutors is known as “forensic microscopy”. In its 

simplest terms, forensic microscopy involves the side-by-side comparison, 

under a microscope, of a “known” substance, often strands of hair taken 

from a suspect, to other strands of hair, the “questioned” evidence, taken 

from the crime scene. The object is to see if the two groups of evidence 

came from the same source. The probative value, it is argued, is simply 

this: if there is a “match”, the suspect must have been at the crime scene, 

often despite repeated denials by that person. 

Law enforcement agencies throughout North America regularly used 

this comparative procedure as an investigative tool. Hairs, for example, are 

routinely shed, and thus are capable of being transferred from an 

individual to the crime scene, and from the crime scene to an individual. 8 

During the 1970s and 1980s, and into the 1990s, the policing community 

7 

A conclusion made on the basis of the first 232 persons in the US exonerated through 

post-conviction DNA testing: The Innocence Project, “National Academy of 

. At the time of writing, 

June 2012, there have been 292 post-conviction exonerations in the US. 

While the statistics in Canada and elsewhere tend to be more anecdotal than 

systemic, it is clear that flawed forensic evidence has played a significant role in other 

countries: in Canada: Morin: (hair and fiber played a major role); Lamer Commission 

(forensic practices); Driskell (hair microscopy); Goudge Inquiry (pathology). In 

Australia, the Royal Commission of Inquiry into Chamberlain Convictions (1987) 

(blood analysis); in New Zealand, the Royal Commission to Inquiry into the 

Convictions of Arthur Allan Thomas (1980) (bullets and rifling), and in the U.K., a 

series of tragic wrongful convictions due to faulty if not malicious pathology. I have 

described several of these cases, along with equally disconcerting miscarriages of 

justice involving alleged IRA sympathizers in the UK, in: “Convicting the Innocent: A 

Triple Failure of the Justice System” (2006), 31:3 Man LJ 403 at 417–421 and 454– 

465. 

8 

NRC, supra note 6 at 155-156.


placed considerable emphasis on hair microscopy. The RCMP alone 

maintained a staff of approximately 35 hair examiners across Canada. 9 But 

it was just a tool: hair comparisons were simply intended to provide a 

“class association”; that is, as the National Research Council of the 

National Academies put it in 2009: 

a conclusion of a “match” means only that the hair could have come from any 

person whose hair exhibited—within some levels of measurement uncertainties— 

the same microscopic characteristics, but it cannot uniquely identify one person. 

However, this information might be sufficiently useful to “narrow the pool” by 

excluding certain persons as sources of the hair. 10 

So it was fundamentally an investigative tool intended to “narrow the 

pool” of suspects. Despite this, prosecution services sometimes used the 

results of the comparison as evidence in criminal prosecutions. Hair 

microscopy faded from prominence during the early to mid-1990s (at least 

on the court side) with the advent of DNA technology. 

For reasons I will now examine, hair microscopy probably yielded 

nothing more than an educated guess. 11 Its probative value was slight, the 

prejudicial effect on the conduct of the trial was significant, and its use 

ought to have been confined to investigations and not extended into the 

courtroom. 12 

9 

Report of the Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James 

Driskell, (Winnipeg: Government of Manitoba, 2007) (The Honourable Patrick J 

Lesage, QC), at 174, online: [Driskell Report]. 

10 

NRC, supra note 6 at 156. 

11 

To adopt the phrase used consistently (albeit in a different context) in the following 

appellate decisions: R v Ranger (2003), 67 OR (3d) 1 at para 82, 178 CCC (3d) 375 

(CA); R v Clark (2004), 69 OR (3d) 321 at para 78-79, 182 CCC (3d) (CA); R v 

Klymchuk (2005), 203 CCC (3d) 341 at paras 33-37 (available on WL Can) (Ont CA) 

[Klymchuk]. 

12 

Even if the test for admissibility of expert evidence is met, a trial judge may reject the 

proffered evidence if its prejudicial effect on the conduct of the trial outweighs its 

probative value: R v DD, 2000 SCC 43 at para 11, [2000] 2 SCR 275. I will turn to 

this later on in this section, but the Ontario Court of Appeal has powerfully observed 

that items of evidence amounting to nothing more than an ‘educated guess’ “… can 

play a valuable role in the investigation of crime by directing the police to fruitful 

areas of investigation. They cannot, however, be admitted as evidence under the guise 

of expert opinion”: Klymchuk, supra note 11 at para 37.


A. The Morin Inquiry 

The modern assessment of the probative value of hair microscopy 

evidence, at least in Canada, starts with the Commission of Inquiry into 

the Proceedings Involving Guy Paul Morin. 13 

On October 3, 1984, Christine Jessop, a nine-year old girl, was 

murdered. Suspicion fell on her next-door neighbour, Guy Paul Morin. In 

short order, he was charged with her murder. 

The case was entirely circumstantial. Amongst other things, the 

Crown relied on hair comparisons to demonstrate that there had been 

physical contact between Christine Jessop and the accused, and that 

Christine had been transported in Morin’s car to her death. This evidence 

was said to refute the accused’s denial that he had not had any contact 

with Christine, and that she had never been in his car. 

When Christine’s body was discovered, a single dark hair was found 

embedded in skin tissue adhering to her necklace. This hair was not 

Christine’s, and was presumed to have come from her killer. On 

microscopic analysis, experts concluded that the hair could have originated 

from Morin. Three hairs found in Morin’s car were likewise said to be 

dissimilar to the accused’s hairs; experts contended that they were similar 

to Christine’s hairs, and “could have” come from her. 

After multiple trials and appeals, Morin was acquitted on appeal in 

1995 on the basis of fresh DNA evidence tendered jointly by the Crown 

and the defence. Ontario called a public inquiry to find out what had 

happened and appointed the Honourable Fred Kaufman, a former judge 

of the Quebec Court of Appeal, to preside over it. The hair comparison 

evidence played a significant role in Commissioner Kaufman’s conclusion 

that Morin had been wrongly convicted. He cited three central concerns. 

First: “[h]airs are not unique, and the assessment of the similarities, 

differences and importance of hair characteristics is highly subjective.” 14 

Hair microscopy cannot yield a conclusion that a particular person was the 

donor of a hair. 15 

13 

Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin, (Toronto: 

Queen’s Printer for Ontario, 1998) (The Honourable Fred Kaufman), online: 

[Morin 

Report]. 

14 

Ibid at 88. 

15 

Ibid.


Second: 

the strongest conclusion that can be drawn is that a hair or fibre is consistent with 

having come from a particular source. The second strongest conclusion is that a 

hair or fibre could have come from a particular source. … Another conclusion 

which is sometimes drawn is that a hair or fibre cannot be excluded as having 

come from the same source. 16 

None of these conclusions identifies the source of the unknown hair. The 

nuances developed by scientists in this area are easily miscommunicated 

and misapprehended by lay triers of fact; in this case, the language used 

contributed to Morin’s wrongful conviction. 17 

And third: the experts failed to adequately communicate the 

limitations on their findings to both the prosecutors and the court. 18 

In these circumstances, Commissioner Kaufman noted cautionary 

words from the Supreme Court of Canada to the effect that expert 

evidence can easily be misused and distort the fact-finding process. 

Famously, that Court had said: 

Dressed up in scientific language which the jury does not easily understand and 

submitted through a witness of impressive antecedents, this evidence is apt to be 

accepted by the jury as being virtually infallible and having more weight than it 

deserves. 19 

In the result, Commissioner Kaufman recommended that trial judges 

should: 

i. undertake a more critical analysis of hair comparison 

evidence, and where it only shows that an accused cannot be 

eliminated, exclude the evidence; 20 

ii. if admitted, charge the jury that as the trier of fact it should 

not be overwhelmed by any aura of scientific authority or 

infallibility of the evidence, and explain the limitations that 

should be applied to the expert’s findings; 21 and 

16 

Ibid at 88 [emphasis in original]. 

17 

Ibid at 88-89 and 101-110. 

18 

Ibid at 103. 

19 

R v Mohan, [1994] 2 SCR 9 at 21, 114 DLR (4th) 419 [Mohan]. 

20 

Morin Report, supra note 13 at 311. 

21 

Ibid at 328.


iii. 

not permit experts to use demonstrably misleading language 

such as “consistent with” and “match” in the context of 

forensic hair comparisons. 22 

B. The Driskell Inquiry 

The indictment of forensic microscopy did not stop there. In 1990, in 

Manitoba, James Driskell was charged, convicted and imprisoned for first 

degree murder, in part because of hair evidence. An inquiry into his case 

was commissioned in 2005, and in 2007, a retired Chief Justice from 

Ontario ultimately concluded that Driskell had been wrongfully 

convicted. 23 Though his report was issued well after the Manitoba Forensic 

Evidence Review Committee completed its mission, its discussion of hair 

microscopy shows the context in which the Review took place. 

Driskell had been charged with the murder of Perry Dean Harder. The 

case for the Crown was largely circumstantial, but had been contaminated 

with unsavoury witnesses, inexplicable non-disclosure of critical evidence 

by the prosecutors and police, and a heated out-of-court confrontation 

between the lead prosecutor and counsel for one of the Crown witnesses. 

To make matters worse, the prosecution had tendered and relied upon 

hair comparison evidence that was said to implicate the accused in the 

offence. 24 

At trial, the Crown called an RCMP expert, Tod Christianson, to 

testify with respect to the hair evidence. 

In 1990-91, Mr. Christianson was one of about five hair and fibre examiners in 

the Winnipeg Laboratory of the RCMP Forensic Laboratory Services (“RCMP 

FLS”). He had been a hair and fibre examiner for approximately seven years 

(including one year as a trainee), and had worked on almost 470 prior hair and 

fibre cases. He had presented microscopic hair comparison evidence in 26 

previous cases. 25 

Seemingly he had all the qualifications and experience that a prosecutor 

would want. 

Mr. Christianson testified that three of the questioned hairs from the 

accused’s van (said to have been used in the murder) were microscopically 

22 

Ibid at 338-343 of the report and at 47 of the Executive Summary. 

23 

Driskell Report, supra note 9 at 1. 

24 

Ibid at 146-149. 

25 

Ibid at 147.


“consistent with” the known hairs attributed to the deceased “within (a) 

normal range of variation”. 26 When asked what he meant by “consistent 

with”, he provided this explanation: 

[W]hen I say that a hair is consistent, as I have in this case, that means that the 

hairs have all of the features that the known samples have, within normal 

biological variation, and there’s nothing, nothing you would—that you can’t 

account for. So that if there was some feature, for example abnormal colour or 

something like that, that would cause that hair to be eliminated. So, it falls 

exactly within the range of the variation of the known sample with no 

unaccounted for differences whatsoever. 

And the point about this type of analysis is that it’s not a positive 

identification, all right, because the only way you could do that is to look at all 

the hairs from all the person’s head that exist, and that’s an impossibility. But I 

can tell you, based on my experience, that the chances of just accidentally picking 

up a hair and having it match to a known sample are very small. So if the hair is 

consistent, that means it either came from the same person as that known sample 

or from somebody else who has hair exactly like that. 27 

Mr. Christianson’s evidence at the Driskell trial was in most respects 

typical of how hair microscopy evidence was presented in Canadian courts 

during the early 1990s. 28 There were, however, several problems with it. 

First, his conclusions had not been “peer reviewed” by a second hair 

examiner, despite that fact that several examiners were available in the 

same office. 29 Second, like most other forensic labs at the time, the RCMP 

FLS did not conduct microscopic hair comparisons “blind”—i.e., the 

examiner knew something about the police theory of the case, and 

26 

Ibid at 147-148. 

27 

Ibid at 150 [emphasis added]. 

28 

This was the conclusion reached by Douglas M Lucas MSc, DSc (Hon), the former 

head of the Centre of Forensic Sciences of Ontario, who had been retained by the 

resulting Commission of Inquiry into the Driskell case to provide advice on Mr. 

Christianson’s lab work and trial testimony: Driskell Report, ibid at 165. The Lucas 

report is attached to the Inquiry report: ibid in Appendix G at 19. 

It may well be that Mr. Christianson’s manner of testifying was reflective of the 

practice in the US as well. In 1985, the FBI convened a symposium bringing the 

community of hair comparison analysts together. The purpose of the symposium was 

to develop and agree upon standards. They agreed to avoid use of the term “match”; 

that the strongest statement that would be made was that a hair was “consistent with” 

or “could have” come from the accused; and not to give evidence about probabilities: 

Brandon L. Garrett, Convicting the Innocent (Cambridge: Harvard University Press, 

2011) at 99. To the same effect, see NRC, supra note 6 at 159-160. 

29 

Driskell Report, supra note 9 at 148.


therefore knew if the police were expecting to find a hair “match”. 30 

Third, Mr. Christianson’s evidence was carefully nuanced, but it is 

doubtful that the jury properly understood the limited probative value of 

the microscopic observations he had made. 31 

And, as it turned out, Mr. Christianson was wrong. Very wrong. 

Subsequent DNA examination established that there was “extremely 

strong support for the proposition that the hairs in question did not 

originate from the [deceased];” more seriously, the three questioned hairs 

were shown to have originated from three different persons, none of 

whom were Mr. Harder. 32 

The scientific sands shifted several times in the case of James Driskell. 

During his testimony at the trial, Mr. Christianson fairly pointed out that 

the examination did not lead to a positive identification. However, he 

nuanced that observation by saying that the chance of a coincidental 

match was very small. Indeed, “he presented his results as highly probative 

on the issue of identity”. 33 

The sands continue to shift, even now. Like Commissioner Kaufman 

in the Morin Inquiry, Commissioner LeSage in the resulting Driskell 

Report emphasized that, even at the time of the Driskell prosecution, it 

was widely recognized in the forensic community that microscopic hair 

comparisons were (and are) highly subjective, and that different examiners 

sometimes disagree. 34 Most seriously, the debate as to the role and 

usefulness of hair microscopy was raging at the time that it was being used 

in investigations and court proceedings, and the reality is that the 

“science” itself had never and still has not been properly validated. Dr. Joel 

Mayer, an expert called at the Driskell Inquiry, pointed out that the 

forensic community itself had contributed to the problem by putting the 

cart before the horse: 

In fact, when hair microscopy and hair examination was being used by many 

forensic science laboratories, the debate as to the usefulness and the significance 

of the findings was still raging on. And that’s the wrong way to go about it. That 

debate should have taken place first, and once there was consensus and 

30 

Ibid at 162-163. 

31 

Ibid at 166. 

32 

Ibid at 155. 

33 

Ibid at 161 and 163. 

34 

Ibid at 161.


agreement, then turn around and employ this technique. So it should have been 

validated first. Unfortunately, as I look at it, the validation was ongoing while the 

information was being produced and evidence was given. At the end of the day, 

is this science? 35 

Commissioner LeSage thought not. He felt that supposed scientific 

evidence should not be presented in criminal trials as probative on the 

issue of identity unless the process itself, and the conclusions reached, had 

a strong empirical or theoretical foundation. 36 Hair microscopy fails that 

test, as it is fundamentally experience-based, not scientifically anchored. 37 

Indeed, in 2009, the National Research Council of the National Academy 

of Sciences in the US reported that “[n]o scientifically accepted statistics 

exist about the frequency with which particular characteristics of hair are 

distributed in the population” and that any effort to link a specific 

defendant to hair evidence on the basis of microscopy alone has “no 

scientific support”. 38 A study which double-checked FBI laboratory hair 

microscopy work through mitochondrial DNA analysis showed it to have 

an 11% error rate. 39 Other studies and proficiency tests of hair examiners 

dating back to the 1970s found error rates ranging from 28% to as high as 

68%. 40 In the end, DNA testing would reveal that in four separate 

Manitoba murder cases, the hair microscopy examination had been 

incorrect. 41 

That being the case, does hair microscopy evidence have any further 

role in criminal trials, or has it been consigned it to the forensic scrapheap? 

Commissioner LeSage still saw one last legitimate, albeit narrow, 

post-investigation role: 

35 

Ibid at 173. 

36 

Ibid at 172. 

37 

The RCMP examiners’ handbook suggested that if examiners are asked to explain the 

basis for their opinion, they should refer to “publications”, “attendance at workshops 

and seminars”, “discussions with others in the field”, “understudy training”, the “100 

hair exercise” and other “proficiency tests”, and their years of casework experience: 

ibid at 168-169. 

38 

NRC, supra note 6 at 160-161. 

39 


40 

Barry Scheck et al, Actual Innocence: When Justice Goes Wrong and How to Make it Right 

(New York: Signet Books, 2001) at ch 7. 

41 

Driskell Report, supra note 9 at 172. These cases were those of Driskell, Unger, 

Sanderson, and of Robert Starr. See R v Starr, 2000 SCC 40 at para 200, [2000] 2 

SCR 144.


I agree with the views expressed by the panelists and in the Morin Inquiry Report 

that if hair microscopy evidence remains admissible, any conclusions should be 

expressed in “exclusionary” rather than “inclusionary” terms (i.e., framed as a 

statement that the source of the known hairs cannot be excluded as the source of 

the questioned hairs). 42 

The US National Research Council of the National Academies 

expressed a similar view two years later: 

Because of the inherent limitations of hair comparisons and the availability of 

higher-quality and higher-accuracy analyses based on mtDNA, traditional hair 

examinations may be presented less often as evidence in the future, although 

microscopic comparison of physical features will continue to be useful for 

determining which hairs are sufficiently similar to merit comparisons with DNA 

analysis and for excluding suspects and assisting in criminal investigations. 43 

C. The Triggering Event 

To sum up: during the 1970s and 1980s and into the 1990s, the 

policing community placed considerable emphasis on hair microscopy. 

Prosecution services likewise relied upon it in court, primarily to assist in 

establishing the identity of the suspect in murder cases. Testimony in 

court was often nuanced, but “dressed up in scientific language which the 

jury does not easily understand, and submitted through a witness of 

impressive antecedents,” 44 triers of fact inevitably gave the evidence 

considerable weight. What was not well understood was that at the very 

time the evidence was being tendered in court, there was considerable 

dispute within the forensic community on whether the evidence was 

reliable, and how far a witness could go in suggesting that it was probative 

of critical facts in issue. 

The sand started to shift markedly in the early 1990s, with the advent 

of, and increasing reliance on, DNA evidence. A trend developed in the 

US to exclude admission of hair microscopy evidence on the basis that it 

was simply unreliable. 45 In 1998, the Morin Commission of Inquiry 

42 


43 

NRC, supra note 6 at 160. 

44 

Mohan, supra note 19. 

45 

Williamson v Reynolds, 904 F Supp 1529, 1558 (ED Okla 1995); Clive A Stafford Smith 

& Patrick D Goodman, “Forensic Hair Comparison Analysis: 19 th Century Science or 

20 th Century Snake Oil?” (1996) 27 Colum HRL Rev 227.


demonstrated that hair microscopy evidence amounted to little more than 

an educated guess. 

All this was brought home to Manitoba by the case of James Driskell. 

In 2002 and 2003 counsel for Driskell conducted a reinvestigation of his 

case. It was accompanied by a fair bit of media coverage. As part of this, 

Manitoba Justice arranged for a DNA test of the hair evidence from his 

case. That test showed that hair microscopy evidence could be and had 

been wrong. Something had to be done, and the Province decided to 

embark upon an unprecedented experiment. 

IV. THE MANITOBA FORENSIC EVIDENCE REVIEW 

In April 2003, in my former life as Deputy Minister of Justice for 

Manitoba, I announced the creation of the Forensic Evidence Review 

Committee. Multi-disciplinary in nature, the committee was composed of 

a senior crown attorney as Chair (Richard Saull, now a superior court 

judge), a defence lawyer designated by the Association in Defence of the 

Wrongly Convicted (AIDWYC), 46 senior investigators from each of the 

RCMP and the Winnipeg Police Service, a crown attorney, and a forensic 

expert from the University of Manitoba with no connection to law 

enforcement. The written mandate of the Committee was as follows: 

The Committee shall examine all cases of culpable homicide: 

prosecuted in Manitoba during the past 15 years; 

in which the Crown tendered and relied upon microscopic hair comparison 

evidence; 

where the accused pleaded not guilty at trial, asserting factual innocence, 

but was found guilty; and 

appealed the conviction to the Court of Appeal, still asserting factual 

innocence, and the appeal was dismissed, 

46 

The Association in Defence of the Wrongly Convicted is a non-profit organization 

dedicated to identifying, advocating for, and exonerating individuals convicted of a 

crime that they did not commit and to preventing such injustices in the future 

through education and reform. Relying primarily on the pro bono work of a few 

defence counsel in Toronto following the discovery of a miscarriage of justice in the 

case of Guy Paul Morin during the early 1990s, AIDWYC has since grown into a 

funded, national organization with a strong track record for identifying those who 

have been wrongly convicted, then advocating on their behalf: AIDWYC, online: The 

Association in Defence of the Wrongly Convicted .


to consider whether there is a reasonable basis to believe that, by virtue of this 

evidence, a miscarriage of justice has taken place. 

Amongst other issues, the Committee shall consider: 

1. the nature of the evidence tendered in the context of the trial 

record; 

2. whether, with the benefit of current scientific expertise, the 

conclusions tendered by the Crown at trial were incorrect; 

3. the extent to which the Crown relied upon this evidence to prove 

the case; 

4. any comments made by the trial judge concerning the probative 

value or weight to be given to this evidence; 

5. any other factors that may assist in assessing whether a miscarriage 

of justice has occurred. 47 

In essence, the committee was asked to do a double check on murder 

cases that had been prosecuted in the province during the preceding 15 

years, to see if there were any inmates still behind bars who had been 

convicted, in part or largely, on the basis of hair microscopy evidence. 

AIDWYC had been consulted on the initiative, was supportive, and 

attended the public announcement to express its support. 48 The 

committee was given one year to report, and was empowered to do any 

testing it thought necessary to complete the task. 

On August 19, 2004 the committee filed its report, which was made 

public the following month. From an initial inventory of 175 cases, 136 

were eliminated for various reasons (such as an appeal against conviction 

was allowed). That left 39. The trial transcripts of each of the remaining 

cases were reviewed, and 37 were eliminated for various reasons—for 

instance, that hair comparison evidence had not been tendered, or the 

defence had been run on a basis other than factual innocence. Two cases 

remained: Kyle Unger and Robert Sanderson. 49 

47 

Forensic Evidence Review Committee, Final Report (Winnipeg: Manitoba Department 

of Justice, 2004) at 3–4, online: [FERC Final Report]. 

48 

Although, in fairness, it should be noted that AIDWYC would have preferred the 

scope to be wider. The recommendation advanced by AIDWYC during the Driskell 

inquiry in support for a national review mirrors to a certain extent the mandate 

prepared by Manitoba: Driskell Report, supra note 9 at 181. 

49 

Both had been found guilty at trial, and had their convictions affirmed unanimously 

by the Manitoba Court of Appeal: R v Unger (1993), 83 CCC (3d) 228, 85 Man R (2d) 

284 [Unger cited to CCC]; R v Sanderson, 134 Man R (2d) 191 (available on WL Can) 

[Sanderson cited to Man R].


Both inmates were approached, agreed to provide DNA samples, and 

with the support of counsel and members of the committee, DNA testing 

was performed by an accredited lab in the US. The results were not 

surprising. DNA showed that the original microscopy examination had 

been wrong in both cases. The committee referred both back to Manitoba 

Justice for review, noting that one of the cases, involving Kyle Unger, 

should be given priority attention. 50 

The Manitoba review raised some complex and multi-faceted issues. 

There are a number of ways to analyze those issues, but in my view the best 

and most practical way is to examine both the process and the results of 

the review through the lens of the various affected parties and 

stakeholders. Their reactions ranged from complete support, to a more 

nuanced lukewarm reception, to outright rage and bewilderment. 

A. Manitoba Justice’s Reaction 

The review process raised some eyebrows within the Department. Was 

it a proper role for the Crown to deliberately seek out potential wrongful 

convictions? Where did that mandate come from? Was not the role of the 

Crown to prosecute crime in an adversarial setting—leaving the interest of 

accused persons and inmates to be represented and protected by the 

private bar or Legal Aid? And what if an inmate wanted to be left alone— 

preferring, instead, life in an institution? Remember, this was not a 

situation where an inmate had raised his hand and said, “Please review my 

case; I am innocent”. The Department did not know what any particular 

inmate’s position was, and had no idea whether inmates even wanted a 

review of their cases. There was, surely, the right to be left alone—free from 

government interference, as long as you are adhering to the institution’s 

rules and are abiding by the law. 

Nonetheless, as described earlier in this essay, Manitoba Justice took 

the institutional view that the Crown has a broad role as “minister of 

justice” to ensure that justice has been done in cases where evidence now 

recognized as unreliable had been tendered and relied upon by the 

prosecution. 51 In the case of hair microscopy, the sands of scientific 

opinion had shifted during the previous 30 years, and the Department 

50 

FERC Final Report, supra note 47 at 20. 

51 

See the discussion and cases supra note 3.


concluded that there was a responsibility to do a double check to ensure 

that no innocent persons had been convicted on the basis of faulty 

forensic evidence. 

On a more personal level, most of the Crown attorneys in the 

department were supportive as well. One prosecutor, arguably the most 

experienced in the Province, said that he had been involved in a few cases 

that caused him a degree of concern afterward; it was quite appropriate, he 

said, for the Province to do a double check after the fact. In the result, 

contrary to my initial expectations, prosecutors in the province generally 

supported the review. With the benefit of hindsight, I’m not sure why I 

expected any resistance: in my experience, prosecutors understand their 

responsibilities as ministers of justice. 

B. Kyle Unger’s Reaction 

Based on the forensic evidence review, Mr. Unger’s counsel filed an 

application to the Minister of Justice for a review of his conviction 

pursuant to sections 696.1–696.6 of the Criminal Code. In November 

2005, Mr. Unger was granted bail pending the Minister’s decision. 52 On 

March 11, 2009 the Minister of Justice ordered a new trial because “there 

[was] a reasonable basis to conclude that a miscarriage of justice likely 

occurred in [his] 1992 conviction”. 53 On October 23, 2009 four important 

announcements were made: Manitoba’s senior Crown attorney advised 

the court that after a full review of the evidence it had been concluded 

that “… it would be unsafe to retry Unger on the available evidence”. 54 He 

52 

While not authorized under the Criminal Code, the law is now clear that an inmate 

under sentence has a Charter-based right to apply for and be granted bail where a 

section 696.1 application has been made and a defined evidentiary threshold has been 

met: R v Phillion, [2003] OJ No 3422 at paras 104-105 (QL) (Sup Ct J); Driskell v 

Canada, 2004 MBQB 3 at para 48, [2004] 4 WWR 182 [Driskell v Canada]; Unger v 

Canada, 2005 MBQB 238 at paras 49-51, 196 Man R (2d) 280 [Unger v Canada]; R v 

Ostrowski, 2009 MBQB 327 at paras 57-59, 250 CCC (3d) 123 [Ostrowski]. 

53 

“Police made evidence fit the crime in convicting Kyle Unger: lawyer” CBC News (11 

March 2009), online: . 

54 

See the submission of Don Slough, Assistant Deputy Attorney General for Manitoba, 

in an unusually lengthy and detailed history of the case and accounting on the record 

why Manitoba was not offering any evidence on the re-trial of the accused: R v Unger, 

(23 October 2009), Winnipeg, CR91-01-11124 (Man QB) (Crown Submission),


advised that the Crown would not be calling any evidence, and the court 

entered an acquittal as a result. A few hours later, the Minister of Justice 

for Manitoba announced that no public inquiry would be called. While he 

was surely innocent of the offence with which he had been charged, a 

seemingly incriminating reaction to a “Mr. Big” sting operation 55 

implicated him at trial, and the province would not be offering any 

compensation as it was Unger’s own comments that contributed to his 

conviction. Concurrently, the RCMP announced that it did not intend to 

re-open the investigation into the murder. Criminal proceedings were 

over, and Mr. Unger was freed. However, the case was not yet over. It was 

about to move into civil court. 

On September 21, 2011 Unger filed a $14.5 million wrongful 

conviction lawsuit. In the statement of claim filed in the Manitoba Court 

of Queen’s Bench, he named as defendants the RCMP, individual RCMP 

members, specific Crown attorneys as well as both the federal and 

provincial Attorneys General. The action remains pending as I complete 

this essay. 56 

There is a postscript to the issue of Unger’s reaction to the province’s 

review. He initially had a hard time coping with the notion that he should 

be released. He had spent almost all of his adult life in jail. In a sense, jail 

had become home for him. He had become institutionalized. His obscene 

gesture to the media after being released on bail spoke volumes about his 

raw mental and emotional state at that point in his life. A year after his 

online: CBC . 

55 

In which, typically, a police officer poses as a major crime figure who is seeking to 

recruit the accused to become part of his criminal “gang”. A pre-condition to joining 

the gang is to admit to previous criminal activity committed by the accused—which, 

through police steering of the conversation, invariably focuses on the crime under 

investigation by police: see R v Mack, 2012 ABCA 42 at para 27, 522 AR 262. For an 

analysis of this investigative strategy, see Bruce A MacFarlane, Robert Frater & 

Chantal Proulx, Drug Offences in Canada, loose-leaf (consulted on July 2012), 3d ed 

(Toronto: Canada Law Book, 2011) ch 25 at 25.960ff. 

56 

Steve Lambert, “Kyle Unger files $14.5M wrongful conviction lawsuit” The Globe and 

Mail (21 September 2011), online: The Globe and Mail 

 

[Unger News Article]. The 

case is entitled Kyle Unger v George Dangerfield et al (court registry CI 11-01-74071). Its 

progress can be tracked online at .


release on bail, he threw a stone at a window with a police officer beside 

him so that he could be re-arrested and sent back to jail. His ploy did not 

work. Overall, his post-release conduct demonstrated an anti-social 

psychological profile that is somewhat disconcerting. Whether he was like 

that to begin with, or became that person as a result of his experience in 

jail, is clearly a debatable issue. It may have been a bit of both. But it 

illustrates one of the implications of the Crown conducting an unsolicited 

if not an unwanted “sweep” of cases in search of miscarriages of justice. 

C. The Victim’s Family’s Reaction 

Although the issue of wrongful conviction is often portrayed as a 

"liberal" issue focusing on the rights of an accused person, it is very much 

an issue that affects public safety and confidence in the justice system. 

Every time someone is convicted of an offence for which they are 

innocent, the justice system fails in three separate ways. Along with the 

direct impacts on the person who is wrongfully convicted, the actual 

perpetrator remains free to continue victimizing others. Equally 

disconcerting, we re-victimize the victim or the family of the victim by 

undoing the emotional closure that has already taken place, and reopen a 

wound which, with an increasingly cold evidentiary trail, may never be 

healed. 

Regrettably, that is precisely what occurred in the case of Kyle Unger. 

Seventeen years after conviction, Unger was ultimately acquitted of the 

charges laid against him. The co-accused, Timothy Houlahan, committed 

suicide while on bail. 57 No one has since been charged or held accountable 

for the murder that unquestionably took place. And there is reason to 

believe that no one will ever be held accountable. 

To understand the reaction of the victim’s family to the Forensic 

Evidence Review, it is important to have some idea of the nature of the 

crime that had been committed. The victim, whom I will simply refer to as 

“BG,” 58 was a typical 16 year-old girl who attended a rock concert near a 

small town in rural Manitoba. She loved to dance, and be with her friends. 

Houlahan and Unger also attended, and consumed considerable amounts 

57 

Unger News Article, supra note 49. 

58 

I recognize that the name of the victim, and those of her family, have been published 

in a variety of different media. Nonetheless, I do not wish to add to the pain felt by 

the family, so I will not name BG or her family in this essay.


of alcohol—as did many others. There was evidence that Unger had 

consumed LSD. There was also evidence that BG had consumed some 

beer. BG’s main pre-occupation was dancing, which she continued to 

enjoy until around 1:30 AM. After that, things went seriously wrong. 59 

The next day, BG’s nude body was found in a creek in a heavily 

wooded part of the grounds. She had been brutally murdered and sexually 

mutilated. The Court of Appeal described the horrific scene in this 

fashion: 

The victim had suffered a terrible beating. Severe blows to the head had caused 

subarachnoid bleeding. She had been strangled. Long sharp sticks had been 

forced into both her vagina and anus. These were described as having been 

inserted with great force. There were many other injuries about the body. There 

were no signs of any "defence" wounds, that is to say injuries to the victim— 

usually to be found on the arms or hands—indicating that she had attempted to 

ward off her attacker. 60 

Understandably, BG’s parents were devastated and horrified. This was 

not the sort of thing that any loving parent could easily cope with. 

Eventually, as the charges against the two accused worked their way 

through the court system, “Mr. and Mrs. G” started to come to grips with 

what had happened. And with the conviction of Unger, they started to feel 

a sense of closure. Not necessarily relief or joy; just closure. At least they 

had some sense of what had happened to their daughter, and who was 

responsible. Twelve years later that began to unravel, when Mr. and Mrs. 

G first learned that a review had been conducted of Unger’s case. That is 

where I come in again. 61 

59 

These facts are drawn exclusively from Unger, supra note 49 at 234-236. 

60 

Ibid at 235. 

61 

A timeline of the Unger case: BG killed (June 24, 1990); Unger convicted at trial 

(February 28, 1992); Court of Appeal affirmed Unger’s guilt (July 7, 1993); Leave 

application denied (December 2, 1993); Forensic Review Committee established 

(April 23, 2003); DNA testing done on Unger case samples (June 2004); Forensic 

Review Committee reports to Deputy Minister, and recommends Unger case receive 

priority review (August 19, 2004); Deputy Minister meets with Mr. and Mrs. G (early 

September 2004); Public announcement and release of the report (September 15, 

2004); Unger files section 696.1 application with Minister of Justice (late fall 2004, 

continued in 2005); bail granted (November 4, 2005); Federal Minister orders new 

trial (March 11, 2009); three Crown announcements in Winnipeg: Unger will not be 

re-tried, no public inquiry will be ordered, and no compensation will be offered 

(October 23, 2009); Unger files $14.5 M. civil lawsuit (September 21, 2011).


The Forensic Evidence Review had commenced in April 2003. The 

Committee reported to me on August 19, 2004. On the basis of the 

Committee’s report, it was clear that Unger’s conviction was insecure. The 

Report was going to be made public. In view of the Province’s emphasis on 

and respect for the plight of victims of crime, it was important to meet 

with BG’s parents in advance of my announcement, to advise them of the 

review, and its results, so they would not be caught by surprise. One thing 

was clear to me: this was not going to be an easy meeting. 

In early September 2004, several days before the announcement, I met 

with Mr. and Mrs. G. We exchanged the usual pleasantries at the 

beginning, but body language made it clear that Mr. G was not at all 

happy. He had been given a “heads up” on what I was going to say. I 

described the establishment of the review, its purpose, and the conclusions 

reached by the Committee. Mr. G. could barely conceal his rage. His first 

question came out of the blue. It was an important one, and demonstrated 

his understanding of what had been going on during the previous decade. 

He asked, “Who decided to do this review, and why?” I advised him that I 

had made the decision. He continued in a firm and ever-increasingly 

agitated voice, “What was your mandate, and where do you get your 

authority to open up a case that was decided by a unanimous jury more 

than a decade ago?” 

After a pause that seemed endless, I explained that hair comparison 

evidence had been used at trial to convict Unger, and that type of evidence 

had been called into question in the years following Unger’s conviction. 

As a result, I continued, the Province had decided to do a review to see if 

any murder convictions in the Province deserved a closer look. That 

review, I said, led to the conclusion that Unger may be innocent. 

Mr. G. slammed his fist on the table, and thundered, “Hair evidence? 

What hair evidence? I don’t even recall that evidence being used at trial!” 

He was right in a sense: it had not been a flashy piece of evidence, and 

might even have been missed by those in attendance at the trial. 62 But it 

62 

Hair found on a sweatshirt worn by the deceased BG was “… consistent with having 

originated from the known scalp hair samples reportedly from Unger”: Forensic 

Evidence Review Report, supra note 47 at 8–13, particularly at 10. The only other 

evidence that implicated Unger at trial carried little if any probative value: a now 

discredited jailhouse informant, and the Mr. Big “admission” which did not match 

the known facts of the crime.


had been tendered by the Crown, relied upon by prosecuting counsel 

during his closing address to the jury, and was expressly relied upon by the 

Court of Appeal when affirming conviction. 63 As Mr. G. got up to leave at 

the end of the meeting, he turned around, paused briefly, and said in a 

faltering voice choked with emotion, “You know, you got the right guy to 

begin with. And now I assume he’s going to get millions of dollars out of 

this!” 

My initial instincts were right: it had not been an easy meeting. But it 

showed in very clear terms that despite the writings of some academics, 

wrongful convictions do involve a third tragic dimension: the family of the 

victim is left twisting in the wind, not able to accept that the person they 

have grown to hate may be innocent. They are often utterly unable to 

undo the passionate feelings that have been built up against that person. 

The Forensic Evidence Review had also called into question a second 

case: that of Robert Sanderson. 64 His case was a little different, as there 

was other evidence that implicated him in the murder, and Manitoba 

Justice announced that it was going to review the case once again to see if 

there was a basis to believe that a miscarriage of justice had occurred. The 

victim’s family reacted in much the same way as in the case of Unger: 

Christa Zurstegge, 66, said she remains convinced that Robert Stewart Sanderson 

helped with the killing of her son Stephan Zurstegge, despite the new DNA 

evidence that eliminates the only forensic link between Mr. Sanderson and the 

bloody scene where three men were beaten, shot and stabbed to death in 1996. 

“I’m telling you, I cannot believe this,” Ms. Zurstegge said. “This is unreal. Our 

system stinks”. 65 

63 

Unger, supra note 49 at 235 and 254. For an account of what prosecuting counsel said 

in his closing address, see: R v Unger, (26 February 1992), Winnipeg, CR91-01-11124 

(Man QB) (transcript), online: CBC . 

64 

Sanderson, supra note 49. Hair comparison evidence was referred to at paragraphs 3 

and 5 of the judgment of the Court of Appeal, although, as noted at para 95, that 

evidence was not raised as an area of concern on appeal. The primary issues were 

severance of accused and a Vetrovec witness (an unsavoury witness central to the 

Crown’s case who has an unsavoury or disreputable character: see R v Vetrovec, [1982] 

1 SCR 811, 136 DLR (3d) 89). 

65 

As recorded by Graeme Smith for the Globe and Mail: “Faulty analysis of hair samples 

sparks calls for case reviews”, The Globe and Mail, September 16, 2004, online: The 

Globe and Mail .


Subsequently, in October 2005, Manitoba announced that, despite 

the conclusions reached by the Forensic Evidence Review Committee, 

“there continues to be a strong case implicating Robert Sanderson in the 

murders, even with new information related to hair evidence used during 

his trial”. It was not, the Department concluded, “an obvious miscarriage 

of justice and the province should not endorse a federal review of it”. The 

province did, however, pledge to “fully co-operate with the process if 

Robert Sanderson pursues a federal review under Section 696 of the 

Criminal Code”. 66 At the time of writing, seven years later, no application 

has yet been brought under that provision. 

D. Manitoba’s Further Reaction 

Public reaction to the review, and the results of the review, was quite 

positive. The only criticism was that it was too narrow, and should be 

expanded beyond homicide cases. Manitoba Justice agreed. On behalf of 

the Province, I announced on September 15, 2004 that the review would 

continue—this time focusing on cases of sexual assault and robbery. 

Defence counsel were also invited “to make submissions in relation to 

individuals convicted of other indictable offences” involving microscopic 

hair comparison evidence. Once again, the Province gave the Committee 

one year to do its work, and once again committed in advance to release 

the results of the review. 67 

On September 13, 2005 the Committee reported the results of its 

review. Unanimously, the six-person multi-disciplinary review team 

concluded that there were no further cases in Manitoba falling within its 

terms of reference that required attention. Significantly, however, the 

Committee concluded its report with this observation: 

That said, this Committee feels that a review process, similar to the one currently 

in place, is essential to maintain public confidence in the administration of 

66 

Government of Manitoba, News Release, “Sanderson Case Review Complete” 

(October 28, 2005) online: Legislative Electronic Publications . See also Shannon 

Kari, “Triple-Murder case against Robert Sanderson looks very different now than 

1997”, The National Post, November 14, 2009. (reproduced online at: Pro Bono Law 

Ontario ). 

67 

“Forensic Evidence Review Committee #2: Terms of Reference”, online: 

http://www.gov.mb.ca/justice/publications/forensic/assaultrobbery.html.


justice. This in turn will require vigilance in keeping abreast of developments in 

forensic science. 68 

The gauntlet was thus thrown down. The forensic sciences required 

constant vigilance. And the issue was public confidence. Further reviews 

were required, similar to those already done. The Committee had been 

established provincially, and its authority was confined to Manitoba. 

There was, however, a subtle message: a much broader review was 

essential, perhaps even at the national level. That message was not lost on 

retired Chief Justice Patrick LeSage, who was about to start a public 

inquiry into yet another wrongful conviction in Manitoba. 69 

E. Commissioner LeSage’s Comments in the Driskell Report 

Earlier in this essay I described Commissioner LeSage’s thoughts on 

the probative value of hair microscopy evidence found in the Driskell 

report. In his report, he also considered whether there were any systemic 

recommendations that he ought to make in light of the experience in the 

Driskell case. 70 Noting AIDWYC’s recommendation to the Commission 

that Manitoba’s review be conducted on a national level, he expressed his 

agreement, and said this: 

I am concerned that the problems identified relating to hair microscopy evidence 

in Driskell’s case are not unique to his case or unique to Manitoba. I accept that 

a more extensive review of cases from across the country would be advisable, and 

encourage the Attorneys General of the Provinces and Territories to work 

together to examine how a case review similar to that conducted in Manitoba 

might be performed on a national level, and consider the appropriate parameters 

of such a review. 71 

F. Canadian Heads of Prosecutions’ Reaction 

Since the mid-1990s the heads of all prosecution services in Canada 

(“Heads”), both federal and provincial, have met semi-annually to discuss 

68 

Forensic Evidence Review Committee #2, Final Report (Winnipeg: Government of 

Manitoba, 2005) at: . 

69 

Commissioner LeSage was given his mandate by Order in Council dated December 7, 

2005, and reported to Manitoba on his conclusions on January 29, 2007. See Driskell 

Report, supra note 9 at 1. 

70 

Ibid at 156. 

71 

Ibid at 182.


issues of concern to all prosecution services. These are very much “roll up 

your sleeves” meetings that consider and plan such things as responses to 

newly emerging challenges to the Crown, the implications of recent court 

decisions and the most effective approach to professional development for 

young Crown Attorneys. 

Following release of Commissioner Cory’s report into the wrongful 

imprisonment of Thomas Sophonow, 72 in 2002 the Heads established a 

working group on the prevention of miscarriages of justice. The mandate 

of the group was to develop a list of best practices to assist prosecutors and 

police in better understanding the causes of wrongful convictions, and, 

more importantly, to recommend proactive policies and education to 

guard against future miscarriages of justice. Their resulting 165 page 

report, released in 2005, was well received—largely because, for the first 

time in any Anglo-based common law country, prosecutors and police 

joined forces on a national basis to take positive steps to reduce the risk of 

wrongful convictions. 73 The report has subsequently been cited in all levels 

of courts, applauded by the Canadian Bar Association and academia, has 

worked its way into the curricula in several law school courses, and has 

been studied at conferences internationally. 74 

In February 2007, the Heads met informally to “take the temperature” 

of provincial and federal reactions to the Driskell recommendation that 

the Manitoba review be performed on a national level. What, exactly, did 

that mean? Should there be one, overall review? If so, was it realistic to 

think that there could be unanimity on the terms of reference? Who 

72 

The Inquiry Regarding Thomas Sophonow, The Investigation, Prosecution and 

Consideration of Entitlement to Compensation (September 2001), online: 

https://www.gov.mb.ca/justice/publications/sophonow/toc.html. 

73 

Buy-in from the most senior levels of the Crown and police communities was critical 

to the success of this initiative. All Federal/Provincial/Territorial Ministers of Justice 

supported the report, and released it publicly on January 25, 2005. The Canadian 

Association of Chiefs of Police issued a statement endorsing the report, asked all 

police agencies to review their practices to ensure consistency with the report’s 

recommendations, and said this: “It is important that all players in the justice system— 

police, prosecutors, the judiciary and defence bar—work together and thereby 

effectively reduce the risk of wrongful convictions”: FPT Heads of Prosecutions 

Committee, The Path to Justice: Preventing Wrongful Convictions (Fall 2011) at ix, online: 

[Path to Justice]. 

74 

For instance, see the comments of Professor Christopher Sherrin, “Comment on the 

Report on the Prevention of Miscarriages of Justice”, (2007) 52 Crim LQ 140.


should lead the review—the federal government, who has only a modest 

role when it comes to Criminal Code prosecutions? Or a province, or 

combination of provinces? If so, which one(s)? Given provincial rather 

than federal responsibility for criminal justice in each province, was it 

more realistic for the provinces to set up a review mechanism that made 

sense in each individual jurisdiction? 

In 2011, the Heads released a detailed report on the progress that had 

been made since the release of their first report. One section of the report 

dealt specifically with the response by prosecution services to the Driskell 

Report recommendation concerning a “national” hair microscopy case 

review. 75 

Heads noted that since Commissioner LeSage’s recommendation in 

2007, “all Canadian jurisdictions have conducted reviews in different 

forms. The most formal were in Ontario and British Columbia.” 76 

In Ontario, the review was conducted in two phases, with the 

Honourable Patrick LeSage overseeing the work of the Ontario Criminal 

Conviction Review Committee. The focus was on homicide cases from 

1985 to 2000, where, as in Manitoba: the accused had pleaded not guilty, 

asserting factual innocence; s/he had unsuccessfully appealed to the Court 

of Appeal; hair evidence was tendered at trial; and hair was available for 

testing. Cases meeting the phase one criteria would then be subject to 

further review to determine the importance of the hair evidence in the 

context of the conviction. Cases raising a concern would then be referred 

for DNA testing. 77 

British Columbia likewise followed the Manitoba model, but 

expanded the scope of the review. A review committee was established, 

consisting of retired judges from British Columbia’s Supreme Court and 

Court of Appeal, a defence lawyer nominated by the UBC Law Innocence 

Project, a Deputy Chief of the Vancouver Police Department and a 

Regional Crown Counsel, who supervised the process. The committee was 

directed to examine all cases of culpable homicide, sexual assault, robbery 

and other indictable offences including the use or attempted use of 

violence which: were prosecuted during the preceding 25 years; involved 

75 

Path to Justice, supra note 73 at 153-154. 

76 

Ibid. 

77 

Ibid at 154.


hair microscopy evidence; where the accused pleaded not guilty, asserting 

factual innocence and had been unsuccessful in attempts to appeal on the 

merits to the Court of Appeal. 78 

In their report, the Heads reported that the BC review committee 

ultimately reviewed two homicide and two sexual assault cases, and 

“unanimously concluded that there was no reasonable basis to believe 

that, by virtue of the hair microscopy evidence, a miscarriage of justice 

ha[d] taken place in the convictions against the four individual accused 

persons”. 79 

V. SOME CONCLUDING OBSERVATIONS 

The criminal trial has traditionally been seen as the epicentre of 

substantive and procedural protections designed to avoid miscarriages of 

justice. That is the point in the criminal justice continuum where: an 

accused is presumed innocent; the prosecution bears the burden of 

proving its case beyond a reasonable doubt; the accused is entitled to the 

effective assistance of counsel; prosecution witnesses may be crossexamined 

in public; and the prosecution is required to provide the 

accused with “open file” disclosure, subject to very narrow exceptions 

which are judicially-supervised. And, in an overarching sense, the trial 

process in Canada accepts Blackstone’s admonition that at trial “it is 

better that ten guilty persons escape, than that one innocent suffer”. 80 

In recent years, developments both nationally and internationally have 

forced a re-examination of whether the trial is actually the best—and only— 

setting for the determination of substantive innocence. Some have argued 

forcefully that while the trial process is reasonably well equipped to make 

78 

Ibid at 153. 

79 

Ibid at 154. 

80 

William Blackstone, Commentaries on the Laws of England [Book the Fourth] (Oxford: 

The Clarendon Press, 1769) at 352 (in later editions it is often cited as 358). Though 

usually attributed to Blackstone, this proposition can be traced back in time through 

Benjamin Franklin, Fortescue, Maimonides and the Bible (Genesis 18: 23-32). See 

Glanville Williams, The Proof of Guilt 2d ed (London: Stevens and Sons Limited, 

1958), at 155–158; and Alexander Volokh, “Guilty Men”, 146 U Pa L Rev 173 

(1997), who trace the doctrine back as far as ancient Greece and Rome.


determinations of guilt or innocence, “the reality is that substantive 

innocence is often detected most accurately either before or after trial”. 81 

In Canada, post-conviction disclosure requirements have led to the 

discovery of new evidence sufficient to overturn long-standing guilty 

verdicts in a wide variety of circumstances. 82 Intense and often unrelenting 

media or pro bono defence investigations have placed trial verdicts under 

unprecedented scrutiny. And internationally, the rapid escalation in the 

quality of medical and scientific evidence has meant that, perhaps for the 

first time in history, certain types of evidence can actually become more 

explainable and infinitely more precise through the passage of time. 83 

Where does that leave the foundational principles that underlie our 

criminal justice system? What about the high premium that we 

traditionally have placed on the finality of criminal proceedings? 84 Is it 

even appropriate to engage in a post-conviction fact finding process? Isn’t 

that the very purpose of a trial, with all of the safeguards under the Charter 

of Rights and Freedoms that are guaranteed to an accused whose liberty is at 

stake—not to mention the trial protections that have been crafted by the 

courts over the centuries? And just what are the procedural protections for 

an accused once all trial and appellate proceedings are complete? Or is it a 

procedural free-for-all in pursuit of the truth? 

American courts have been greatly influenced by these concerns. The 

judiciary and scholars in that country continue to debate whether an 

inmate is entitled to advance a “freestanding innocence claim”—i.e., an 

81 

Robert J Smith, “Recalibrating constitutional innocence protection,” 87 Wash L R 

139 at 144. 

82 

There are a number of cases illustrating this point, but perhaps the most well-known 

are re: Truscott, 2007 ONCA 575, 225 CCC (3d) 321; the case of James Driskell, supra 

note 69; the case of Thomas Sophonow, supra note 72; and the case of Guy Paul 

Morin, supra note 13. The scrutiny was perhaps the most intense in the case of 

Thomas Sophonow. 

83 

Robert J Smith, supra note 81 at 142. Obvious examples include some of the forensic 

sciences, eyewitness identification and confessions later shown to be false. 

84 

R v Wigman, [1987] 1 SCR 246 at para 21, 38 DLR (4th) 530 in dissent, but not on 

this point: “Finality in criminal proceedings is of the utmost importance”; R v 

Mahalingan, 2008 SCC 63 at paras 30, 38, 46–47 and 75, [2008] 3 SCR 316; R v 

Brown, [1993] 2 SCR 918 at 923, 105 DLR (4th) 199; R v Rollocks (1994), 19 OR (3d) 

448 at 453, 91 CCC (3d) 193 at 199 (CA); R v EGM. 2004 MBCA 43, [2006] 2 

WWR 433; R v Shologin, 2005 MBQB 255 at para 11, 200 Man R (2d) 318.


assertion detached from the Due Process Clause which contends that new 

evidence of factual innocence warrants relief, despite the fact that the 

conviction came as a result of a constitutionally secure trial. 85 Robert J. 

Smith, presently a Visiting Assistant Professor at DePaul University 

College of Law in Chicago, quite fairly frames the issue in the United 

States in this fashion: 

[O]nce the trial is over and the prosecution has met its heavy burden, the 

presumption of innocence disappears. The accused is now the convicted. 

Considerations other than the interests of the convicted person come into play. 

The need for society to obtain finality in criminal judgments, to preserve scarce 

judicial resources, and to respect the judgment of other courts that decided the 

case must be factored into how we treat challenges to a conviction. The question 

at this stage is not whether the Constitution permits the incarceration or 

execution of an innocent person. Instead, the issue is whether the Constitution 

requires a court to revise a jury determination of guilt if the prisoner 

subsequently demonstrates his factual innocence to some predefined degree of 

certainty. 86 

The US Supreme Court has been reluctant to provide post-conviction 

relief on the basis of a claim to actual innocence. On three occasions over 

the past 18 years, most recently in 2009, the Supreme Court has been 

prepared to assume, arguendo, that there may be a constitutional right to 

challenge a conviction based on “truly persuasive” evidence of “actual 

innocence”. But in all three cases, the Court declined to affirm that such a 

right exists, effectively keeping it hypothetical in nature. 87 This state of 

affairs prompted a US judge to write an essay asking whether innocence 

was even relevant any longer—rather than being, as he argued it should be, 

the main preoccupation of judges hearing criminal cases. 88 

In Canada, innocence is not just relevant; when established, it is 

dispositive. The approach in this country has been typically Canadian: less 

dogma; more pragmatism. That takes us full circle back to the Manitoba 

“experiment”, and how that fits within the innocence protection 

85 

Robert J Smith, supra note 81 at 147. 

86 

Ibid at 152. 

87 

Herrera v Collins, 506 US 390 (1993); House v Bell, 547 US 518, (2006); Osborne v 

District Attorney’s Office, 129 S Ct 2308, (2009). And see Skinner v Switzer, 562 US 

(2011) [slip op, p 2], 131 S Ct 1289, where the Court explained its refusal in Osborne 

to order post-conviction DNA testing that could establish innocence, or confirm guilt. 

88 

Henry J Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments”, 

38 U Chi L Rev 142 (1970).


framework that has developed in this country. As I will now show, 

Canada’s legal policy concerning miscarriages of justice has developed at 

the “top end” of the justice system, and over the years has cascaded 

downward—shaping the approach of appellate and trial courts, the legal 

profession, and the law enforcement community. 

At the “top end”, Parliament and the Supreme Court of Canada have 

both expressed concern over the prospects of wrongful convictions, in 

different ways of course. Section 696.1 of the Criminal Code provides an 

avenue for review to anyone convicted under a federal enactment whose 

right to an appeal has been exhausted. That remedy has been in place 

since Canada’s first Criminal Code was passed in 1892. 89 Over the years, 

the precise mechanism for review has been controversial, and has 

evolved, 90 but everyone is in agreement on three things: the review 

standard is described in law, has been in place for 120 years, and is applied 

on a uniform basis throughout the country. 

The Government of Canada, likewise, has been prepared to order 

References to the Supreme Court where there was reason to believe that a 

wrongful conviction may have occurred, 91 and in no less than seven 

separate cases provincial governments have ordered judicial commissions 

of inquiry to determine why a miscarriage of justice occurred. 92 

Government’s message to the public has been dramatic: more judicially-led 

inquiries have been called on the issue of wrongful conviction than any 

other single issue facing Canadians since Confederation. Some were 

focused on error correction in the case under consideration; most, 

89 

The Criminal Code, 1892, 55-56 Victoria, c 29, s 748. 

90 

The controversy is well examined in a series of essays published in the Criminal Law 

Quarterly in 2012. They are conveniently summarized by Kent Roach, Professor of 

Law and Prichard-Wilson Chair in Law and Public Policy at the University of 

Toronto, and Managing Editor of the Criminal Law Quarterly: “Editorial: Criminal 

Case Review Commissions and Ministerial Post-Conviction Review” (2012), 58 Crim 

LQ 135. 

91 

Re R v Coffin, [1956] SCR 191, 114 CCC 1; Re Steven Murray Truscott, [1967] SCR 

309, 62 DLR (2d) 545; Re Milgaard, [1992] 1 SCR 866, 71 CCC (3d) 260. And once 

to a provincial Court of Appeal in Re Truscott, 2007 ONCA 575, 225 CCC (3d) 321. 

92 

Donald Marshall, Jr (Nova Scotia, 1989); Guy Paul Morin (Ontario, 1998); Thomas 

Sophonow (Manitoba, 2001); Ronald Dalton, Gregory Parsons and Randy Druken 

(Newfoundland and Labrador, 2006); James Driskell (Manitoba, 2007); David 

Milgaard (Saskatchewan, 2008) and the Inquiry into Pediatric Forensic Pathology in 

Ontario (2008).


however, were broadly-based, and sought advice on the systemic forces at 

play to avoid miscarriages of justice in the future. 

The judiciary has been no less concerned. During the past two 

decades, the Supreme Court of Canada has delivered a lengthy and 

powerful line of decisions that signal the need to interpret Canadian 

criminal law—and if necessary re-shape it—in light of the reality that a 

number of wrongful convictions have occurred in this country. 93 And the 

Court itself has not hesitated to remand a case to a court of appeal for 

consideration of fresh evidence and an assessment of whether a conviction 

constituted a miscarriage of justice—even 11 years after the Court of 

Appeal had entertained an appeal and affirmed conviction. 94 Even when 

an application for leave to appeal is simply pending, that Court has 

confirmed that it has jurisdiction to release a trial exhibit for testing—a 

step undoubtedly inspired by the incidence of wrongful convictions. 95 

This overarching philosophy has cascaded down to provincial courts 

of appeal in a variety of different scenarios. Most demonstrate a 

willingness to allow a case that has otherwise exhausted available appellate 

remedies to be reconsidered where it appears that a miscarriage of justice 

has probably occurred. The rationale for reconsideration so many years 

after convictions had been entered and affirmed on appeal (and in the face 

of the principle of finality) has varied with the circumstances, and on 

occasion could be characterized as innovative. 

The easiest scenario is where a prosecution resulted in a conviction, 

and was not appealed at the time. Applications for leave to extend the 

time within which an appeal can be brought before the Court of Appeal 

can be commenced even decades later—although it is certainly helpful to 

have developed the defence case to the point where the Crown is prepared 

93 

R v Starr, supra note 41; USA v Burns, 2001 SCC 7 at paras 1-3, [2001] 1 SCR 283; R v 

McClure, 2001 SCC 14 at para 40, [2001] 1 SCR 445; R v Mapara, 2005 SCC 23 at 

para 54, [2005] 1 SCR 358; Hill v Hamilton-Wentworth Regional Police Services Board, 

2007 SCC 41 at paras 36 and 43, [2007] 3 SCR 129; R v Trochym, 2007 SCC 6 at para 

1, [2007] 1 SCR 239; R v Khela, 2009 SCC 5 at paras 2 and 12, [2009] 1 SCR 146; R v 

Sinclair, 2012 SCC 35 at para 90, [2010] 2 SCR 310, Binnie J in dissent; R v DAI, 

2012 SCC 5 at paras 1, 65 and 91, 345 DLR (4th) 385. 

94 

R v Marquardt, before the Supreme Court at [2009] SCCA 17 (available on WL Can), 

and subsequently before the Court of Appeal at: 2011 ONCA 281 (available on WL 

Can). 

95 

R v Hay, 2010 SCC 54, [2010] 3 SCR 206.


to consent to the extension. 96 Even where the accused entered a plea of 

guilty at trial, Courts of Appeal retain a discretion, to be exercised in the 

interests of justice, to receive fresh evidence explaining the circumstances 

leading to the plea, and may set aside the guilty plea, allow the appeal and 

set aside the original conviction—despite the passage of many years. 97 

In 2007, the Ontario Court of Appeal examined the interrelationship 

between the principle of finality and the importance of maintaining the 

integrity of the criminal justice system in the context of a Reference back 

to the courts pursuant to section 696.3(3)(a)(ii) of the Criminal Code. In Re 

Truscott, 98 the court was asked to consider the case “as if it were an appeal 

by the convicted person”. 99 It had several extraordinary features: almost 

fifty years had passed since the time of the offence; the conviction entered 

at trial had proceeded through the normal appellate process; even after 

that, the defendant had been given a rare opportunity to challenge the 

Crown’s case and present a defence before the Supreme Court of Canada; 

and the case had been subject to intense scrutiny in a variety of nonjudicial 

forums. As the court put it: “Probably no other case in Canadian 

history has engaged the same level of judicial analysis and sustained public 

interest over so many decades”. 100 

In the 2007 Reference, the Minister of Justice noted that new 

information had been brought forward which had not been presented at 

either the trial or on the first Reference to the Supreme Court of Canada. 

96 

Criminal Code, RSC 1985, c C-46 s 678(2). While the Code is silent on the criteria to 

be considered on a motion to extend, appellate courts have generally suggested that an 

applicant should be able to demonstrate that they had a bona fide intention to appeal 

within the appeal period: R v Meidel (2000), 2000 BCCA 39, 148 CCC (3d) 437; R v 

Menear (2002) 162 CCC (3d) 233 (available on WL Can) (Ont CA); Re Hayes and The 

Queen (2007), 226 CCC (3d) 417 (Ont CA). In these types of situations that will not 

generally have been the case, so in the absence of Crown consent the argument will 

have to be advanced in terms of an overriding need to avoid a miscarriage of justice: R 

v Truong 2007 ABCA 127 at para 6, 404 AR 277: R v Arganda 2011 MBCA 24 at para 

6-7, 269 CCC (3d) 88. 

97 

R v M(C), 2010 ONCA 690 (available on WL Can); R v F(C), 2010 ONCA 691 

(available on WL Can); R v Brant, 2011 ONCA 362 (available on WL Can); R v 

Kumar, 2011 ONCA 120, 268 CCC (3d) 369; R v Hanemaayer, 2008 ONCA 580, 234 

CCC (3d) 3; R v Sherret-Robinson, 2009 ONCA 886 (available on WL Can). 

98 

2007 ONCA 575, 225 CCC (3d) 321. 

99 

Ibid at para 69. 

100 

Ibid at para 71.


On his review of this new information, the Minister was “[…] satisfied that 

there is a reasonable basis to conclude that a miscarriage of justice has 

occurred.” 101 The Court of Appeal was not, of course, bound by the 

Minister’s conclusion. However, the Court observed that the Minister’s 

concerns “[…] must influence our approach to concerns associated with 

the integrity of the criminal justice system when this court considers 

whether to admit evidence proffered on behalf of the appellant in these 

proceedings.” 102 

Put simply, normal rules respecting the reception of fresh evidence on 

appeal, and the importance of the principle of finality could not be 

allowed to trump a case which otherwise established that a miscarriage of 

justice had occurred. The Court’s pivotal conclusion in this respect was as 

follows: 

Moreover, the public interest in preserving the finality of trial verdicts may be 

different when considering the “interests of justice” on a reference directed 

under s. 696(3)(a)(ii). The Minister, exercising the statutory authority given to 

him by Parliament, has directed this court to consider whether the appellant’s 

conviction represents a miscarriage of justice in the light of new information. By 

directing this Reference, the Minister has reopened the appellant’s conviction for 

further judicial scrutiny. This is obviously an extraordinary step, and even more 

so in this case where there has already been one reference. By ordering this 

Reference, the Minister has determined that the integrity of the criminal justice 

system demands a reassessment of the reliability of the conviction and the result 

of the first Reference, with the advantage of any fresh evidence that this court 

decides to receive. 103 

In the result, the Court concluded that “having regard to the highly 

unusual circumstances of this Reference”, the most appropriate remedy 

was to allow the appeal, set aside the conviction for murder, and enter an 

acquittal.” 104 

The high-water mark in the granting of a judicial pathway to remedy 

an apparent miscarriage of justice may well be the case of Ivan William 

Mervin Henry, decided by the BC Court of Appeal in 2010. 105 In 1983, 

101 


102 


103 


104 

Ibid at para 787; to the same effect, see R v White, 2010 ONCA 474 (available on WL 

Can). 

105 

R v Henry, 2010 BCCA 462, 262 CCC (3d) 307.


Henry was charged with and convicted of 10 counts of sexual assault 

involving eight complainants. The Crown’s case was razor-thin; perhaps 

non-existent. Henry had insisted on representing himself. After 

conviction, he was declared a dangerous offender, and sentenced to an 

indefinite period of imprisonment. 

For the next three decades, Henry asserted his innocence in a battery 

of applications before the trial court, Court of Appeal, and the Supreme 

Court of Canada. He was unsuccessful in all of them. 106 But the 

evidentiary sands started to shift in 2002. Police re-investigated his case. 

Prosecutors started to believe that he may have been innocent. British 

Columbia appointed an independent counsel to investigate the case; he 

recommended that the Crown not oppose a motion to re-open the case— 

even though the verdict had literally been etched in stone for 25 years. 

In 2010, the British Columbia Court of Appeal ruled that despite an 

intensive judicial examination of the case during the preceding three 

decades, including two unsuccessful appeals to the Court of Appeal 

itself, 107 the interests of justice required “that the order dismissing (this) 

appeal in 1984 be set aside and [this] appeal [be] re-opened for 

consideration on its merits.” 108 

Because a miscarriage of justice appeared to have occurred, the Court 

was prepared to overlook what might otherwise have been significant 

procedural impediments, including the principle of finality, and provide a 

route back into the court system in circumstances that it described as 

“exceptional”. 109 

Put simply, as in the Truscott case, process was not allowed to outweigh 

considerations of fairness. After a full hearing before the Court of Appeal, 

the appeal launched in 1984 was re-opened 26 years later, the convictions 

were quashed, and acquittals were entered on all counts. 110 

106 

Ibid at paras 20-23. 

107 

The first, in 1984, was dismissed for want of prosecution; the second, in 1997, was 

dismissed on the basis that the notice of appeal raised issues of fact, not law: ibid at 

paras 20 and 23. See also R v Henry, 100 BCAC 183 (available on WL Can). 

108 

Supra note 105 at para 32. 

109 

Ibid at paras 23 and 32. 

110 

Ibid at para 155. It should be noted that this is not a case where forensic science 

changed; rather, the case is cited to provide an illustration of how the courts can find 

a route to provide a remedy where the facts call out for one. It should also be noted 

that this case resulted in an acquittal—not just a new trial, as often occurs despite


The philosophy that innocence really does matter continues to cascade 

down to the trial courts, the profession and the law enforcement 

community. 

In 2003, a trial court in Ontario surprised many in the legal 

community when it concluded that, despite the absence of any statutory 

authority, the courts are empowered to grant bail to serving inmates while 

their section 696.1 application is pending before the Minister of Justice. 

That ruling has since been followed by three more trial courts, through to 

at least 2009. 111 

The cascade hit street level, so to speak, in 2005 when prosecutors and 

police joined forces in the issuance of a report recommending a series of 

proactive policies and education designed to guard against future 

miscarriages of justice. 112 As I noted earlier in this essay, 113 the report was 

well received by the profession, and led to the issuance of an even more 

detailed update report in 2011, which was intended to keep the 

momentum of change ongoing. That report recounted the Manitoba 

forensic evidence review, and described the steps taken by other provinces 

to conduct similar forensic double checks. 

The Manitoba initiative raised a number of difficult issues at the time 

it was launched. But, as I have shown, two things are clear: first, the review 

had a strong legal foundation, as the Crown was discharging its wellestablished 

“minister of justice” role, albeit in an innovative and proactive 

way. Second, the initiative was entirely consistent with a much bigger legal 

movement in Canada—one which encourages every justice system 

participant from Parliament and the Supreme Court, to trial judges, 

practitioners and police officers, to be aware of the risk of convicting the 

innocent, and to take whatever steps are within their power to reduce that 

risk. 

vigorous arguments that the facts of the case justify an outright termination of the case 

through an acquittal: concerning the latter, see R v F(C), supra note 97; R v M(C), supra 

note 97; Marquardt, supra note 94; and, especially, R v Phillion, 2010 ONSC 1604, 256 

CCC (3d) 63 [Phillion]. 

111 

Phillion, ibid; Driskell v Canada, supra note 52; Unger v Canada, supra note 52; Ostrowski, 

supra note 52. 

112 

Within the defence bar, the cascade hit street level a bit earlier. See the discussion of 

AIDWYC supra note 46. 

113 

Supra notes 66–73 and accompanying text.

36 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 

Against that backdrop, it is not surprising that the Crown in Manitoba 

was willing to reach back and do a double check, to ensure that there was 

no one in jail who had been improperly convicted as a result of hair 

microscopy evidence. And it is particularly reassuring that all provinces 

were ultimately prepared to follow Manitoba’s lead, and participate in a 

national double check. 

In the fullness of time, prosecution services in Canada may wish to 

consider the establishment of permanent conviction review mechanisms 

within each Ministry to ensure the continued integrity of guilty verdicts in 

contentious cases. Indeed, “Conviction Integrity Units” embedded within 

prosecution offices have recently been established in several jurisdictions 

in the US. 114 In the meantime, what Canadians can expect now is a 

prosecution service that is willing, on an ongoing basis, to root around 

and do a principled and credible double check on cases where there is a 

reasonable basis to believe that miscarriages of justice may have occurred, 

and Crown action could uncover the truth of what happened. After all, 

truth-seeking does form a critical objective of the criminal justice system, 

and everyone in the legal profession has a special duty to ensure that the 

public has and continues to have confidence in our legal system. 

114 

The first was established by the District Attorney in Dallas, Texas in 2007: 

http://dallasda.co/webdev/?page_id=73. A similar initiative was announced in 

March, 2010 in New York: . 

Since then, like initiatives have been established in Illinois, Michigan 

and California. For a thought-provoking commentary on the subject, see: Barry 

Scheck, “Professional and Conviction Integrity Programs: Why We Need Them, Why 

They Will Work, and Models for Creating Them”, 31 Cardozo Law Review 2215 at 

2248 (2010): found online at .

Manitoba Hydro and Electricity 

Undertakings in Developing Countries: 

The Case of Nigeria 

Y E M I O K E 


T 

he Nigerian government’s invitation to Manitoba Hydro 

International Inc. (“Manitoba Hydro”) to take over the 

management of the Transmission Company of Nigeria (“TCN”) 

presents a mixed reality. First, the efficiency of Nigeria’s electric power 

sector has, through over-centralized governance and administration, been 

made needlessly difficult and shrouded in secrecy. Also contributing to the 

challenges of the sector is the fact that Nigeria’s power sector stands in 

close proximity to corruption, like its sister oil and gas industry. 

Manitoba Hydro has been invited by the Nigerian government to bid 

for the management of TCN. 1 The corporation’s sound financial and 

technical bids were all the Nigerian government needed to achieve the 

desired breakthrough in its five-year search for competent firms to manage 

the most crucial of the successor companies formed in the wake of the 

electric power sector reforms which began in 2000. 

For Nigeria, electricity is indispensable to national growth and 

economic development, 2 and energy is widely acknowledged by energy 

 

LL.B (Ilorin), LL.M (Osgoode), Ph.D (Osgoode). Dr. Oke is a lecturer at the Faculty of 

Law at the University of Lagos in Nigeria. He has served as counsel for several leading 

law firms in Nigeria, and taught at York and Ryerson Universities. 

1 

See Remi Koleoso, “Federal Government, Canadian Firm in N3.7 Billion Naira 

Power Transmission Deal” Compass Newspaper (4 April 2012) 1, 8, and 12. See also 

Everest Amaefule, “Electricity: Canadian Firm Demands N3.72 Billion Naira to 

Manage Transmission Company,” The Punch Newspaper (4 April 2012) at 1, 19. 

2 

See Yemi Oke, “Beyond Power Sector Reforms: The Need for Decentralized Energy


experts and scholars as a prerequisite to economic growth and 

development. 3 Nigeria has made an attempt at keeping pace with global 

trends in electricity governance through the enactment of the Electric Power 

Sector Reform Act 2005 (the EPSR Act) 4 which aims to bring about a 

private-sector driven electricity sector in the country. But the reality on the 

ground shows that the pace of reform has been slow and seemingly 

unattractive to private investors, who still perceive the Nigerian electricity 

sector as significantly risky. Also contributing to apparently inactive private 

sector involvement in the new electricity regime in the country is a host of 

socio-political issues: security, corruption, host community concerns, and 

the profitability/bankability of electricity ventures or undertakings in 

Nigeria. 

Having won the bid, Canadian energy giant 5 Manitoba Hydro is about 

to venture into a transmission management contract with the Nigerian 

Options (DEOPs)” (2012) 18:1 Nigerian Journal of Contemporary Law, University of Lagos, 

67 at 68-71. See also Yemi Oke, “National Grid or National Greed”, The Punch 

Newspaper (7 December 2011) 14 and (8 December 2011) 16. 

3 

See FT Sparrow; William A Masters and Brian H Bowen, “Electricity Trade and 

Capacity Expansion Options in West Africa” Purdue University Institute for 

Interdisciplinary Engineering, online at: , at 

page 5, accessed April 15, 2012. Accordingly, shortages of electricity are a severe 

constraint on economic growth and poverty alleviation in West Africa. The lack of 

electricity is often exacerbated by shortages of imported fuel, wood/charcoal, and 

other forms of energy. The high cost and unreliability of energy supplies is a handicap 

for industrial development and employment generation, and also for poverty 

alleviation and public health in the region. 

4 

See Electric Power Sector Reform (EPSR) Act 2005, Cap E7, Laws of the Federation of 

Nigeria (LFN), 2004. 

5 

Manitoba Hydro is an electric power and natural gas utility company in Winnipeg, 

Canada, and currently operates 15 interconnected generating stations and serves over 

537,000 electric customers throughout Manitoba and 265,000 natural gas customers 

in various communities throughout southern Manitoba. The company maintains a 

position of being among the lowest cost providers of domestic electricity rates in 

Canada. Essentially, it generates nearly all its electricity from self-renewing water 

power from 14 hydroelectric generating stations, primarily on the Winnipeg, 

Saskatchewan and Nelson Rivers. Its world-class technical and organizational 

capabilities have enabled it to perform power sector works in over 60 countries. For 

detailed facts about the activities of the company and profile see “Manitoba Hydro,” 

online at: , 

accessed April 6, 2012, and “Manitoba Hydro International,” online at: 

, accessed August 23, 2012.

Manitoba Hydro and Electricity Undertakings 39 

government for improving electricity transmission and a general 

turnaround of the country’s electricity sector. This paper analyzes 

anticipated challenges and prospects of the project given certain realities 

and other overarching issues that might impact the deal in the host 

country, Nigeria. 

The objective of this paper is not to scare Manitoba Hydro away from 

its new electricity undertaking in Nigeria. Nor is it my intention to flag 

Nigeria as a dangerous zone to would-be direct or indirect investors in 

electricity, or to undermine technical partnering. There is a dearth of 

Nigerian literature on electricity law and regulation, and this paper aims to 

raise the level of consciousness of the parties and other stakeholders to 

likely challenges to the deal. It outlines some of the factors and steps to be 

taken in mitigating or neutralizing potential threats, as the project is 

crucial to the Nigerian people. This paper also hopes to provide Canada, 

through Manitoba Hydro as its corporate citizen, with an additional 

opportunity to lead by example in corporate behaviour and social 

responsibility in developing countries, particularly in Sub-Saharan Africa. 

II. OVERVIEW OF THE NIGERIAN ELECTRICITY REGIME 

The history of electricity in Nigeria dates back to 1896 under the 

colonial rule, when electricity was first produced in the Ijora area of Lagos 

by the British Colonial Government. 6 The country subsequently witnessed 

a significant development in electricity generation with the establishment 

of the Nigerian Electricity Supply Company (NESCO), which commenced 

operations as an electric utility company with the construction of a hydroelectric 

power station at Kuru, near Jos in Central Nigeria. 7 NESCO 

commenced operations in 1929, pursuant to the Electricity Ordinance Act 

of that year, 8 as a hydro-electric power station, serving mainly the northern 

part of the country. 

In 1946, the colonial government overtook electricity governance by 

establishing the Public Works Department (PWD). Four years later, 

6 

Niger Power Review: “Development of Electricity Industry in Nigeria (1960-1985),” 

1985, 1-6. 

7 

CM Nkiruka, “Unbundling and Privatisation of the Nigerian Electricity Sector: 

Reality or Myth? (LL.M paper, CEPMLP, University of Dundee), 2010 at 2. 

8 

See Electricity Ordinance Act of 1929.


pursuant to the Electricity Corporation Ordinance of 1950, the Legislative 

Council transferred responsibility for electricity supply and development 

to a central body known as the Electricity Corporation of Nigeria (ECN). 9 

The Niger Dams Authority (NDA) was also established about the same 

period by an Act of Parliament. The NDA was responsible for the 

construction and maintenance of dams and other works on the River 

Niger and elsewhere, and was statutorily responsible for generating hydroelectricity. 

10 The energy produced by the NDA was sold to ECN for 

distribution and sales as utility voltages. This represents a classical regime 

of electricity governance in which power generation was separated from 

distribution, as is currently being promoted under the new reforms. 

Fusion of generation and transmission in Nigeria began formally on 

April 1, 1972 when amalgamation of the ECN and the NDA was effected 

by a military decree, the National Electric Power Authority Decree No. 4, 11 to 

form a new organization known as the National Electric Power Authority 

(NEPA). NEPA replaced both the ECN and the NDA, and was mainly 

and exclusively responsible for the generation and distribution of 

electricity in Nigeria. 12 The rationale offered for the merger was that: 

“… It would result in the vesting of the production and the distribution of 

electricity power supply throughout the country in one organization which will 

assume responsibility for the financial obligations. The integration of the ECN 

and NDA should result in a more effective utilization of the human, financial 

and other resources available to the electricity supply industry throughout the 

country”. 

13 

The objective of the merger of the ECN and the NDA is far from 

being realized, as NEPA was established as a vertically-integrated monopoly 

responsible for the generation, transmission and distribution of power in 

9 

The Electricity Corporation of Nigeria (ECN) was created by the Electricity Corporation 

Ordinance No 15 of 1950. 

10 

N Manafa, Electricity Development in Nigeria, (Rasheen Publisher: Lagos, 1995), at 37- 

51. 

11 

See the National Electric Power Authority Decree No 4, Signed on June 7, 1972 [NEPA 

Decree]. 

12 

See OI Okoro, P Govender and E Chikuni, “Power Sector Reforms in Nigeria: 

Opportunities and Challenges” (unpublished paper) 2000 at 1-10. 

13 

Niger Power Review: “Development of Electricity Industry in Nigeria (1960-1989)”, 

1989, at 10-15.


Nigeria. By virtue of the NEPA Decree, 14 all commercial electric supply was 

the exclusive preserve of NEPA. This monopoly continued until the 

regime of privatization and commercialization in 1988. 

The commercialization and privatization regime 15 listed NEPA as one 

of the state enterprises to be commercialized. The activities of the 

Technical Committee on Privatization and Commercialization (TCPC) 

otherwise called the committee on privatization, led to the enactment of a 

new NEPA Act 16 to replace the old NEPA Decree of 1972. The new NEPA 

Act re-established NEPA as a commercial and self-accounting authority 

with powers to develop and maintain an efficient, coordinated and 

economically viable electricity supply in every part of Nigeria. 17 NEPA was 

also vested with powers over all assets of existing institutions and bodies. 18 

License could be obtained by an independent body to supply electricity in 

accordance with the terms of the licensing authority. 19 The NEPA Act also 

regulated and controlled all aspects of electricity in Nigeria: electrical 

installations, generation, supply, consumption and others. The legal 

framework of electricity in the NEPA era included the now-repealed NEPA 

Act and the four regulations made pursuant to it. 20 

Aside from the NEPA Act and regulations made pursuant thereto, a 

number of statutes also provided ancillary electricity sector governance 

during the NEPA era. For example, the Energy Commission of Nigeria Act, 21 

provides for a body called the Energy Commission of Nigeria with 

responsibility for coordinating and maintaining general surveillance over 

the systematic development of the various energy resources in Nigeria. 

Like the Energy Commission of Nigeria Act, the Utilities Charges Commission 

Act 22 vests its Commission with the power to regulate tariffs charged by 

14 

Supra note 11. 

15 

See the Commercialization and Privatization Decree No 25, 1988. 

16 

See the repealed NEPA Act Cap 106, Laws of the Federation of Nigeria (LFN) 1990. 

17 

Ibid, s 1. 

18 

Ibid, s 5. 

19 

Ibid, s 3. 

20 

These regulations are: Electricity Supply Regulations; Electricity Wiring Regulations; 

Electricity (Private licenses) Regulations, and Electricity (Annual Returns) Regulations. 

21 

The Energy Commission of Nigeria Act, Cap E 10, Laws of the Federation of Nigeria 

(LFN), 2004. 

22 

The Utilities Charges Commission Act, Cap U 17, Laws of the Federation of Nigeria 

(LFN) 2004.


public utilities, such as NEPA. It is instructive to note that the utilities 

Charges Commission Act does not apply under the regime of EPSR Act 

2005. A jurist laments: 

The legislation in Nigeria, which provides for public utilities, the Utilities Charges 

Commission Cap U 17 LFN 2004, incidentally has no application when it comes 

to the electric sector. Section 98(5) of the EPSR Act 2005 makes sure of this in 

the following words - ‘The provisions of the Utilities Charges Commission Act… as 

amended, shall not apply to any person whom a license has been issued under this Act, in 

respect of the licensed activities of that person.’ … Although utility regulation is 

essentially statutory and hence a legislative function, not just any business can be 

made utility by passing a statute. Regulation of utilities must be in harmony with 

the state’s power to protect health and general welfare of the citizens. 23 

Notwithstanding the above, it needs to be clarified that the Utilities Charges 

Commission Act applied to the regime of electricity governance in Nigeria 

under the defunct NEPA, as part of the larger regulatory framework of 

electricity in the country. Also forming part of the old electricity 

governance regime is the Environmental Impact Assessment Act, 24 which 

proscribes that mandatory environmental impact assessments should be 

undertaken in respect of the power and related projects specified in the 

Act. 25 It is implied that this includes undertakings under the transmission 

management contract of Manitoba Hydro in Nigeria. 

The Nigerian regime of electricity governance subsequently witnessed 

a major shift towards liberalization of NEPA’s monopolistic status in the 

sector. The Electricity Act of 1990 was amended in 1998 by virtue of a 

military decree (now Act). 26 The amendment stripped NEPA of its 

monopoly, in terms of power generation, to pave the way for independent 

power producers (IPPs) in the country. The slogan of the new regime is 

liberalization, which gave rise to full-blown reforms that eventually led to 

repeal of the NEPA (Amendment) Act and regulations made pursuant 

23 

Kanyip, BB (J) “Protecting the rights and interests of consumers in the Electric Sector” 

(paper delivered at the Seminar for Judges on Regulation in the Power Sector 

organised by the Nigerian Electricity Regulatory Commission (NERC) in collaboration 

with the National Judicial Institute (NJI), held at Asaa Pyramid Hotel, Kaduna, 12-14 

July 2010) at 8. 

24 

See the Environmental Impact Assessment Act, Cap E 12 Laws of the Federation of 

Nigeria (LFN) 2004 [the EIA Act]. 

25 

Ibid, s 12 of the EIA Act. See also Schedule 13 of the Act which lists “Power 

generation and transmission” as part of Mandatory Study Activities. 

26 

See the Electricity (Amendment) Act, No 28 of 1998.


thereto, as well as dissolution of NEPA and its replacement with the 

Power Holding Company of Nigeria (PHCN), as part of the large-scale 

reform in Nigeria’s electricity sector under the EPSR Act, 2005. 27 

The current regime of power sector reform began in 2000 with the 

implementation of the Electric Power Implementation Committee (EPIC). 

The committee drafted the National Electric Power Policy (NEPP) in 2001 

leading to the 2005 Act. 28 The electricity governance model of Nigeria 

under the NEPA is radically different from the regime of the EPSR Act, 

2005. 29 A major difference is that the NEPA Act intended a wholly stateowned 

and government-controlled electricity sector in Nigeria. NEPA 

merely served as a statutory body to effectuate state monopoly in the 

sector. 30 The EPSR Act expressly provides for a liberalized regime of 

electricity, and promotes competition and level playing field in the power 

sector. It embraces radical, private sector involvement by way of direct and 

indirect investments, including technical partnerships like Manitoba 

Hydro’s transmission management deal with the Nigerian government. 

Such legislation signifies sharp differences and shifts in the old paradigm 

of a state monopoly of electricity governance in the Nigerian electric 

power sector. 31 

27 

Supra note 4. 

28 

The reform consists essentially of two main components: restructuring and 

privatization. The objective was to stimulate competition and promote financial 

accountability by unbundling the old structure under NEPA into three constituent 

segments, namely generation, distribution and transmission. Under the new regime, 

the Nigerian Electricity Regulatory Commission (NERC) is to serve as the main regulatory 

body of the reformed electric power sector. The responsibilities of NERC include 

licensing of successor power companies, establishment of electricity tariffs, 

enforcement of performance standards, and the protection of consumer rights. See 

Yemi Oke, supra note 2. See also Chigbue, IN, “Electric Power Sector Reform: 

Privatization, Regulation and Other Challenges” a presentation at the National 

Workshop on Electric Power Sector Liberalization, 30th March, 2006, online: 

, accessed April 

18, 2010. 

29 

Supra note 4. 

30 

See e.g. ss 1, 3 of the NEPA Act, supra note 16. 

31 

See sections 25, 26, 28, 29, and 82 of the EPSR Act, supra note 4. For example, 

sections 80 and 81 of the EPSR Act provide for consumer protection, and requires 

high performance standards by the operators to engender maximum utility and safety 

to consumers of electricity. Regrettably, section 27 of the repealed NEPA Act declares 

that NEPA is not responsible for safety either of the consumers or for the efficiency or


III. LEGAL ISSUES IN THE DEAL OF MANITOBA HYDRO IN 

NIGERIA 

The deal between Manitoba Hydro and the Nigerian government is 

one of the strategies for crystallizing the objective of an effective, 

liberalized and commercially viable electricity regime in Nigeria, with the 

goal of instilling confidence in global investors. Beyond a doubt, Manitoba 

Hydro is intended to be show-cased as a beautiful bride and the 

springboard for a potentially lucrative electric power sector in Nigeria. 

Given its status, the mere presence of Manitoba Hydro in the Nigerian 

electricity sector may be enough to convince potential investors that 

Nigeria’s electricity is bankable. While seeking to unravel how bankable it 

will be in the context of Nigeria as the host nation, the nature of the deal 

needs to be understood, though the parties are keeping many details of the 

transaction away from the public scrutiny of analysts and legal scholars 

alike. 

Manitoba Hydro is a Crown corporation and the province's major 

energy utility, with its head office in Winnipeg, Canada. It is also a major 

exporter of electricity to wholesale markets in Canada and the mid-western 

United States. 32 According to its establishing Act, the objective of forming 

Manitoba Hydro is: 

2. … to provide for the continuance of a supply of power adequate for the needs 

of the province, and to engage in and to promote economy and efficiency in the 

development, generation, transmission, distribution, supply and end-use of 

power and, in addition, are 

(a) to provide and market products, services and expertise related to the 

development, generation, transmission, distribution, supply and end-use of 

power, within and outside the province; and 

(b) to market and supply power to persons outside the province on terms and 

conditions acceptable to the board. 33 

safety of their cables, appliances of consumers. Section 35 of the NEPA Act forbade 

any other person or state government agency from obtaining licenses to operate power 

plants or generate elctricity, in contradiction with the level-playing, competitive 

structure under the EPSR Act of 2005. 

32 

See supra note 5. 

33 

See s 2, Manitoba Hydro Act, RSM 1987, c H190, CCSM c H190, online at 

http://web2.gov.mb.ca/laws/statutes/ccsm/h190e.php [Manitoba Hydro Act], 

accessed April 6, 2012.


By virtue of section 4(2) of the Manitoba Hydro Act, the corporation is an 

agent of Her Majesty, the Queen-in-right of the Province of Manitoba. 34 

Also critical to the ability of the company to engage in electricity 

undertakings is the fact that, by virtue of subsection 2(a) of its Act, it shall 

market and supply power to persons outside the province on only terms 

and conditions acceptable to the board. 35 

Another important legal issue in the deal is subsection 4(4) of the 

Manitoba Hydro Act. Extraterritorial application of this provision is 

doubtful, as it prohibits proceedings against the corporation in respect of 

electricity supply. The section provides: 

No action or proceedings by way of injunction, mandamus, prohibition or other 

restraining process or proceeding of any nature that has, or may have, the effect 

of terminating, suspending, curtailing, limiting, or hindering the supply of power 

to any person shall be brought, or may be maintained, against the corporation in 

any court. 36 

It is doubtful whether a subsidiary like Manitoba Hydro International Inc. 

can take advantage of the provision of subsection 4(4) on immunity from 

action created for the benefit of its parent corporation, Manitoba Hydro, 

due to the principle of separate corporate legal personality of a parent 

corporation and its subsidiaries. On the flip side, a subsidiary corporation 

may involve the parent company in liability from foreign operations, 

particularly in a socially volatile environment like Nigeria and other 

developing countries. The case of Halliburton scandal in Nigeria is a good 

example in this regard. 37 One of Halliburton’s subsidiaries operating in 

Nigeria, KBR, got entangled in local corruption. This led to a threat to 

arrest and charge the former Vice President of the USA for bribery in 

Nigeria, on the ground that he was the CEO of Halliburton, the parent 

company at the time the crime was committed. Details of Halliburton 

bribery scandal in Nigeria are discussed below under Part VII,“Official 

Corruption as Militating Factor”. 

34 

Ibid. 

35 

Ibid. 


Ibid at s 4(4). 

37 

For details on Halliburton Scandal in Nigeria see (Text of Report on the Halliburton 

Bribery Scandal in Nigeria by a Panel Chaired by IGP Mike Okiro) May 2009, online: 

Nigerian Muse .


If the above provision applies to the deal under review, then Manitoba 

Hydro cannot be sued or restrained within or outside Canada in respect of 

its undertakings in Nigeria. It also follows that Manitoba Hydro may not 

be able to discontinue its transmission management operations in Nigeria 

on ground of breach by the other party. This is a potentially sensitive 

conflict of law issue. Though Manitoba Hydro may sue or be sued for 

breach and get judgment in a Nigerian court, the proceeding or judgment 

may be unenforceable in a Canadian court. Recognition and enforcement 

of foreign judgments in Canada posed logistical challenges until the 

decision of the Supreme Court in Morguard Investment Ltd v De Savoye. 38 

The court emphasized the importance of comity, and held that Canadian 

courts should enforce judgments where foreign courts have legitimately 

exercised jurisdiction by way of a fair process. This is in line with the 

principle of “full faith and credit,” a phrase coined by the Supreme Court 

of Canada and clarified in Hunt v T & N Plc 39 as a matter of constitutional 

imperative. 

The provisions of subsection 4(4) of the Manitoba Hydro Act could 

potentially prejudice the parties if invoked. As a way out, the parties would 

need to make appropriate provisions in their agreement in anticipation of 

subsection 4(4) of the Act. Generally, the board on behalf of the 

corporation may perform, execute, and carry out, all the duties, powers, 

and functions imposed or conferred by the Act upon the corporation. The 

board could also ratify such agreements or terms entered by the 

corporation including its subsidiaries, and may generally advise the 

corporation on its undertakings among others. 40 The board cannot, 

however, override the provisions of the Act. This makes it potentially 

prudent for the parties to anticipate the implication of the above 

provisions, or at least seek clarifications or expressly exclude its application 

in their contract for the management of the TNC by Manitoba Hydro as 

the Managing Contractor. 

38 

(1990) 3 SCR 1077, 52 BCLR (2d) 160. 

39 

(1993) 4 SCR 289, 85 BCLR (2d) 1. 

40 

The board may also do all and any acts and things that are necessary for or incidental 

to the performance, execution, or carrying out, of any such duty, power, or function, 

including the passing of such by-laws and resolutions as the board may deem 

advisable. See Manitoba Hydro Act, supra note 33, s 14. See also s 15(1) for a 

comprehensive list of other board powers.


As it stands, Manitoba Hydro is the potential adverse party as far as 

the above provisions and its undertakings or obligations in Nigeria are 

concerned. The deal between Manitoba Hydro and the Nigerian 

Government is with the international arm of the company called 

Manitoba Hydro International, a subsidiary. The company, in addition to 

the other powers set forth in its Act and subject to the limitations therein, 

has the capacity, rights, powers and privileges of a natural person to carry 

out its purposes and objects and to carry on related business ventures, on 

such terms and conditions as the board deems proper. 41 Any agreement 

between the Nigerian government and the MHI may be rendered nugatory 

subject to value and prior consent of the Lieutenant Governor-in- 

Council. 42 

The deal between Manitoba Hydro and the Nigerian Government is 

worth N3.7 billion Naira, equivalent to about $250 Million CAD based 

on a conversion rate of CAD$1 to N150. 43 This is above the limit 

allowable under the Manitoba Hydro Act, making it subject to the approval 

of the Lieutenant Governor-in-Council through its board. Though the 

deal is still subject to negotiation of the contract fee, the expectations of 

the Nigerian Government are well captured in the position of the 

Nigeria’s lead agency, the National Council on Privatization (NCP). 

According to the Director-General of the Bureau of Public Enterprises 

(BPE), which is the implementing organ and administrative agency of the 

NCP, the Nigerian Government and people anticipate that the deal will 

bring about the following benefits: reduction of electricity losses during 

transmission; provision for the achievement of pre-determined targets that 

would improve grid security and integrity and general performance; 

creating incentives for success and provision of efficient management for 

government investment in electricity; ensuring adequate and equitable 

generation of dispatch according to a fair merit order based on sound 

regulatory principles; ensuring fair market settlements between electricity 

traders; and provision for skills and expertise transfer to Nigerian 

counterparts who will serve in deputy and other positions to the 

41 

Ibid s 15(1.1). 

42 

Approval of the Lieutenant Governor in Council is required where aggregate value 

exceeds $5,000,000. See ibid s 15(1.3). 

43 

See Remi Koleoso, and Everest Amaefule, supra note 1.


management staff of the Management Contractor – that is, Manitoba 

Hydro. 44 

The expectations of the Nigerian Government are based on the 

reputation and capabilities of Manitoba Hydro, which were apparent in 

the selection process. The company rose to the top in the Quantity and 

Cost Based Selection (QCBS) method of the World Bank adopted for the 

transaction. 45 Beyond its global rating as world class electricity company, 

Manitoba Hydro would need more than reputation and technical 

competence to survive the Nigerian terrain. The Canadian energy firm has 

recently been warned by the Chairmen of Nigeria’s Senate and House of 

Representatives Committees on Power to learn from mistakes of the past 

in the privatization programme and to ensure it deploys the best technical 

and manpower resources available. 46 The corporation may have to choose 

whether to do business in Nigeria the Canadian way or the not-too-decent 

Nigerian way, as discussed below in part VIII. 

IV. THE BANKABILITY QUESTION 

The basis of the deal between the Nigerian Government and 

Manitoba Hydro is the series of legal and institutional reforms in the 

former’s electricity sector. 47 Given the nature of the Nigerian state, a 

critical question is this: Will the deal be bankable, particularly on the part 

of Manitoba Hydro as the Managing Contractor? From the Nigerian 

perspective, the term bankability is a technical word denoting commercial 

expectations and assurances that an investor will recoup the investment 

44 

Ibid at 8. 

45 

Ibid. 

46 

Ibid. 

47 

See EPSR Act, supra note 4. The aims of the Act are multi-faceted. It seeks to provide 

legal frameworks for the formation of several legal entities (corporations) to take over 

the assets and liabilities of the old electricity regulatory body and to establish the 

NERC as the new regulatory agency for generation, transmission and distribution of 

electricity in Nigeria. The Act also seeks to develop competitive electricity markets; 

establish the Nigerian Electricity Regulatory Commission; provide for the licensing 

and regulation of the generation, transmission, distribution and supply of electricity; 

enforce such matters as performance standards, consumer rights and obligation; and 

to provide for the determination of tariffs; and to provide for matters connected with 

or incidental thereto. See also Yemi Oke, supra note 2.


capital with gain in the country. Put differently, will the deal be profitable 

to Manitoba Hydro, accounting for risk, operational difficulties, and high 

expectations for translating and remaking the Nigerian electricity sector? 

Quite frankly, the Nigerian state is characterized by a confluence of 

factors. 48 Beyond reforms, the success of the deal will depend largely on 

the ability of Manitoba Hydro to navigate the “Nigerian factors” which 

often make business undertakings needlessly complex, expensive, and 

largely unpredictable or un-bankable. 

The deal is a manifestation of decentralized electricity governance 

advocated elsewhere by myself. 49 This approach to management of 

electricity is suggested for Nigeria due to its practical and functional 

approach to energy sustainability. 50 The deal should ordinarily be bankable 

given the global industry standing of the Management Contractor. 

However, the issue of sustainability or bankability of a project in Nigeria 

transcends reputational and technical skills of the contractor. In the 

energy sector, bankability often becomes very crucial, particularly in a 

developing country like Nigeria. 51 

The process of making investment decisions or management 

undertakings can be as much idiosyncratic as it is scientific. It often 

requires piercing through potentially deceptive incentives for a careful 

consideration of political, social, and other factors before making business 

decisions. 52 Risk analyses of investment or undertakings in energy sectors 

48 

Economic interests, political forces, capitalists’ entities and other bureaucratic 

institutions determine the political, economic, social and other laws or policies 

suitable or adoptable for the Nigerian state at any given time. The same situation 

manifests vividly in the electricity sector of Nigeria leading to the current reform in 

the sector. 

49 

Yemi Oke, supra note 2. 

50 

It involves the transfer of responsibility for planning, management and allocation of 

resources from the central government and its agencies to units, agencies and private 

sector players. See M Carley & I Christie, Managing Sustainable Development (London: 

Earthscan Publications, 2000) at 126. See also DA Rondinelli & JR Nellis “Assessing 

Decentralization Policies in Developing Countries” (1986) 4 Development Policy Review 

3. 

51 

Yemi Oke, “Financing Solid Minerals Business in Nigeria: An Appraisal of the Socio- 

Political Aspects of the Requirements of Bankability” in Legal Aspects of Finance in 

Emerging Markets (Durban, South Africa: LexisNexis Butterworths, 2005) at 107-118. 

52 

Robert Pritchard, “Safeguards for Foreign Investment in Mining” in Bastiba, E; 

Walde, T, and Warden-Fernandez, J, (Eds) International and Comparative Mineral Law


like Nigeria tend to give comparatively high attention to the conflict of 

interest between the parties, especially where it involves multinational 

corporations like Manitoba Hydro. 53 Research has shown, however, that 

host community hostility to energy resource projects is gradually becoming 

significant, if not already an issue of overwhelming importance in 

countries like Nigeria. 54 Until recently, foreign and sometimes local 

investors rarely consider host community hostility to energy resource 

projects to be of any potential hindrance. 55 It has been observed that in 

energy resources endeavours, a foreign party should be wary of booby trap 

incentives often provided in the legislation or policy frameworks to attract 

a deal. As I have written previously: 

An average investor knows that investment is easier made than unmade. This 

leads to piercing through the sometimes deceptive incentives for a careful 

consideration of the political, social and other factors that would make investing 

in a country a reasonable business decision. It makes better business sense to 

invest in a politically stable and socially reliable country with little or no 

incentives than to embark on the irrational and expensive decision of investing 

under a turbulent and politically volatile atmosphere under the guise of 

distorted, wooly “incentives.” 56 

V. CONSTITUTIONAL AND REGULATORY CHALLENGES 

Aside from bankability issues that would need to be ascertained and 

resolved, constitutional and regulatory questions would substantially 

determine the sustainability or profitability of the undertaking for 

Manitoba Hydro. The Constitution of the Federal Republic of Nigeria (the 

and Policy: Trends and Prospects (The Hague: Kluwer Law International, 2005) at 73. 

53 

MA Mohamed Salih, Environmental Politics and Liberation in Contemporary Africa 

(Dordrecht: Kluwer; 1999), at 1. 

54 

George S Akpan, “Host Community Hostility to Mining Projects: A New Generation 

of Risk?” in Elizabeth Bastida, Thomas Walde & Janeth Walden-Fernadez, eds, 

International and Comparative Mineral Law and Policy: Trends and Prospects (The Hague: 

Kluwer Law International, 2005) 311. 

55 

Ibid at 312. 

56 

Yemi Oke, supra note 51. Minor edits have been made to this quotation for 

grammatical correctness by the Manitoba Law Journal. See also Yemi Oke, “Relevance 

of Derivatives and Related Debt Instruments to Public-Private Sector Financing of 

Energy Resources in Nigeria” (2012) 1 NIALS Journal of Law and Public Policy 183 at 

195.


Constitution) provides for decentralized electricity governance. 57 Sadly, 

most of the policy-makers at the State levels either have yet to pay adequate 

attention to the constitutional provisions, or have interpreted them 

incorrectly or erroneously. The relevant provisions of the Constitution are 

as follows: 

13. The National Assembly may make laws for the Federation or any part thereof 

with respect to- 

(a) electricity and the establishment of electric power stations; 

(b) the generation and transmission of electricity in or to any part of the 

Federation and from one State to another State; 

(c) the regulation of the right of any person or authority to dam up or otherwise 

interfere with the flow of water from sources in any part of the Federation; 

(d) the participation of the Federation in any arrangement with another country 

for the generation, transmission and distribution of electricity for any area partly 

within and partly outside the Federation; 

(f) the regulation of the right of any person or authority to use, work or operate 

any plant, apparatus, equipment or work designed for the supply or use of 

electrical energy. 58 

By virtue of paragraph 14, State governments in Nigeria are at liberty to 

engage in licensing and regulation of electricity subject as provided by the 

Constitution: 

14. A House of Assembly may make laws for the State with respect to – 

(a) electricity and the establishment in that State of electric power stations; 

(b) the generation, transmission and distribution of electricity to areas not 

covered by a national grid system within that State; and 

(c) the establishment within that State of any authority for the promotion and 

management of electric power stations established by the State. 59 

The implication of these sections is that Nigerian State governments may 

be able both to set up Electricity Regulatory Commissions and to license 

private companies to engage in off-grid electricity generation, transmission, 

and distribution as provided by the constitution. It may also lead to a 

revolution in the power sector as transmission or distribution companies 

may back off from the national grid to transmit off-grid from State 

structures to end users. This will eventually make electricity business more 

competitive and also afford consumers ample options, as seen in the 

telecom industry in Nigeria. 

57 

See Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended). 

58 

Ibid, Schedule II s 13. 

59 

Ibid, Schedule II s 14.


Though the Constitution places electricity generation, transmission 

and distribution on the Concurrent Legislative List to enable the Federal 

and State government to partner in sustainable electricity, what occurs in 

practice is a negation of the constitutional provisions. At the moment, 

electricity regulation in Nigeria clearly depicts the opposite of a 

decentralized scheme envisaged by the Constitution. This is expected to 

pitch the State governments against the Federal Government unless the 

regime is sufficiently liberalized to create dual legal frameworks where 

electricity governance and undertakings co-exist at the state and federal 

levels. A mutual settlement is expected in case of litigation like the 

Supreme Court had done in a line of cases involving the States and 

Federal Government of Nigeria. 60 It is the considered view of this paper 

that attendant constitutional and regulatory issues in electricity in Nigeria 

would be resolved without impacting negatively on existing rights, duties 

or undertakings of the parties engaging in electricity contracts or trading 

like Manitoba Hydro. 

A major step towards easing the likely constitutional and regulatory 

tussle had recently been taken by the Federal Government of Nigeria. The 

Nigerian Electricity Regulatory Commission (NERC) has recently issued 

two regulations to enable communities, states and local governments to 

generate and distribute electricity within their domains. This is in line 

with the yearnings of stakeholders and industry experts for 

decentralization of electricity generation, transmission and distribution in 

Nigeria. 61 The EG Regulations primarily aim at ensuring generation of 

60 

See e.g. the conclusion reached by the Supreme Court while interpreting S 162 of the 

1999 Constitution in the case of Attorney-General of the Federation v Attorney-General 

Abia &35 Ors (2002) 6 NWLR (pt 764) 542 to the effect that, by law, the Federal 

Government pays all its revenues into the Federation Account to be appropriated 

yearly under revenue allocation or appropriation statutes. See also the case of Attorney- 

General Ogun State v Attorney-General of the Federation &35 Ors, (2002) 18 NWLR (pt 

798) 232, where the Supreme Court relied on the provisions of Ss 7 and 9 of the 

NNPC Act, to the effect that the state petroleum company, the Nigerian National 

Petroleum corporation- NNPC does not have to pay all its revenues into the 

Federation Account. The apex court reasoned that NNPC is excluded to the extent 

that deduction of expenses from gross income is legal where such items of expenditure 

are prospectively included in the budget of NNPC as approved by the Federal 

Executive Council pursuant to s 7(2) of the NNPC Act; or where same is 

retrospectively included in the audited accounts of the NNPC. 

61 

Namely, the Nigerian Electricity Regulatory Commission Regulations for Embedded


electricity directly from the distribution system which is connected to a 

transmission network operated by a system operator licensee, whereas the 

IED Regulation aims at enabling issuance of licence to construct, own, 

operate, and maintain, or to procure the construction, operation, and 

maintenance of an independent Electricity Distribution Network. 

By virtue of embedded regulation, investors, communities, local 

governments and state governments may now apply for licences for the 

generation and distribution of electricity using existing electricity 

distribution companies or independent electricity distribution network 

operators. 62 Chapter VII of the EG regulations prohibits embedded 

generation licensees from engaging in other regulated activities like 

distribution, transmission, trading, and system operations. 63 Chapter VII 

(1)(d) clarifies that a Distribution Licensee may engage in Embedded 

Generation by incorporating a separate legal entity, and subsequently 

applying for a licence to be an Embedded Generator. However, the 

Embedded Generator and its affiliate shall comply with the Affiliate Code 

of Conduct approved by the Commission. 64 An Embedded Generator may 

connect to the transmission network whenever the need arises, but an 

Embedded Generator intending to connect to the transmission network 

shall apply for an amendment of the terms and conditions of its 

Embedded Generation licence. 65 

Under the Independent Electricity Distribution Regulation of 2012, 66 the 

NERC may issue a licence to construct, own, operate, and maintain, or to 

procure the construction, operation, and maintenance of an Independent 

Electricity Distribution Network (IEDN) subject to some conditions as 

Generation 2012, online: [the EG Regulations] and the Nigerian Electricity 

Regulatory Commission Regulation for Independent Electricity distribution Networks 2012, 

online: 

[the IED Regulation]. See also Yemi Oke, supra note 2. 

62 

Accordingly, Chapter III provides for the connection of embedded generators to 

distribution networks. See Chapter III of the EG Regulations, supra note 61. 

63 

Ibid. 

64 

Ibid. 

65 

Ibid, chapter VII (2). 

66 

See the Nigerian Electricity Regulatory Commission Regulation for Independent Electricity 

distribution Networks 2012.


provided for by Section 8 of the regulation. 67 An Independent Electricity 

Distribution Network Operation (IEDNO) is an IEDN operator that is 

licensed by the NERC. Section 5 provides for the structure of IEDNs. 

According to the section, an IEDN may be anyone of the trio of Isolated 

Off Grid Rural-IEDN; Isolated Off Grid Urban- IEDN or Embedded IEDN. 68 

It also provides that an IEDN may be required by the NERC to have a 

generator in its network. Where an embedded IEDN does not have a 

generator, it shall enter into service agreement with the distribution 

company supplying the IEDN electric power. On the other hand, if the 

IEDN has a generator, the generator shall be regarded as an embedded 

generator in the successor distribution company to which the IEDN is 

connected. 69 

Undoubtedly, the two regulations recently introduced by the Nigerian 

Government may go a long way in easing tension in the country’s 

electricity sector, but they may not make the sector wholly sustainable. 

Other social and community issues that impact directly on the sector and, 

by extension, the success of contractors and other operators within, must 

be resolved first. The regulations merely attempt to expand electricity 

generation and supply to end users, and sustainability may remain just a 

pipe dream without the much needed adjustment in the governance and 

regulatory frameworks of the electricity sector. Put differently, the problem 

of over-centralization of management and administrative structures in the 

sector must be tackled. The success of the two (new) regulations will also 

depend on how Manitoba Hydro, as a management contractor, is able to 

manage the transmission components of the embedded and independent 

regulatory frameworks in Nigeria in addition to other social and 

community issues. 

VI. THE SOCIAL AND COMMUNITY RISKS 

The making of laws in Nigeria and other countries in Africa leaves 

much to be desired as to social, environmental and other praxes of 

sustainability. In the case of Nigeria and other developing African nations, 

social and community factors have shown that law and policy formulations 

67 

Ibid. 

68 

Ibid, Chapter I (2). 

69 

Ibid, Chapter II (5)(a-c).


may not amount to automatic sustainability due to the misapplication of 

good laws and policies. 70 It is indisputable that good law aids development. 

But modern scholars of law recognize that law is not itself a magic wand 

for development. Scholars have shifted emphasis from law to getting the 

institutions right. 71 The task of the Nigerian government in its electric 

power sector reforms therefore lies in getting the institutions right, as 

doing so will also impact on Manitoba Hydro’s undertaking as the TCN 

management contractor in the country. 

Getting the institutions right is the best way to achieve success in the 

Nigerian electricity sector with Manitoba Hydro coming on board as the 

transmission manager. Relevance of institutional reforms cannot be 

ignored in the unfolding electricity regime of the country. The much 

desired foreign direct investment (FDI) and sustainable electricity 

governance intended under the EPSR Act may come to naught in the 

absence of well-articulated institutional reforms. These are sine qua non to 

creating a conducive atmosphere for effective regulation and operation of 

electricity undertakings and instilling investors’ confidence in the Nigerian 

power sector. 72 

The economic and technical sophistications of handling modern 

electricity inevitably make technical partners like Manitoba Hydro 

indispensable. 73 However, there is a growing recognition of the fact that 

70 

MA Mohamed Salih, African Democracies & African Politics (London: Pluto Press; 2001) 

at 8, quoting Lopez and Stohl 1989 with approval. See also Stephen Wright, Nigeria: 

Struggle for Stability and Status (Boulder, CO: Westview Press, 1998) at 38, where he 

describes the Nigerian elites as “personalized and autocratic, [leaving] no room for 

opposition or dissent”. 

71 

See Kevin E Davis, “How Important is the Legal System?”, Nexus (Spring/Summer 

2003) 18. 

72 

See Michael Trebilock, “Law and Development”, Nexus (Spring/Summer 2003) 16 at 

17. In carrying out the reforms, Trebilock suggests that: 

…developing countries should not focus exclusively on enacting or 

adopting appropriate bodies of laws or regulations designed to 

vindicate the particular conception of development that motivates 

them (like mining). Rather, the empirical evidence suggests that it is 

appropriate to emphasis reforms that enhance the quality of 

institutions charged with the subsequent administration and/or 

enforcement of those laws or regulations. 

73 

See Marian Radetzki, “Economic Development and the Timing of Mineral 

Exploitation” in John E Tilton, ed, Mineral Wealth and Economic Development


there is no guarantee that international investment or undertaking would 

be carried out in an environmentally sound or socially sustainable manner 

by the so-called technical partners. 74 This notion is often based on 

instances of economic exploitations and unequal bargaining power 

between developed countries and their developing partners. 

Consequently, some have argued that expatriation and remittance of 

income to the parent company over time would exceed the total new 

investment in a developing country. 75 

As sound as the above argument appears, it gives little regard to the 

general impact of multinational corporations such as the royalties and 

taxes paid over time, employment generation, and technology transfers. 

Though multinational corporations may share some blame in 

environmental depletion and host communities’ imbroglios, the 

advantages of opening doors to foreign investments and technical 

partnership outweigh the disadvantages (which may even be attributable to 

weak institutions of the host country). 76 As far as the deal between 

Manitoba Hydro and the Nigerian Government is concerned, the latter 

stands to benefit more. 

It takes a great deal of effort to attract some technical partners or 

foreign investors to developing countries. Often, countries in Africa 

embark on promotional activities, such as internet advertisement and 

(Washington: Resources For the Future, 1992) 39 at 45. 

74 

See Shedrack Agabkwa, “A Line in the Sand: International (Dis) Order and the 

Impunity of Non-State Corporate Actors in the Developing World” The Third World 

and International Order: Law, Politics and Globalization (Boston: Martinus Nijhoff, 2002) 

1 at 4. See also Madeline Cohen, “A Menu for the Hard-Rock Café: International 

Mining Ventures and Environmental Cooperation in Developing Countries” (1996) 

15 Stan Envtl LJ 130 at 154. 

75 

See Peter B Evans, “National Autonomy and Economic Development: Critical 

Perspectives on Multinational Corporations in Poor Countries” (1971) 25: 3 

International Organization 675 at 678-680. See also OE Udofia, “Imperialism in 

Africa: A Case of Multinational Corporations” (1994) 14:3 Journal of Black Studies 

353, and Fredrick Cooper, “What is the Concept of Globalization Good For? An 

African Historian’s Perspective” (2001) 100:399 African Affairs 189. 

76 

For example, the multinational corporations have been accused of complications in 

civil wars and other civil unrests in some developing countries. See also Michael L. 

Ross, “Oil Drugs, and Diamonds: The Varying Roles of Natural Resources in Civil 

War” in Karen Ballentine and Jake Sherman, eds, The Political Economy of Armed 

Conflict (Boulder: Lynne Rienner Publishers, Inc) 47; Noah Novogrodsky “Redressing 

Human Rights Violations in Sierra Leone” Nexus (Spring/Summer 2003) 27.


country-to-country tours, to attract foreign investors or technical partners 

like Manitoba Hydro. They often engage in other activities to out-do each 

other, like lowering environmental and other social standards to attract 

investors. 77 However, given the unfolding realities of globalization, the 

imperative of strong government to curtail corporations and transactional 

forces must be balanced against the need for institutional restructuring to 

reduce over-centralization of governance mechanisms in the electricity 

sector of Nigeria. 78 The impact of globalization and trade liberalization in 

Nigeria appears difficult to put in context. Not necessarily because these 

conundrums have not affected the country one way or the other, but 

because globalization, free trade and economic liberalization are hotly 

debated concepts. 79 

Speaking frankly, a development strategy anchored in energy or 

natural resources utilization in Nigeria may hardly produce a win-win 

situation between the local owners of the resources and other stakeholders 

due to the current “political economy of impunity” in terms of resource 

utilization and sharing of resource benefits. 80 This has continued to pitch 

the communities against the operators especially multinational 

corporations like Manitoba Hydro. This is the single most important 

challenge facing the Nigerian government in its attempt to ensure 

improved electricity in the country. Still fresh in the public’s memory is 

77 

See Organization for Economic Co-operation and Development, “Environmental 

Issues in Policy-based Competition for Investment: A Literature Review”, online: 

OECD . 

78 

A critic of globalization sees the phenomenon as having a fundamentally detrimental 

impact. Outside of the major industrial nation according to Davis, globalization has 

not brought integration and harmony, but rather a firestorm of change that has swept 

away languages and cultures, ancient skills and visionary wisdom, being the “hidden 

backdrop of our era.” See Wade Davis, “For a Global Declaration of Interdependence: 

The Roots of Disaffection” (2002) 6 International Herald Tribune 8. 

79 

While considering the multifarious effects of globalization and other transnational 

development, Professor Weiss posits: “[A]t the beginning of the twenty-first century, 

the international community is globalizing, integrating, and fragmenting, all at the 

same time. States continue to be central, but many other actors have also become 

important: international organizations, non-governmental organizations, corporations, 

ad hoc transnational groups both legitimate and illicit, and individuals.” See Weiss, 

EB, “Invoking State Responsibility in the Twenty-First Century” (2000) 96:4 AJIL 

798. 

80 

Shedrack Agabkwa, supra note 74 at 5.


the sad incident in the oil and gas sector popularly referred to as Shell vs 

Ogoni. 81 Today, tension is far from over in Ogoni land and other oilproducing 

communities in Nigeria. The trends of community agitation 

have heightened in Nigeria resulting in vandalism, kidnappings, and lately, 

terrorism. 82 This brand of community hostility has become a major threat 

to foreign participation by direct investors, technical partners, and 

managers alike. 83 This is because in case of revolt, foreign nationals, their 

families, companies, and their assets are prime targets of the locals in 

venting their anger and frustration against the government or its policies. 

More particularly worrisome is the report that the Nigerian power sector 

reform may have been “hijacked” by entrenched interests like management 

of the initial holding company called Power Holding Company of 

Nigeria, 84 the electricity trade unions, and other forces. 85 This makes it the 

81 

Richard Boele et al, “Shell, Nigeria and The Ogoni: A Study of Unsustainable 

Development” (2001) 9 Sustainable Development 74; AA Idowu, “Environmental 

Degradation and Human Rights Violation” (1999) 3:1 Modern Journal of Finance & 

Investment Law 124 at 125-128; Eusebius Mbioaka, “The Ethical Evaluation of Shell 

BP in Nigeria”, online: Nigeriaworld . 

82 

In recent times, Nigeria has witnessed unprecedented suicide bombings by an Islamic 

sect called the “Boko Haram” in which hundreds of citizens of the country and 

foreigners have been killed. Highlights of the series of suicide bombings include 

suicide bombing attack on the UN building in Abuja, the Federal Capital Territory 

(FCT) of Nigeria, bombing of a Catholic Church in Suleja on Christmas day of 2011, 

multiple suicide bombs in Kano, suicide bombing of the Police Headquarters, among 

others. All the bombings have recorded heavy casualties in death and injuries. For 

details, see “Kano Bomb Deaths Rise to 162, Highest Ever,” The Punch Newspaper, (22 

January 2012) 1. See also “Multiple Blasts rock Kano, Bayelsa” ibid at 4; “Abbreviated 

Timeline of Boko Haram Attacks”, ibid at 5; and “Tension as Two Explosions Rock 

Bayelsa”, ibid at 5. 

83 

George S Akpan, supra note 54 at 311. 

84 

The electricity reform led to organization and series of resulting in the emergence of 

the Power Holding Company of Nigeria (PHCN), the predecessor of the defunct National 

Electric Power Authority (NEPA). All existing commercial undertakings and legal 

proceedings of the defunct NEPA were transferred to the initial holding company, the 

PHCN. See ss 3(6), (7) of the EPSR Act, supra note 4. 

85 

The plan of the Nigerian Government to ensure stable electricity supply may have 

been hijacked by opposing interest groups in the power sector. See Everest Amaefule 

and Fidelis Soriwei, “Jonathan’s Power Sector Reform Hijacked: PHCN Management, 

Unions Team Up Against Reforms; Inadequate Gas, Water Setbacks to Power 

Industry- Minister”, The Punch Newspaper (7 April 2012) 1, 3. Accordingly, entrenched


more crucial that all necessary institutional, logistical, social and other 

frameworks be put in place if the project management contract for the 

Transmission Company of Nigeria (TCN) would be bankable and 

successful. 

VII. 

OFFICIAL CORRUPTION AS MILITATING FACTOR 

Corruption in Nigeria is monumental, and there is no point playing 

patriotism with truism. In electricity, corruption could take various ways 

or forms. The example of Halliburton Bribery scandal in Nigeria is a 

classic case of the devastating extent to which corporate corruption could 

be stretched by unscrupulous business actors in collaboration with corrupt 

local officials. 86 Gas development is crucial to electricity generation and 

transmission. According to the report: 

In efforts to harness Nigeria’s gas resources, the Federal Government, between 

1995 and 2004, awarded about $6 billion US Dollars in contract to a consortium 

of four companies including Kellogg of the USA, later known as KBR for the 

construction of Trains 1-6 of the Nigeria Liquefied Natural Gas (NLNG) Project in 

Bonny, Rivers State. The consortium was registered as TSKJ. In the course of 

investigation into Elf’s activities in France in 2003, the former Director of 

Technip deposed that the TSKJ consortium had secured the relevant contracts 

through bribery of key government officials and politicians in Nigeria. 87 

Due to this revelation, an investigation commenced in the United States 

that led to the indictment of Halliburton (then parent company to KBR) 

on February 11, 2009 for violation of the Foreign Corrupt Practices Act. 88 

Part of the punishment, in addition to fines, was that the consortium and 

Halliburton be excluded from all future contracts in the country. 89 

A crucial lesson for Manitoba Hydro to glean from the Halliburton 

bribery scandal in Nigeria is that corporate ethics may be compromised 

due to local factors from the country of operation. Halliburton’s case is a 

interests are militating against the success of the electricity reforms. The forces 

identified include management of the initial holding company, the Power Holding 

Company of Nigeria (PHCN), the various labour unions in the sector and other 

logistical factors like gas, water supply among others. 

86 

See Halliburton Scandal in Nigeria, supra note 37. 

87 


88 

15 USC §§ 78dd-1 (1977). 

89 

Supra note 37.


relevant case study to guide against unethical corporate practices and avoid 

certain categories of “consultants” and “agents.” This is because KBR 

admitted at trial to paying “consulting fees” to agents, referred to as 

“Cultural Advisors,” effectively bribing the Nigerian officials as well as 

some political entities in the country to obtain the contract. 

The Halliburton case also shows that the mess of corporate 

misdemeanor may impact negatively on the standing of the country of 

origin of the erring corporation. In Halliburton’s case, the standing of 

both the United States and Texas were dragged through the mud of 

bribery as Nigeria’s anti-corruption agency, the Economic and Financial 

Crimes Commission (the EFCC), threatened to charge former US Vice- 

President Dick Cheney, who was the CEO of Halliburton Group when 

the bribery took place. 90 

It is often difficult tracing illicit wealth in Nigeria. In an attempt to 

track incidents of money laundering and corruption, some scholars have 

asked the question: where goes the money? 91 Like money laundering, 

corruption involves concealing or disguising proceeds from illicit activities 

and legitimizing their future use. 92 A good illustration of corruption in 

electricity sector in Nigeria is the case and trial of ex-chairman and 

commissioners of the NERC 93 as well some officials of the Rural 

Electrification Fund (REF) and their collaborating allies, most of whom were 

90 

The case centres on engineering firm KBR, which admitted and pleaded guilty to 

paying $180m in bribes to Nigerian officials prior to 2007, when it was a subsidiary of 

Halliburton. The firm agreed to pay $579m in fines related to the case in the US. But 

Nigeria, along with France and Switzerland, has conducted its own investigations into 

the case. See BBC report, “Dick Cheney faces bribery scandal charges in Nigeria” BBC News (2 

December 2010), online: BBC < http://www.bbc.co.uk/news/world-africa-11902489>. 

91 

See Michael Levi, Maria Dakolias and Theodore S Greenberg, “Money Laundering 

and Corruption” in J Edgardo Campos and Sanjay Pradhan, eds, The Many Faces of 

Corruption (Washington: The World Bank, 2007) 389. 

92 

Ibid at 389. 

93 

See Yusuf Alli, “EFCC Uncovers Fresh N2b Contracts Scam at NERC” The Nation, 

(4 March 2009) online at: . The operatives of the Economic and Financial 

Crimes Commission (EFCC) raided the office of the Nigerian Electricity Regulatory 

Commission (NERC) and uncovered fresh contracts scam of $2 billion, mainly for 

contracts that were awarded without due process in January 2009 and backdated to 

June 2008; most of these contracts were for consultancy.


members of the National Assembly of Nigeria. 94 In developing countries 

like Nigeria and its other African counterparts, aspects of the resource 

sector like government policies, investment and financing decisions, 

customer-interfacing activities, and commercial operations of the utilities, 

procurement, and human resource management are all potential avenues 

for corruption and operational ineptitude. 95 The nature of the energy 

sector in Nigeria often generally makes it possible for monumental 

corruption. 

Effective monitoring and supervision of the power sector has been 

made needlessly difficult through over-centralization of administration. 

The top-down model of electricity governance in Nigeria encourages 

corruption and other illegal dealings. Despite the reforms, the electricity 

industry, like other sectors in Nigeria, has continued to wallow in endemic 

corruption. The case of electricity officials in Nigeria stated above 96 has 

shown that beyond reforming the governing laws and rules in the sector, 

there is need for institutional reforms and the purging of current corrupt 

attitudinal dispositions of officials if the reforms will have any impact. The 

success of Manitoba Hydro is also dependent on this factor. 

If Nigeria scales the hurdle of creating a vibrant electricity regime 

under the new legal and regulatory frameworks through the deal with 

Manitoba Hydro, the social obstacles and challenges of managing and 

sustaining it will remain due to debased social orientation of infectious, 

systemic corruption. 97 Available literature shows that this problem is not 

easily surmountable in Nigeria. 98 African regional instruments 99 and some 

94 

See “The Raging Scandal over Government’s Rural Power Projects” online: NBF 

General Topics . 

95 

Mohinder Gulati and MY Rao, “Corruption in the Electricity Sector: A Pervasive 

Scourge” in J Edgardo Campos and Sanjay Pradhan, eds, The Many Faces of Corruption: 

Tracking Vulnerabilities at the Sector Level (Washington: The World Bank, 2007) 115. 

96 

See supra note 91. 

97 

RG Eggert, “Mining and Economic Sustainability: National Economies and Local 

Communities” (2001) 19 Mining, Minerals and Sustainable Development 1 at 60 

98 

See e.g. AK Dias, “International Standard-Setting on The Rights of Indigenous 

Peoples: Implications For Mineral Development In Africa” (1999) 6 South African 

Journal of Environmental Law and Policy 67 at 94. 

99 

For example, the preamble to the New Partnership for Africa’s Development (NEPAD), 

October 2001, recognizes the fact that the continent is impoverished by slavery, 

corruption and economic mismanagement and that only judicious use of enormous 

natural and human resources of the region could lead to equitable and sustainable


local enactments in Nigeria 100 also acknowledge the challenge posed by 

corruption and inequitable management of benefits from energy 

resources. It has been empirically established that resources and civil 

conflicts are inseparable in developing countries including Nigeria. 101 This 

further justifies the argument for neutralizing or avoiding corrupt 

tendencies in the deal between Manitoba Hydro and the Nigerian 

Government. The Managing Contractor has a greater role to play in this 

regard to show its Canadian brand in the area of corporate behaviour and 

socially responsible electricity undertakings, without yielding to the 

contagion of corruption in the country of operation. It is therefore not out 

of place to say that Manitoba Hydro should brace for conflict of corporate 

behaviour and ethics in Nigeria, as its success may similarly depend on 

ability to resolve likely conflicts of ethics and corporate orientations in 

such a socially volatile terrain. 

VIII. CONFLICT OF NIGERIAN-CANADIAN CORPORATE 

CULTURE 

Conflict of culture seems inevitable between Manitoba Hydro and the 

Nigerian partners on how best to effectuate the transaction. It may become 

apparent sooner or later, that there is a huge disparity between the 

declared and actual contract sums. Some of the money may be untraceable 

or be accounted for as “PR”, “consultancy fees” and “facilitation”, as the 

Management Contractor may have utilized funds for its “sub-consultants” 

and public relations sub-managers alike. This was the case in the 

Halliburton’s scandal in Nigeria and same should be avoided by Manitoba 

Hydro in the country. 

The options before Manitoba Hydro appear to be the following: a) 

doing business in Nigeria in a normal, professional way otherwise referred 

growth. Online: NEPAD . 

100 

See e.g. the Corrupt Practices and Other Related Offences Act 5, Laws of the Federation of 

Nigeria (LFN) 2000. This Act intends to put an end to corruption and related 

offences in Nigeria, which vices, according to the Act, are already threatening the basis 

of the country’s unity and development. See the long title of the Act and the address 

of the Nigerian President, Olusegun Obasanjo at the signing into law where he said: 

“With corruption, there can be no sustainable development, nor political stability.” 

101 

See ML Ross and Noah Novogrodsky, supra note 75.


to in the country as “business unusual” 102 or b) yielding to temptations to 

do business the way of the country of operation, meaning engaging in 

what in Nigeria is generally referred to as “business as usual.” 103 The 

conflict may be easily resolved by Manitoba Hydro if able to put its cards 

on the table for the Nigerian parties in terms of its good corporate 

governance, values, and ethical standards. 104 

Ordinarily, good corporate governance should pose no difficulty being 

essentially about doing business in accordance with laws, regulations, and 

rules. Though at least one study reveals that Canadian regulators, 

lawmakers, and corporate actors also look towards the United States and 

United Kingdom for models of corporate governance due to their 

analogous Common Law legal systems, 105 the reality is that Nigeria is also a 

Common Law jurisdiction. Despite being a Commonwealth state like 

Canada and the UK, Nigeria suffers from divergent corporate and 

business ethics and behaviour due to the infusion of negative social values 

in corporate dealings. 

Conversely, Manitoba Hydro will be expected to display and uphold a 

higher degree of fair business practices in Nigeria. 106 Fair business and 

102 

The term “business unusual” in Nigeria refers to the ideological basis for standing-out 

to do business or carry out an undertaking in a professional, just and upright manner 

without comprising ethical and moral values. 

103 

The term “business as usual” generally connotes a perpetration of the old order or 

norm of doing business or carrying out an undertaking by compromising ethical and 

moral values. 

104 

Principle 10 of the ILO principles has been recommended for Canadian firms like 

Manitoba Hydro to the effect that “multinational enterprises should take fully into 

account established general policy objectives of the countries in which they operate. 

Their activities should be in harmony with the development priorities and social aims 

and structure of the country in which they operate.” See Kevin McKague and Wesley 

Cragg, “Compendium of Ethics Codes and Instruments of Corporate 

Responsibility,” on-line: York University . 

105 

See Randall Morck and Bernard Yeung, Some Obstacles to Good Corporate Governance In 

Canada and How to Overcome Them, online: Task Force to Modernize Securities 

Legislation in Canada . 

106 

The concept of “unfair commercial practices” has been developed in some jurisdiction 

and particularly given a rather broad definition under the EU legislation. According 

to Article 6(3) of the EU Cosmetics Directive: 

Member States shall all measures necessary to ensure that, in the


commercial practices cover both pre-contractual and post-contractual 

practices. 107 Corporate orientations of Manitoba Hydro, as a Canadian 

corporate citizen and that of the Nigerian players should differ, though 

such differences may often reflect cultural and social backgrounds of the 

respective corporate actors. Thus, if cultural and social orientations of the 

host state or country of origin of an operator are fair, commercial practices 

and exchanges tend to be fair, and vice-versa. 108 

IX. CONCLUSION 

Manitoba Hydro Inc. has a legal and moral duty to the Nigerian 

people by virtue of its contract with the Nigerian Government for the 

management of the Transmission Company of Nigeria (TCN). As one of 

Canada’s leading energy giants, the Managing Contractor is expected to 

show leadership in global energy while in Nigeria. There are identifiable 

but surmountable challenges, and its success will depend on ability to 

manage perceived but avoidable obstacles to its undertakings. This will 

also go a long way in enhancing or undermining its corporate image as 

well as that of Canada and Manitoba as its country and region of origin 

respectively. 

Needless to say, in this deal, Nigeria is the underdog. Manitoba 

Hydro’s expertise, reputation and leadership in electricity generation, 

transmission and other aspects of business are needed by the Nigerian 

Government and people. It is anticipated that Manitoba Hydro will rise to 

the occasion and resist alluring demands of unscrupulous Nigerian 

officials and their local and foreign collaborators who may wish to 

labeling, putting up for sale and advertising of cosmetic products, text, 

names, trademarks, figurative or other signs are not sued to imply that 

these products have characteristics which they do not have. 

See EC, Council directive 76/768/EEC of 27 July 1976 on the approximation of the laws of 

the Member States relating to cosmetic products [1976] OJ L 262/169, as amended by EC, 

Council directive 88/667/EEC of 21 December 1988 [1993] OJ L 151/32. 

107 

See Thomas Wilhelmsson, “Harmonizing Unfair Commercial Practices Law: The 

Cultural and Social Dimensions” (2006) 44:3 Osgoode Hall LJ 461 at 466. 

108 

According to Wilhelmsson, ibid at 461, the impact of social, cultural and linguistic 

factors on corporate or commercial is profound, as empirical research reveal that 

national variations manifest along the lines of cultural factors based on differences in 

countries based on consumer trust, understandings, rationality patters, values, among 

other factors.


perpetrate socially irresponsible culture on hapless Nigerian masses though 

unfair commercial and corporate practices of “business as usual.” The 

goodwill, image and reputation of Manitoba Hydro may be at stake as a 

result of its undertaking in Nigeria. It should be able to tread successfully 

on roads others have trod and failed. The deal between Manitoba Hydro 

and the Nigerian Government should not be about business fortune, but 

about the Canadian global brand. For Manitoba Hydro, it would be better 

not to venture unless the undertaking is geared towards success given a 

careful consideration of the nature, peculiar factors and circumstances of 

the deal and country of performance.

66 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1

Taxonomie juridique des institutions 

postsecondaires offrant des 

programmes et des services en français à 

l’extérieur du Québec 

M A R K C. P O W E R , F R A N Ç O I S 

L A R O C Q U E ET A L B E R T 

N O L E T T E † 

« Qui osera mettre en doute la nécessité pour les francophones d’avoir accès à un 

enseignement supérieur dans leur langue maternelle, de sorte qu’ils puissent retourner dans 

leur communauté et participer efficacement à son développement social, économique ou 

autre ? » 1 

 

Les auteurs tiennent à remercier : Danielle Arcand, Claudine Bélanger, Julien-Pier 

Boisvert, André Boucher, Majid Charania, Sandra Duval, Michel Giroux, Pamela 

Kennedy, Frank McMahon, Pierre Nadeau, Dolorèse Nolette, Justin Nolette, Pierre 

Ouellette, Lucien Pelletier, Blanche Thériault et Jocelyne Veillette. 

 

Mark C. Power est associé à l’étude Heenan Blaikie s.r.l. et professeur adjoint au 

Programme de common law en français de la Section de common law de la Faculté de 

droit de l’Université d’Ottawa. 

 

François Larocque est professeur agrégé au Programme de common law en français de 

la Section de common law de la Faculté de droit de l’Université d’Ottawa. 

† 

Albert Nolette est détenteur d’un baccalauréat en éducation du Campus Saint-Jean 

d’Edmonton et d’un J.D. du Programme de common law en français de la Section de 

common law de la Faculté de droit de l’Université d’Ottawa. 

1 

Nouveau-Brunswick, l’Assemblée législative, Journal des débats, 49 e lég, 3 e sess, vol 16 

(16 juillet 1981) à la p 6647 (Jean-Maurice Simard, Président du Conseil du Trésor). 

L’honorable Jean-Maurice Simard est né à Rivière-Bleue au Québec. Il a été élu à 

l’Assemblée législative du Nouveau-Brunswick pour la première fois en 1970 et a été 

réélu en 1974, en 1978 et en 1982. Il a été nommé au Sénat du Canada en 1985 et 

occupait ce poste jusqu’à son décès en 2001. Voir généralement, en ligne : Parlement 

du Canada



C 

et article recense et analyse les lois, les règlements, et les autres 

instruments qui accordent un quelconque statut normatif à la 

langue française dans les institutions postsecondaires offrant des 

programmes et des services en français à l’extérieur du Québec. Pour ce 

faire, cet article propose une taxonomie tripartite ayant pour but d’aider à 

classifier et discerner les meilleures pratiques et les maillons faibles du 

réseau que forment ensemble les institutions postsecondaires offrant des 

programmes et des services en français à l’extérieur du Québec. 

Le statut du français dans les institutions postsecondaires offrant des 

programmes et des services de langue française à l’extérieur du Québec n’a 

jamais fait l’objet d’une analyse juridique. Il n’existe presque aucune 

doctrine juridique ou comparée traitant de ce sujet 2 . Aucune 

jurisprudence n’existe sur cette question 3 . 

Dans la première catégorie se retrouvent les institutions 

postsecondaires où le statut juridique du français est le plus avancé et où la 

pérennité des droits relatifs au français est assurée. Dans ce contexte, les 

lois, les règlements et les autres instruments juridiques qui protègent le 

statut du français au Nouveau-Brunswick et à l’échelle fédérale sont 

analysés 4 . L’objet de cette analyse est de comprendre les instruments 

juridiques qui, tout en assurant suffisamment de stabilité aux 

3971cd60-4c2a-4154-938c-80acb94ad497&Section=ALL&Language=F>. 

2 

Voir cependant Michel Giroux « Désignation des universités en vertu de la Loi sur les 

services en français » dans Michel Giroux et Julie Boissonnault, dir, La loi 8, la Charte et 

l’avenir : réflexions sur les droits linguistiques de l’Ontario français, Sudbury, Institut francoontarien, 

2010, 55. Giroux survole rapidement certains aspects du statut du français à 

l’Université d’Ottawa et à l’Université Laurentienne. Voir également J L Gilles 

LeVasseur, Le statut juridique du français en Ontario, Tome premier : La législation et la 

jurisprudence provinciales, Ottawa, Les Presses de l’Université d’Ottawa, 1993 aux pp 

179-197. LeVasseur survole rapidement le statut du français dans les institutions 

postsecondaires de l’Ontario. 

3 

Voir cependant Lalonde c Ontario (Commission de restructuration des services de santé) 

(2001), 56 OR (3 e ) 577 (CA) aux para 63-68 [Lalonde] concernant le rôle que joue 

l’Université d’Ottawa en collaboration avec l’hôpital Monfort ; voir également Gigliotti 

v Conseil d’administration du Collège des Grands Lacs (2005) 76 OR (3 e ) 561 (disponible 

sur CanLII) [Gigliotti]. 

4 

Nous analysons l’Université de Moncton, les collèges communautaires du Nouveau- 

Brunswick et les collèges militaires fédéraux.

Taxonomie 69 

communautés de langue officielle en situation minoritaire (« CLOSM ») 

du Canada, leur permettent également de se concentrer notamment sur la 

qualité des programmes et les services offerts, plutôt que leur simples 

existence et continuité. 

Dans la deuxième catégorie, cet article identifie certaines institutions 

postsecondaires offrant des programmes et des services en français à 

l’extérieur du Québec, mais dont la pérennité n’est pas assurée par la 

Constitution du Canada 5 . Presque toutes les institutions postsecondaires 

qui composent ce deuxième groupe étaient, au moment de leur création, 

des institutions de langue française. Certaines de ces institutions 6 ont été 

graduellement anglicisées en l’absence d’une protection suffisante 

accordée au statut du français, et opèrent aujourd’hui dans un mode de 

bilinguisme soustractif 7 . Cette catégorie inclut également certaines 

institutions postsecondaires de langue française qui ont récemment 

modifié leurs lois habilitantes afin de mieux protéger le statut juridique de 

la langue française 8 . 

Finalement, dans la troisième catégorie, cet article regroupe certaines 

autres institutions postsecondaires offrant des programmes et services en 

français à l’extérieur du Québec 9 . Les institutions de cette catégorie jouent 

5 

Nous analysons l’Université de Saint-Boniface, l’Université Sainte-Anne, le Collège 

Boréal, la Cité collégiale, l’Université d’Ottawa, l’Université Laurentienne et le 

Campus Saint-Jean de l’Université de l’Alberta. 

6 

L’Université d’Ottawa et l’Université Laurentienne. 

7 

Le bilinguisme soustractif a été décrit dans l’affaire Fédération franco-ténoise c Procureur 

général du Canada, 2006 NWTSC 20 (« Plus un groupe minoritaire a une forte vitalité, plus 

fortes sont les probabilités d’une socialisation langagière et d’un développement psycholangagier 

favorisant l’emploi continu de la langue du groupe. Lorsque la vitalité ethnolinguistique du 

groupe minoritaire est faible, c’est la langue de l’exogroupe majoritaire qui risque de dominer les 

occasions de contacts langagiers. Dans ce contexte, le bilinguisme est « soustractif », c’est-à-dire 

que l’acquisition de la langue de l’exogroupe majoritaire est liée à la perte de la langue de 

l’endogroupe minoritaire » au para 596) ; voir aussi la série de trois textes sur l’Université 

d’Ottawa par Joseph Yvon Thériault, « Le bilinguisme qui soustrait », Le Droit (4, 5 et 

6 mars 1998). 

8 

L’Université de Saint-Boniface et l’Université Sainte-Anne. 

9 

Le Collège Acadie Î.-P.-É, l’Université Saint-Paul, l’Université de Sudbury, le Collège 

Universitaire dominicain, l’Université de Hearst, le Collège universitaire Glendon de 

l’Université York, le Campus d’Alfred de l’Université de Guelph, l’Institut français de 

l’Université de Regina, le Bureau des affaires Francophones et francophiles de 

l’Université Simon Fraser, le Programme de Baccalauréat en Éducation de l’University 

de l’Île-du-Prince-Édouard, le Collège Éducacentre en Colombie Britannique et le


aussi un rôle très important dans la protection et l’épanouissement des 

communautés qu’elles desservent, sans pour autant que le statut et l’usage 

du français y soient accordés une quelconque protection juridique. Il est 

constaté que certaines de ces institutions semblent perdre de l’ampleur. 

En définitive, cet article s’interroge sur la nécessité ou l’utilité de 

protéger ou de mieux protéger le statut du français dans les institutions 

postsecondaires. De plus, la taxonomie tripartite proposée dans l’article 

étale les principaux modes de protection du statut juridique du français au 

sein des institutions postsecondaires offrant des programmes et des 

services en langue française à l’extérieur du Québec. La taxonomie semble 

révéler que dans plusieurs cas, la marginalisation des programmes et des 

services offerts en français par certaines de ces institutions postsecondaires 

soit reliée à l’absence du statut juridique conféré à la langue française. 

II. 

MISE EN CONTEXTE 

La recherche juridique dans le domaine de l’éducation a jusqu’à 

maintenant surtout porté sur le statut du français aux niveaux primaires et 

secondaires 10 . La protection prévue à l’article 23 de la Charte canadienne des 

droits et libertés 11 serait, selon la Cour suprême du Canada, « la clef de voûte 

de l’engagement du Canada envers le bilinguisme et le biculturalisme » 12 . 

Toutefois, la protection et l’épanouissement des CLOSM ne peuvent être 

assurés uniquement par l’entremise d’institutions offrant des programmes 

d’éducation primaires et secondaires dans leur langue 13 . Voilà pourquoi 

Collège Mathieu en Saskatchewan. 

10 

Voir par ex Mark Power et Pierre Foucher, « Les droits linguistiques en matière 

scolaire » dans Michel Bastarache, dir, Les droits linguistiques au Canada, Cowansville 

(Qc), Yvon Blais, 2004, 399 aux pp 399-494 [Power et Foucher] ; Nicolas M Rouleau, 

« Section 23 of the Charter : Minority-Language Education Rights » dans Joseph Eliot 

Magnet, dir, Official Languages of Canada : New Essays, Markham (On), LexisNexis, 

2008, 261 aux pp 261-345 [Rouleau]. 

11 

Charte canadienne des droits et libertés, partie I de la Loi constitutionnelle de 1982, 

constituant l’annexe B de la Loi de 1982 sur le Canada (R-U), 1982, c 11 [Charte 

canadienne]. 

12 

Mahé c Alberta, [1990] 1 RCS 342 à la p 350 [Mahé]. 

13 

Voir notamment l’affidavit de François Benoît, directeur général du Conseil des 

écoles publiques de l’Est de l’Ontario dans l’affaire Galganov v Russell, 2010 ONSC 

4566 aux para 75-95 [Galganov] devant la Cour supérieure de l’Ontario, n° de dossier 

08-CV-41980, dont les auteurs conservent une copie ; voir aussi l’affidavit de

Taxonomie 71 

plusieurs soutiennent, depuis longtemps, que les CLOSM doivent pouvoir 

accéder à des programmes préscolaires et postsecondaires dans leur langue, 

financés à même les fonds publics 14 . Il est donc important d’étudier le 

statut accordé à la langue française dans les institutions postsecondaires 

offrant des programmes et des services en français au Canada, tout 

particulièrement celles à l’extérieur du Québec, afin d’examiner les liens 

possibles entre celles-ci et l’article 23 de la Charte canadienne. 

Plus de la moitié des Canadiennes et des Canadiens détiennent un 

diplôme d’études postsecondaires 15 et plusieurs sont d’avis qu’une telle 

formation est devenue nécessaire 16 . Les institutions postsecondaires 

Raymond Breton dans la même affaire, dont les auteurs conservent une copie. Voir 

aussi Ontario, Commissariat aux services en français, Rapport d’enquête, L’état de 

l’éducation postsecondaire en langue française dans le Centre-Sud-Ouest de l’Ontario : Pas 

d’avenir sans accès, Imprimeur de la Reine pour l’Ontario, juin 2012, en ligne : 

: 

« Tout comme le système d’éducation élémentaire et secondaire, le système d’éducation 

postsecondaire est d’une importance cruciale à l’avancement et à la pérennité de la communauté 

et de la culture franco-ontariennes » à la p 51 [Rapport CSF]. 

14 

Jusqu’à maintenant il semble que l’article 23 de la Charte canadienne, supra note 11 

protège uniquement l’instruction dans la langue de la minorité aux niveaux primaires 

et secondaires, mais ne donne pas droit d’accéder à des programmes visant la petite 

enfance, ni à des programmes postsecondaires. Cependant, dans l’affaire Commission 

scolaire francophone du Yukon no 23 c Procureure générale du territoire du Yukon, 2011 

YKSC 57 la Cour suprême du Yukon a affirmé : « [qu’i]l est évident que le GY 

[Gouvernement du Yukon] a reconnu ses obligations dans le domaine préscolaire en terme de 

francisation et de recrutement comme étant parmi des étapes réparatrices prévues à l’art. 23, et 

confirmées par la Cour suprême dans la cause Mahe » au para 723. Voir aussi Commission 

scolaire francophone, Territoires du Nord-Ouest et al c Procureur général des Territoires du 

Nord-Ouest, 2012 CSTN-O 44, CanLII 31411 (NWT SC) ; Power et Foucher, supra note 

10 à la p 423. Voir aussi Michel Giroux, « Droit constitutionnel à une éducation 

universitaire en français en Ontario » (2010-2011) 35-36 Revue du Nouvel-Ontario 

241 [Giroux : Droit constitutionnel à une éducation universitaire]. 

15 

Selon Statistiques Canada, en 2006 environ 23 % des adultes canadiens étaient 

titulaires d’un diplôme universitaire, 20 % avaient un diplôme d’études collégiales et 

12 % avaient un certificat d’une école de métiers. Le recensement de 2006 démontre 

que le Canada comptait 17 382 100 adultes de 25 à 64 ans, dont 3 985 700 avaient 

un diplôme universitaire, en hausse de 24 % par rapport à 3 207 400 en 2001. Voir 

Statistiques Canada « Annuaire du Canada 2010 », en ligne : 

à la p 125. 

16 

Voir par ex ZDD v RCG, 2004 BCSC 1239, juge Melnick au para 22 « [i]t is a privilege 

in our society to be able to pursue post-secondary education […] [h]owever, it is also true that the 

economic realities of our society make the acquisition of post-secondary education to obtain the


offrant des programmes et des services en français sont particulièrement 

importantes à la protection et à l’épanouissement des CLOSM. 

Notamment, elles jouent un rôle primordial dans la formation des 

professionnels d’expression française à l’extérieur du Québec 17 . Il semble, 

a priori, que ces institutions contribuent à la réalisation des objectifs de 

l’article 23 de la Charte canadienne, bien que cet article se garde pour 

l’instant de tirer des conclusions fermes à l’égard de l’existence d’un droit 

constitutionnel à l’enseignement postsecondaire dans la langue officielle 

minoritaire 18 . 

skills necessary to enter the job market and earn a living a necessity » ; voir aussi CLC v JCW, 

2005 BCSC 1495, juge Gerow au para 26 « [t]he courts have acknowledged that although 

post secondary education is a privilege, some post secondary education may be necessary in order 

to equip children with the skills to earn a living ». 

17 

Voir par ex, en ce qui concerne le domaine des soins de santé, la discussion des 

tribunaux ontariens dans l’affaire Lalonde, supra note 3 aux para 63-68 ; voir 

généralement Giroux : Droit constitutionnel à une éducation universitaire, supra note 14. 

Voir aussi Rapport CSF, supra note 13 « [l]es collèges et universités de langue française et 

bilingue forment de futures professionnels qui maitrisent les deux langues et dont les activités sur 

le marché du travail contribuent non seulement à l’économie provinciale, mais aident également 

le gouvernement à satisfaire à ses obligations en vertu de la Loi sur les services en français » à la 

p 51. 

18 

Rouleau, supra note 10 explique : « the primary shortfall for francophone minorities 

is the availability of quality post-secondary education. Individuals who attended 

primary and secondary school in French are inclined to pursue post-secondary 

education if they have the option of doing so in French. Inversely, the existence of 

recognized French-Language post-secondary institutions will increase the likelihood of 

the francophone minorities completing their primary and secondary education in 

French » aux pp 342-343. Voir aussi Stacy Churchill, Les langues officielles au 

Canada : transformer le paysage linguistique, Ottawa, Patrimoine Canadien, 1998: « 

La principale lacune sur le plan de l’instruction des minorités francophones se situe 

au niveau de la disponibilité d’un enseignement postsecondaire de qualité et offerte 

en français » à la p 37. Voir aussi Rapport CSF, supra note 13 : « il existe un cercle 

vicieux de l’offre et de la demande dans le Centre-Sud-Ouest de l’Ontario, selon 

lequel les possibilités d’études postsecondaires en langue française contribuent à un 

taux cumulatif d’attrition aux paliers élémentaire et secondaire, ce qui a pour effet de 

réduire le nombre de diplômés qui opteraient de poursuivre leurs études 

postsecondaires, et de renforcer le manque d’offre relativement aux programmes en 

langue française. Par conséquent, l’avenir du système d’éducation élémentaire et 

secondaire est étroitement lié à celui du système d’éducation postsecondaire – 

particulièrement dans le contexte d’une minorité linguistique comme la minorité 

franco-ontarienne » à la p 42.

Taxonomie 73 

Selon la thèse de la complétude institutionnelle, une « communauté 

minoritaire est plus porté[e] à s’épanouir si elle possède une gamme 

d’institutions qui lui sont propres et qui répondent aux besoins de ses 

membres et ce dans les domaines tels l’éducation, la religion, le travail, la 

récréation, la santé et l’aide sociale » 19 . Les institutions postsecondaires des 

francophones hors Québec « sont des milieux linguistiques et culturels qui 

fournissent aux personnes les moyens d’affirmer et d’exprimer leur 

identité culturelle et qui, par extension, leur permettent de réaffirmer leur 

appartenance culturelle à [la] collectivité » 20 . En d’autres mots, ces 

institutions contribuent au maintien de la langue française, à la 

transmission de la culture francophone et favorisent la solidarité au sein 

de la minorité 21 . Les institutions postsecondaires offrant des programmes 

et des services en français à l’extérieur du Québec forment des maillons 

importants du réseau institutionnel des CLSOM et contribuent à 

développer et à maintenir leur vitalité 22 . 

La problématique soulevée par cet article intéressera d’abord les 

chercheurs dans le domaine des droits des minorités nationales en général 

et des minorités linguistiques en particulier. Cet article est également 

destiné aux leaders et aux administrateurs des institutions postsecondaires 

qui offrent des programmes et des services aux CLOSM. 23 Il contribue à la 

compréhension aux enjeux juridiques reliés au et découlant du statut du 

français. 

Il faut cependant noter que cet article se limite à l’analyse juridique du 

statut du français au plan postsecondaire. L’analyse sociologique et 

historique du statut et de l’usage du français dans ces institutions mérite 

19 

Voir notamment Raymond Breton, « Institutional completeness of ethnic 

communities and the personal relations of immigrants » (1964) 17 : 2 American 

Journal of Sociology 191 ; nous citons ici Edmund A Aunger, « Profil des institutions 

francophones » dans Anne Gilbert, dir, Territoires francophones : Études géographiques sur 

la vitalité des communautés francophones du Canada, Québec, Septentrion, 2010, 56 à la 

p 56. 

20 

Lalonde c Ontario (Commission de restructuration des services de santé),[1999] OJ 4488au 

para 14 [Lalonde ONSC], conf par Lalonde, supra note 3. 

21 

Lalonde, supra note 3 au para 71. 

22 

Lalonde ONSC, supra note 20 au para 14. 

23 

Ceux-ci sont également encouragés, surtout en Ontario, d’investir d’avantages de 

ressources pour assurer une véritable offre active de programmes et services (voir 

Rapport CSF, supra note 13 aux pp 30-32).


d’être abordée par des spécialistes en ces matières. Cet article portera donc 

sur les droits acquis reliés aux programmes et aux services en français 

offerts par les institutions postsecondaires à l’extérieur du Québec. À 

l’exception des institutions discutées dans la prochaine partie, il n’est pas 

question ici de développer un argument à l’effet qu’il existe un droit 

constitutionnel à des programmes et à des services postsecondaires de 

langue française. Cette étude se veut donc une première étape, aussi 

modeste soit-elle, contribuant peut-être aux prolégomènes d’une recherche 

de plus longue haleine sur l’historique, l’état et l’avenir du statut et de 

l’usage de la langue française au sein des institutions postsecondaires qui 

offrent des programmes et des services en français à l’extérieur du Québec. 

III. CATÉGORIE 1 : LES INSTITUTIONS POSTSECONDAIRES OÙ 

LE FRANÇAIS JOUIT D’UNE PROTECTION CONSTITUTIONNELLE 

La Catégorie 1 regroupe des institutions postsecondaires offrant des 

programmes et des services en français qui semblent être bien ancrées dans 

les réseaux institutionnels des CLOSM et qui, de surcroît, jouissent d’une 

protection constitutionnelle. Cette partie examine les conditions 

juridiques qui contribuent à cette stabilité et qui permettent à ces 

institutions de se concentrer sur la qualité des programmes et des services 

offerts, plutôt que sur leur simple pérennité. 

A. Les institutions postsecondaires du Nouveau-Brunswick 

1. L’Université de Moncton 24 

L’Université de Moncton a été fondée en 1963 par le gouvernement 

du Nouveau-Brunswick, dirigé alors par l’honorable Louis Joseph 

Robichaud 25 , en réponse aux revendications nombreuses et constantes de 

24 

L’Université de Moncton a été fondée en 1963. Aujourd’hui elle offre quelque 180 

programmes aux premier, deuxième et troisième cycles à plus de 5 000 étudiants à 

temps plein. En 2010, les revenus de l’Université de Moncton s’élevaient à presque 

140 000 000 $ (Rapport annuel 2009-2010 «Au cœur de la communauté», en ligne : 

Université de Moncton ). 

25 

L’honorable Louis Joseph Robichaud a été élu pour la première fois en 1952 et a été 

réélu en 1956, en 1960, en 1963, en 1967 et en 1970. Il a été le premier ministre du 

Nouveau-Brunswick de 1960 à 1970 et devient alors le deuxième Acadien à occuper

Taxonomie 75 

la communauté acadienne 26 . Plusieurs dénonçaient soit l’absence totale de 

programmes et de services postsecondaires de langue française dans la 

province, soit la piètre qualité de ceux qui étaient offerts 27 . Aujourd’hui, 

« [l]’Université de Moncton est considérée comme un moteur de la 

modernité dans les régions acadiennes et francophones du Nouveau- 

Brunswick » 28 . Cette institution « a contribué puissamment à une 

renaissance culturelle, économique, linguistique et sociopolitique qui fait 

qu’aujourd’hui, les francophones du Nouveau-Brunswick sont présents 

dans toutes les sphères d’activité de la province » 29 . L’Université de 

Moncton est constituée de trois campus situés à Edmundston, dans le 

cette fonction. Pendant cette période, la Loi sur les langues officielles, LN-B 1969, c 14 a 

été adoptée et l’Université de Moncton a été établie. Voir généralement Michel 

Cormier, Louis Robichaud : la révolution acadienne, Montréal, Leméac, 2004. 

26 

La Rapport de la Commission royale d’enquête sur l’enseignement supérieur au 

Nouveau-Brunswick a premièrement recommandé : « [q]ue l’Assemblée législative accorde 

une charte en vue de l’établissement de l’Université de Moncton comme seule institution 

d’enseignement supérieur de langue française au Nouveau-Brunswick autorisée à conférer des 

grades […] » (Nouveau-Brunswick, Assemblée législative, Commission royale d’enquête 

sur l’enseignement supérieur au Nouveau-Brunswick, Rapport de la Commission royale 

d’enquête sur l’enseignement supérieur au Nouveau-Brunswick, (1962) à la p 99 (Président : 

John J Deutsch) [Rapport Deutsch]). Un an plus tard, soit en 1963, l’Université de 

Moncton a été constituée en corporation par l’Assemblée législative avec l’adoption de 

la Universite [sic] de Moncton Act, LN-B 1963, c 119. 

27 

Rapport Deutsch, supra note 26 : « Dans son mémoire à la Commission, l’Université [ Saint- 

Joseph] a déclaré […] [I]l nous faut, dans nos plans d’avenir, établir de façon précise des normes 

élevées afin qu’on ne puisse pas venir à considérer l’enseignement donné à la population 

francophone comme ‘de deuxième qualité’ » à la p 40 ; voir généralement Gilberte 

Couturier LeBanc, Alcide Godin et Aldéo Renaud, « L’enseignement français dans les 

maritimes 1604-1992 », dans Jean Daigle, dir, L’Acadie des maritimes : études thématique 

des débuts à nos jours, Moncton, Chaire d’études acadiennes, Université de Moncton, 

1993, aux pp 543-585 ; voir aussi Clément Cormier, l’Université de Moncton – 

Historique, Moncton Centre d’études acadiennes, 1975, en ligne : 

. 

28 

Association des universités de la francophonie canadienne, La vitalité des universités de 

la francophonie canadienne, 2007 aux pp 20-21 (les auteurs conservent une copie de ce 

document) [AUFC]. 

29 

Ibid (« À titre d’exemple, la quasi-totalité des enseignantes et des enseignants du réseau scolaire 

public francophone du Nouveau-Brunswick y a été formée ; la province peut ainsi offrir un 

système d’éducation complet en français, de la maternelle aux études de troisième cycle » aux pp 

20-21).


nord-ouest du Nouveau-Brunswick, à Shippagan, dans le nord-est 30 et à 

Moncton 31 . 

Au moment de son adoption en 1963, la Universite [sic] de Moncton Act 

prévoyait ce qui suit à l’article 7 : 

The University is declared to be a degree-granting French-language University in New 

Brunswick, to which, subject to their present charter, The [sic] University of Saint Joseph, 

Universite [sic] du Sacre Coeur, Bathurst, and University St. Louis, Edmundston, will be 

affiliated for academic purposes, in the form and with the name of colleges 32 . 

Cette disposition précède la première Loi sur les langues officielles 33 du 

Nouveau-Brunswick et constitue peut-être la toute première codification 

du statut du français au palier postsecondaire au Canada à l’extérieur du 

Québec 34 . 

Aujourd’hui, certaines dispositions de la Loi sur l’Université de Moncton 

portent sur la langue française. D’une part, le paragraphe 2(2) affirme que: 

2(2) L’Université est déclarée être une 

université de langue française du 

Nouveau-Brunswick, autorisée à 

décerner des grades 35 . 

2(2) The University is declared to be a 

degree-granting French-language 

University in New Brunswick. 

30 

La présence de l’Université de Moncton dans le nord de la province est importante 

face à la migration de la population vers le sud de la province, voir Statistiques 

Canada, Estimations démographiques annuelles : régions infraprovinciales 2005-2010, 

Catalogue n° 91-214-X, Ottawa, StatCan, février 2011 (le taux d’accroissement de la 

population de Moncton est parmi les plus élevés au pays, par contre la ville doit la 

plus grande partie de sa croissance à la migration infraprovinciale) ; voir 

aussi « Moncton’s population continues to grow : StatsCan », CBCnews (7 février 

2011) en ligne : . 

31 

Loi sur l’Université de Moncton, LN-B 1986, c 94, art 4 [Loi sur l’Université de Moncton]. 

L’Université de Moncton a été constituée en corporation par la Université de Moncton 

Act, LN-B 1963, c 119, abrogée et maintenue en existence par LN-B 1986, c 94, 

modifiée par LN-B 1996, c 90, modifiée par LN-B 2001, c 53, modifiée par LN-B 

2003, c 37, modifiée par LN-B 2006, c 34. La Loi sur l’Université de Moncton est une loi 

d’intérêt privé. Une version consolidée de la loi, connue sous le nom de La Charte de 

l’Université de Moncton, est disponible en français en ligne : 

. 

32 

Universite de Moncton Act, LN-B, 1963, c 119 (abrogée). 

33 

LN-B 1969, c 14. 

34 

La Loi concernant l’Université d’Ottawa, SO 1965, c 137 prévoit à son alinéa 4(c) que 

l’objet de l’Université d’Ottawa est notamment de « [f]avoriser le développement du 

bilinguisme et du biculturalisme, préserver et développer la culture française en Ontario » [Loi 

concernant l’Université d’Ottawa]. 

35 

Loi sur l’Université de Moncton, supra note 31, art 2(2).

D’autre part, le paragraphe 4(3) prévoit que : 

4(3) Chacune des constituantes a son 

propre budget. La répartition des 

subventions accordées par les 

gouvernements provincial ou fédéral 36 

s’établit pour chacune des constituantes 

selon les mêmes normes et critères 

employés pour la répartition des 

subventions ordinaires accordées aux 

différentes universités de la province du 

Nouveau-Brunswick [nous soulignons] 37 . 

Taxonomie 77 

4(3) Each campus shall have its own 

budget. The distribution of grants 

originating from the Provincial or 

Federal Governments shall be made to 

each campus according to the same 

standards and criteria used in the 

allotment of regular grants to the 

various universities in the Province of 

New Brunswick. 

Cette disposition codifie un principe d’égalité selon lequel l’Université 

de Moncton est financée équitablement par rapport aux institutions 

postsecondaires de langue anglaise de la province. 

L’Université de Moncton a également adopté des règlements 

internes afférents au statut du français 38 . L’article 4 des Statuts et 

règlements 39 de l’université réaffirme que « l’Université de Moncton est un 


Certains soutiennent qu’il existe une obligation du gouvernement fédéral d’appuyer 

l’enseignement dans la langue de la minorité officielle. Voir Mark Power et al, « Le 

soutien financier accordé par le ministère du Patrimoine canadien pour 

l’enseignement dans la langue de la minorité : constats et proposition de réforme » 

(2012) 12 RCLF 163; voir également Commission scolaire francophone du Yukon no 23 c 

Procureure générale du Territoire du Yukon, 2011 YKSC 57 (la Cour suprême du Yukon 

semble dire que l’appui du gouvernement fédéral est nécessaire afin de rencontrer les 

obligations de l’article 23 de la Charte canadienne, supra note 11 : « Le [gouvernement du 

Yukon] et le gouvernement fédéral ont reconnu que l’application de l’art. 23 de la Charte 

suscite des coûts supplémentaires. Donc, les ententes Canada-Yukon prévoient des fonds 

supplémentaires spécifiquement affectés à l’enseignement en français langue première, afin de 

permettre à la CSFY de rencontrer ses obligations de transmettre la langue et la culture en vertu 

de l’art. 23, selon les principes de la jurisprudence établie » au para 861). 

37 

Loi sur l’Université de Moncton, supra note 30, art 4(3). Cette disposition a été adoptée 

en 1986, soit cinq ans après l’adoption de la Loi reconnaissant l’égalité des deux 

communautés linguistiques officielles au Nouveau-Brunswick, LN-B 1981, c O-1.1 [Loi 

reconnaissant l’égalité des deux communautés linguistiques officielles au Nouveau-Brunswick]. 

38 

Le paragraphe 6(6) de la Loi sur l’Université de Moncton, supra note 31, stipule que 

« [s]ous réserve de l’article 9, le Conseil des gouverneurs peut établir et modifier des règlements 

administratifs ». 

39 

L’Université de Moncton, « Statuts et règlements » publié par le Secrétariat général, 

mise à jour le 1 er septembre 2009, CGV-861213, ISBN : 978-1-897214-17-6, en ligne : 

[Statuts et règlements].


établissement de langue française » 40 . Pour sa part, l’article 42 des Statuts et 

règlements établit un conseil de langue française ayant la responsabilité de : 

a) recommander les objectifs à atteindre en matière de perfectionnement de la 

langue française dans les divers secteurs de l’Université ; [et] 

b) recommander les modifications à la politique et aux normes linguistiques 41 . 

2. Les collèges communautaires du Nouveau-Brunswick 42 

Le Collège communautaire du Nouveau-Brunswick (« CCNB ») dessert 

les communautés acadiennes et francophones du Nouveau-Brunswick 

depuis cinq campus situés à Bathurst, à Campbellton, à Dieppe, 

à Edmundston et dans la Péninsule acadienne 43 . Ce collège est constitué, 

avec le New Brunswick Community College, par la Loi sur les collèges 

communautaires du Nouveau-Brunswick 44 . Le principe structurant de cette loi 

est celui de la dualité linguistique. Son article 5 prévoit que : 

5 Le New Brunswick 

Community College (NBCC) est 

organisé en anglais et le Collège 

communautaire du Nouveau- 

Brunswick (CCNB) est organisé 

en français 45 . 

5 The New Brunswick 

Community College (NBCC) 

shall be organized in the 

English language and the 

Collège communautaire du 

Nouveau-Brunswick (CCNB) 

shall be organized in the 

French language. 

40 

Ibid, art 4. 

41 

Ibid, art 42. 

42 

En 2010, les revenus du CCNB s’élevaient à plus de 54 000 000 $. En 2009-2010 on 

comptait plus de 3 100 étudiants inscrits dans l’un ou l’autre des programmes 

réguliers offerts par le collège. Plus de 6 500 étudiants ont poursuivi des études au 

CCNB par l’entremise de la formation continue, c’est-à-dire la formation 

contractuelle, la formation à distance et les cours du soir. Plus de 700 employés sont 

répartis dans toutes les régions pour assurer la prestation des services offerts par le 

collège. Voir « Rapport annuel 2009-2010 », en ligne : CCNB 

. 

43 

Loi sur les collèges communautaires du Nouveau-Brunswick, LN-B 2010, c N-4.05, art 3(2), 

annexe B, [Loi sur les collèges communautaires du Nouveau-Brunswick]. La présence du 

Collège communautaire du Nouveau-Brunswick dans le nord de la province d’autant 

plus importante étant donné la migration de la population vers le sud de la province, 

voir note 30. 

44 

Ibid, art 3(1). 

45 

Ibid, art 5.

Taxonomie 79 

Ces deux collèges établissent aussi leurs propres lignes directrices pour 

leurs programmes d’études et leurs services 46 . Les lignes directrices de ces 

collèges sont toutefois assujetties à la révision et à l’approbation annuelle 

du ministre de l’Éducation postsecondaire, de la Formation et du 

Travail 47 . En réalité, la discrétion du ministre de substituer ses lignes 

directrices à celles du CCNB est étroitement restreinte par l’article 16.1 de 

la Charte canadienne 48 et la Loi reconnaissant l’égalité des deux communautés 

linguistiques officielles au Nouveau-Brunswick 49 , qui sont abordés ci-dessous. 

La Loi sur les Collèges communautaires du Nouveau-Brunswick, habilite le 

CCNB à « prendre des règlements administratifs visant le contrôle et la 

gestion des affaires et des affaires internes de celle-ci » 50 . Ainsi, dans 

l’exercice de ses compétences, le CCNB a adopté une politique avec le 

New Brunswick Community College portant sur le caractère homogène 

linguistique de chaque institution: 

Les lignes directrices qui suivent s’appliquent à la livraison des programmes à 

l’intérieur de la province : 

1. un programme régulier offert en anglais où que ce soit dans la province ne peut être 

offert que par le NBCC. 

2. un programme régulier offert en français où que ce soit dans la province ne peut 

être offert que par le CCNB. 

3. un campus peut offrir un programme non régulier dans sa région de service, tel que 

défini plus bas, dans les deux langues officielles 51 . 

46 

Ibid, art 19(1) : « Dans le présent article, ‘ligne directrice’ s’entend d’une ligne directrice visée à 

l’article 20 [Programmes d’études], 21 [Services], 26 [Plan d’affaires] ou 27 [Examen 

organisationnel et opérationnel] ». 

47 

Ibid, art 19(2), 19(3). 

48 

Charte canadienne, supra note 11, art 16.1. 

49 

Loi reconnaissant l’égalité des deux communautés linguistiques officielles au Nouveau- 

Brunswick, supra note 37. 

50 

Loi sur les collèges communautaires du Nouveau-Brunswick, supra note 43, art 18(1), (sous 

réserve des dispositions édictées dans la loi). 

51 

Langue de prestation des programmes au CCNB et NBCC, N o CCNB-8305, en vigueur 

depuis 2010-05-07, en ligne : .


3. La protection juridique des institutions postsecondaires du 

Nouveau-Brunswick 

L’Université de Moncton et le CCNB sont des institutions 

postsecondaires offrant des programmes et des services en français qui 

bénéficient d’une protection juridique complète. Tout d’abord, ces 

institutions sont protégées en vertu du paragraphe 16.1(1) de la Charte 

canadienne : 

16.1(1) La communauté linguistique 

française et la communauté linguistique 

anglaise du Nouveau-Brunswick ont un 

statut et des droits et privilèges égaux, 

notamment le droit à des institutions 

d’enseignement distinctes et aux 

institutions culturelles distinctes 

nécessaires à leur protection et à leur 

promotion [nous soulignons] 52 . 

16.1(1) The English linguistic 

community and the French linguistic 

community in New Brunswick have 

equality of status and equal rights and 

privileges, including the right to distinct 

educational institutions and such 

distinct cultural institutions as are 

necessary for the preservation and 

promotion of those communities. 

Cette disposition comprend sans aucun doute le droit à des 

institutions postsecondaires de langue française distinctes qui sont de 

qualité égale aux institutions postsecondaires de langue anglaise. 

L’expression « institutions d’enseignement distinctes » capte 

vraisemblablement l’Université de Moncton et la CCNB. Le constituant 

n’a pas précisé le sens des mots « institutions d’enseignements distinctes ». 

Il convient donc de lire ces mots à la lumière du principe d’interprétation 

moderne formulé par Elmer A. Drieger et retenue à maintes reprises par la 

Cour suprême du Canada pour conclure que cette formulation vise 

nécessairement les institutions postsecondaires, y compris l’Université de 

Moncton et le CCNB 53 . Il convient également d’interpréter « institutions 

d’enseignements distinctes » en gardant à l’esprit le principe directeur 

énoncé dans l’affaire R c Beaulac 54 . Il serait difficile de prétendre que ces 

institutions ne figurent pas parmi les institutions nécessaires à la 

protection et à la promotion de la communauté de langue française du 

Nouveau-Brunswick. 

52 

Charte canadienne, supra note 11, art 16.1(1). 

53 

Voir E A Driedger, Construction of Statutes, 2 e éd, Toronto, Butterworths, 1983, à la 

p 87 ; voir aussi Bell ExpressVu Limited Partnership c Rex, [2002] 2 RCS 559 au para 26. 

54 

[1999] 1 RCS 768 (« [l]es droits linguistiques doivent dans tous les cas être interprétés en 

fonction de leur objet, de façon compatible avec le maintien et l’épanouissement des collectivités 

de langue officielle au Canada » [souligné dans l’original] au para 25).

Taxonomie 81 

Le paragraphe 16.1(2) de la Charte canadienne s’applique aussi à 

l’Université de Moncton et au CCNB : 

16.1(2) Le rôle de la législature et 

du gouvernement du Nouveau- 

Brunswick de protéger et de 

promouvoir le statut, les droits et 

les privilèges visés au paragraphe (1) 

est confirmé 55 . 

16.1(2) The role of the legislature 

and government of New 

Brunswick to preserve and 

promote the status, rights and 

privileges referred to in subsection 

(1) is affirmed. 

À ce sujet, la Cour d’appel du Nouveau-Brunswick a précisé que 

l’article 16.1 de la Charte canadienne tend : 

à maintenir les deux langues officielles, ainsi que les cultures qu’elles représentent, et à 

favoriser l’épanouissement et le développement des deux communautés linguistiques 

officielles. Elle est de nature réparatrice et entraîne des conséquences concrètes. Elle 

impose au gouvernement provincial l’obligation de prendre des mesures positives 

destinées à assurer que la communauté de langue officielle minoritaire ait un statut et 

des droits et privilèges égaux à ceux de la communauté de langue officielle majoritaire. 

[…] Le principe de l’égalité des deux communautés linguistiques est une notion 

dynamique. Elle implique une intervention du gouvernement provincial qui exige 

comme mesure minimale l’égalité de traitement des deux communautés, mais dans 

certaines circonstances où cela s’avérait nécessaire pour atteindre l’égalité, un 

traitement différent en faveur d’une minorité linguistique afin de réaliser la dimension 

collective autant qu’individuelle d’une réelle égalité de statut 56 . 

Une protection juridique similaire découle des termes de la Loi 

reconnaissant l’égalité des deux communautés linguistiques officielles au Nouveau- 

Brunswick 57 . L’article 2 de cette loi prévoit que : 

55 

Charte canadienne, supra note 11, art 16.1(2). 

56 

Charlebois c Mowat et ville de Moncton (2001), 242 NBR (2 e ) 259, au para 80 (CA) 

[Charlebois]. Certains pourraient prétendre que le paragraphe 16.1(2) n’est que 

déclaratoire : voir Forum des maires de la Péninsule acadienne c Canada (Agence canadienne 

de l’inspection des aliments), 2004 CAF 263, [2004] 4 RCF 276 (la Cour d’appel fédérale 

a jugé que l’ancienne partie VII de la Loi sur les langues officielles, LRC, 1985, c 31 

(4 e suppl) [LLO] n’était pas justiciable des tribunaux) ; contra Société des Acadiens c 

Association of Parents, [1986] 1 RCS 549 aux para 140-142 ; voir aussi Michel Doucet 

« La Partie VII sur la Loi sur les langues officielles du Canada : Une victoire à la 

Pyrrhus ou un réel progrès » (2007) 9 RCLF 31, aux pp 66-69 ; voir aussi Canada 

(Vérificateur général) c Canada (Ministre de l’Énergie, des Mines et des Ressources), [1989] 2 

RCS 49 aux pp 91-92. 

57 


Brunswick, supra note 37. La Loi reconnaissant l’égalité des deux communautés 

linguistiques officielles au Nouveau-Brunswick aurait été la réponse législative au conflit


2. Le gouvernement du Nouveau- 

Brunswick assure la protection de 

l’égalité de statut et de l’égalité des 

droits et privilèges 

des communautés linguistiques 

officielles et en particulier de leurs 

droits à des institutions distinctes où 

peuvent se dérouler des activités 

culturelles, éducationnelles et sociales 

[nous soulignons] 58 . 

2. The Government of New 

Brunswick shall ensure 

protection of the equality of 

status and the equal rights and 

privileges of the official 

linguistic communities and in 

particular their right to 

distinct institutions within 

which cultural, educational 

and social activities may be 

carried on. 

Les mots « institutions distinctes où peuvent se dérouler des activités 

[…] éducationnelles » captent manifestement l’Université de Moncton et le 

CCNB 59 . De plus, l’article 3 de la loi garantit que : 

3. Le gouvernement du Nouveau- 

Brunswick, dans les mesures législatives 

qu’il propose, dans la répartition des 

ressources publiques et dans ses 

politiques et programmes, encourage, 

par des mesures positives, le 

développement culturel, économique, 

éducationnel et social 

des communautés linguistiques 

officielles [nous soulignons] 60 . 

3. The Government of New 

Brunswick shall, in its 

proposed laws, in the 

allocation of public resources 

and in its policies and 

programs, take positive actions 

to promote the cultural, 

economic, educational and 

social development of the 

official linguistic communities. 

portant sur la pérennité de l’hôpital Dr. Georges-L Dumont, un centre hospitalier 

universitaire homogène de langue française à Moncton. Une révision des débats à 

l’Assemblée législative démontre qu’il n’a pas été question de l’hôpital Georges-L 

Dumont. Voir généralement Claude Bourque, Rêve des visionnaires : historique de l’Hôtel- 

Dieu/Hôpital Dr. Georges-L. Dumont, Moncton, Éditions d’Acadie, 1997. 

58 


Brunswick, supra note 37, art 2. 

59 

Voir notamment les affirmations du Président du Conseil du Trésor, l’honorable 

Jean-Maurice Simard, qui a déposé le projet de loi : « Prenons l’Université de Moncton, 

autre exemple d’institution distincte. Qui osera mettre en doute la nécessité pour les 

francophones d’avoir accès à un enseignement supérieur dans leur langue maternelle, de sorte 

qu’ils puissent retourner dans leur communauté et participer efficacement à son développement 

social, économique ou autre ? » (Nouveau-Brunswick, Assemblée législative, Journal des 

débats, 49 e lég, 3 e sess, vol 16 (16 juillet 1981) à la p 6647 (M Simard)). 

60 


Brunswick, supra note 37, art 3.

Taxonomie 83 

La Loi reconnaissant l’égalité des deux communautés linguistiques officielles 

au Nouveau-Brunswick ne semble jamais avoir été appliquée par les 

tribunaux et il est possible que certains puissent essayer de mettre en 

doute sa portée ou sa force normative. Contrairement à l’article 16.1 de la 

Charte canadienne, dont l’atteinte injustifiée 61 devra normalement donner 

droit à une mesure de redressement convenable et juste 62 , la Loi 

reconnaissant l’égalité des deux communautés linguistiques officielles au Nouveau- 

Brunswick, ne comprend pas une disposition réparatrice 63 . 

Le législateur du Nouveau-Brunswick a pris le soin de protéger le 

caractère homogène francophone de l’Université de Moncton et des autres 

institutions postsecondaires de langue française du Nouveau-Brunswick au 

moment de remplacer la première Loi sur les langues officielles 64 , votée en 

1969. Les articles 4 et 27, de la nouvelle Loi sur les langues officielles 65 , lus 

ensemble, permettent de conclure sans aucun doute que le législateur 

souhaitait éviter l’anglicisation et la bilinguisation du réseau des 

institutions postsecondaires offrant des programmes et des services en 

français au Nouveau-Brunswick 66 . 

61 

Charte canadienne, supra note 11, art 1. 

62 

Charte canadienne, supra, note 11, art 24(1) ; voir aussi Doucet-Boudreau c Nouvelle-Écosse 

(Ministre de l’Éducation), [2003] 3 RCS 3, aux para 52-59. 

63 

En matière des droits linguistiques, il arrive que des mesures de redressement puissent 

être accordées même en l’absence de dispositions réparatrices ; voir par ex Lalonde, 

supra note 3 aux para 163-169 ; voir aussi R c Rémillard, 2009 MBCA 112. 

64 

LN-B 1969, c 14. 

65 

Loi sur les langues officielles LN-B 2002, c O-0.5, art 4, 7. 

66 

Ibid art 4: « [n]e sont pas visés par la définition d’institution à l’article 1, les 

institutions d’enseignement distinctes et les institutions culturelles distinctes et, sans 

limiter la portée générale de ce qui précède, le système scolaire de la province, dont les 

sections française et anglaise du ministère de l’Éducation et du Développement de la 

petite enfance, y compris les écoles et leurs comités, les conseils et administrations, les 

centres communautaires, les universités et, le cas échéant, les collèges 

communautaires », ibid, art 27; « [l]e public a le droit de communiquer avec toute 

institution et d’en recevoir les services dans la langue officielle de son choix ».


B. Les collèges militaires du Canada 

1. Le Collège militaire royal 67 et le Collège militaire royal de Saint- 

Jean 68 

Le paragraphe 91(7) de la Loi constitutionnelle de 1867 accorde au 

gouvernement fédéral l’autorité de légiférer en matière de milice, de 

service militaire, de service naval et de la défense du pays 69 . Le gouverneur 

général en conseil peut établir des institutions postsecondaires reliées à la 

défense nationale. Selon l’article 47 de la Loi sur la défense nationale : 

47(1) Le gouverneur en conseil et 

les autres autorités qu’il désigne ou 

nomme à cette fin peuvent, dans 

l’intérêt de la défense nationale, 

créer des établissements 

pour la formation et l’instruction 

des officiers et militaires du rang, 

des personnels du ministère, des 

candidats à l’enrôlement dans les 

Forces canadiennes ou à un emploi 

au ministère, ainsi que des autres 

personnes autorisées à les 

fréquenter par le ministre ou en 

son nom. 

(2) Les établissements visés au 

paragraphe (1) sont régis et 

administrés selon les modalités 

fixées par le ministre 70 . 

47(1) The Governor in Council, 

and any other authorities that are 

prescribed or appointed by the 

Governor in Council for that 

purpose, may in the interests of 

national defence establish 

institutions for the training and 

education of officers and noncommissioned 

members, officers 

and employees of the Department, 

candidates for enrolment in the 

Canadian Forces or for 

employment in the Department 

and other persons whose 

attendance has been authorized by 

or on behalf of the Minister. 

(2) The institutions referred to in 

subsection (1) shall be governed 

and administered in the manner 

prescribed by the Minister. 

67 

Aucun responsable du Collège Militaire Royal n’a voulu indiquer le nombre 

d’étudiants inscrits à cette institution malgré plusieurs demandes. 

68 

Selon le bureau du Secrétaire générale du Collège militaire royal de Saint-Jean, en 

automne 2011, il y avait 202 étudiants à temps plein qui étudiaient au collège. Il y a 

environ 40 professeurs qui enseignent au Collège militaire royal de Saint-Jean. 

69 

Loi constitutionnelle de 1867 (R-U), 30 & 31 Victoria c 3, art 91(7), reproduite dans 

LRC 1985, ann II, n°5 ; Peter Hogg, Constitutional law of Canada, 5th ed, feuilles 

mobiles (consultées le 1 novembre 2011), Toronto, Carswell, 2007, vol 1 à la p 17-24 : 

« In Canada, the defence power of s. 91(7) should be regarded as the authority for legislation 

relating to the armed forces and other traditional military matters »). 

70 

Loi sur la défense nationale LRC 1985, c N-5, art 47 [Loi sur la défense nationale].

Taxonomie 85 

Le Collège militaire royal (« CMR ») a été établi en vertu de l’Acte pour 

établir un Collège Militaire dans une des villes de garnison du Canada 71 . Cette 

institution a été établie afin de donner : 

[…] une complète éducation dans 

toutes les branches de la tactique 

militaire, y compris l’art des 

fortifications, le génie et les 

connaissances scientifiques 

générales que la profession 

militaire exige, et qui formera des 

officiers pour le commandement et 

l’état-major 72 . 

[…] a complete education in all 

branches of military tactics, 

fortification, engineering and 

general scientific knowledge in 

subjects connected with and 

necessary to a thorough knowledge 

of the military professions and for 

qualifying officers for command 

and for staff appointments. 

Le CMR a ouvert ses portes à Kingston 73 le 1 er juin 1876 74 . 

Aujourd’hui, le CMR décerne des diplômes universitaires en vertu des 

compétences conférées par l’Assemblée législative de l’Ontario aux termes 

de la Royal Military College of Canada Degrees Act 75 . 

Il existe un autre collège militaire au Canada qui s’appelle le Collège 

militaire royal de Saint-Jean (« CMRSJ ») 76 . Fondé en 1952 77 , il est situé à 

Saint-Jean-sur-Richelieu, au Québec 78 . Le collège a été créé afin de favoriser 

la participation des Canadiens d’expression française aux Forces armées et 

pour faciliter la possibilité de se joindre au rang d’officier 79 . Selon Richard 

71 

Acte pour établir un Collège Militaire dans une des villes de garnison du Canada, LC 1874, c 

36. 

72 

Ibid, art 1. 

73 

Ibid, L’article 1, précise que l’institution « sera établie dans l’une des villes de garnison du 

Canada ». 

74 

Défense nationale, À propos du CMR, en ligne : Collège militaire royal du Canada 

. 

75 

LO 1959, c 131, art 2(1) [Royal Military College of Canada Degrees Act]. En vertu du 

paragraphe 2(1), le Sénat du CMR a le pouvoir de décerner des diplômes et des grades 

honorifiques dans le domaine des arts, des sciences et du génie. 

76 

Il existait de 1940 à 1995, un troisième collège situé à Victoria en Colombie- 

Britannique, qui s’appelait le Collège militaire Royal Roads. Le Collège militaire 

Royal Roads était le seul collège militaire dans l’Ouest du Canada. 

77 

Le Collège militaire Royal de Saint-Jean a été constitué en vertu de la Loi sur la défense 

nationale (SRC 1970, c N-4) (voir la Loi sur le Collège militaire Royal de Saint-Jean, LQ 

1995, c 68, préambule [Loi sur le Collège militaire Royal de Saint-Jean]). 

78 

Voir généralement Jean-Yves Gravel, « La fondation du Collège militaire royal de 

Saint-Jean » (1973) 27 n° 2 Revue d’histoire de l’Amérique française 257. 

79 

Ibid (« Dans la force permanente des trois armées [les francophones] forment 6,9 % des officiers


Carrier, « son existence fut, dans une large mesure, un grand succès, 

surtout parce que l’institution a donné l’occasion aux jeunes francophones 

et à de très nombreux anglophones de devenir des officiers bilingues » 80 . 

La création du CMRSJ était donc un moyen concret par lequel le 

Parlement fédéral tentait de favoriser la progression vers l’égalité de statut 

et d’usage du français et de l’anglais. 

Le gouvernement du Canada a fermé le CMRSJ en 1994 81 . Le 

gouvernement du Canada était alors en train de rationaliser ses dépenses 

afin d’essayer d’éponger un déficit important 82 . Plusieurs ont déploré la 

fermeture du CMRSJ. Le chef de l’opposition officielle fédérale, 

l’honorable Lucien Bouchard 83 , proposait l’alternative suivante : 

et 15,3 % des hommes de troupe. Du côté des promotions, les officiers francophones se trouvent 

dans les grades subalternes alors qu’ils ne comptent que 3,8 % des 662 lieutenants-colonels ou 

l’équivalent, 1,2 % des 162 colonels et deux des 89 généraux. Ils sont aussi absents des centres 

de décision. Au Grand Quartier Général (GQG), à Ottawa, ils sont doublement sousreprésentés 

avec 55 officiers (soit 3,9 %) qui, pour la plupart, remplissent des fonctions sans 

importance. Au Québec même, ils n’occupent que quinze des 84 postes supérieurs » aux pp 

257-258) ; voir aussi Jacques Castonguay, Le Collège militaire royal de Saint-Jean, 

Montréal, Méridien, 1989 [Jacques Castonguay]. 

80 

Richard Carrier, Le Collège militaire Royal de Saint-Jean : 10 ans après, Revue militaire 

canadienne, Hiver 2006-2007 à la p 40, en ligne : ; voir aussi généralement Jacques Castonguay supra note 79. 

81 

La fermeture du Collège militaire royal de Saint-Jean a été annoncée le 22 février 1994 

au moment de la première lecture du budget fédéral. Voir notamment : Jacques 

Castonguay, Pourquoi a-t-on fermé le Collège militaire de Saint-Jean ? Montréal, Art Global, 

2005. 

82 

Lors du dépôt du budget, le ministre des Finances a dit : « La guerre froide est terminée. 

Le budget énonce des mesures immédiates, adaptées aux années 90, qui seront suivies d’un 

réexamen complet de la politique de défense du Canada. […] Il est maintenant temps pour le 

gouvernement de mettre de l’ordre dans ses finances. Cela fait des années que les gouvernements 

promettent plus qu’ils ne peuvent en donner, et en donnent plus qu’ils ne peuvent se permettre. 

Cela ne peut plus continuer. Nous y mettons fin. Les mesures prises dans ce budget ramèneront 

le déficit de 45,7 milliards de dollars cette année à 39,7 milliards en 1994–1995 et à 32,7 

milliards l’année suivante » (Débats de la Chambre des communes, 35 e parl, 1 re sess, n° 27 

(22 février 1994) à 17h05 (l’honorable Monsieur Paul Martin)). 

83 

L’honorable Lucien Bouchard a été élu à la Chambre des communes pour la première 

fois en 1988 et a été réélu en 1988 et en 1993 dans la circonscription de Lac-Saint- 

Jean. Il a été le chef de l’opposition officielle du Canada de 1993-1996. En 1996, il 

quitte la Chambre des communes et devient chef du Parti québécois et premier 

ministre du Québec. Il détient ce poste jusqu’en 2001.

Taxonomie 87 

Monsieur le Président, je voudrais faire une proposition constructive au premier 

ministre, en lui garantissant l’appui total du Bloc [québécois] en regard d’une 

décision qu’il prendrait et qui serait de retenir l’option du maintien d’un collège 

francophone à Saint-Jean, d’un collège anglophone à Kingston, en réduisant 

d’une façon équitable le nombre d’élèves-officiers dans les deux collèges, pour 

ainsi laisser aux francophones la possibilité de se préparer à faire une carrière 

dans l’armée dans leur milieu et dans leur langue 84 . 

Le même jour, le très honorable premier ministre, Jean Chrétien 85 lui 

répondait : 

Monsieur le Président, nous l’avons dit, seulement 16 p. 100 des officiers de 

l’armée canadienne de langue française sont des diplômés du Collège de Saint- 

Jean. 

[…] Le Collège militaire, avec une réduction du nombre de militaires dans 

l’armée, n’est plus nécessaire. Or, le chef de l’opposition nous a dit que nous 

devrions couper 25 p. 100 des dépenses dans l’armée canadienne 86 . 

Le premier ministre insistait également sur le caractère bilingue des 

collèges militaires canadiens : « […] monsieur le Président, le Collège de Saint- 

Jean, tout comme le Collège de Kingston, sont des collèges bilingues, et je dis bien 

bilingues » 87 . 

La décision controversée de fermer le CMRSJ a soulevé une 

polémique importante concernant le bilinguisme au Canada et le véritable 

statut du français au sein du gouvernement fédéral 88 et en Ontario 89 . Le 

84 

Débats de la Chambre des communes, 35 e parl, 1 re sess, n° 38 (16 mars 1994) à la p 2353 

(le chef de l’opposition, Monsieur Lucien Bouchard). Le référendum sur la 

souveraineté du Québec a eu lieu environ 7 mois plus tard, le 30 octobre 1995. 

L’honorable Peter Milliken (Libéral) représentait la circonscription fédérale de 

Kingston et Claude Bachand (Bloc Québecois) représentait la circonscription fédérale 

de Saint-Jean, où était situé le CMRSJ. 

85 

Le très honorable Jean Chrétien a été élu à la Chambre des communes pour la 

première fois en 1963 et a été réélu en 1965, en 1968, en 1972, en 1974, en 1979, en 

1980, en 1984, en 1993, en 1997 et en 2000. Il a été le premier ministre du Canada 

de 1993 à 2003. Voir généralement Lawrence Martin, Iron man : the defiant reign of Jean 

Chrétien, Toronto, Viking Canada, 2003 et Lawrence Martin, Chrétien : The will to win, 

Toronto, Lester Publishing, 1995. 

86 


(le premier ministre, le très honorable Monsieur Jean Chrétien). 

87 


(le premier ministre, le très honorable Monsieur Jean Chrétien). 

88 

Dans son rapport annuel de 1995, le Commissaire aux langues officielles (« CLO ») a 

noté « les vives réactions qu’avait suscitées la fermeture du Collège militaire royal de Saint-


jean ». Le CLO a également noté qu’il a reçu dix-huit plaintes mettant en cause le 

collège à Kingston (Canada, Commissariat aux langues officielles, Rapport Annuel 

1995, Ottawa, Ministre des Approvisionnements et Services Canada, 1996 à la p 42). 

Dans le prochain rapport annuel du CLO en 1996, l’évaluation des plaintes a relevé 

que des progrès ont été réalisés mais que l’utilisation du français devait être 

normalisée davantage avant que le CMR ne devienne une institution pleinement 

bilingue. Le CLO a recommandé d’augmenter le nombre de livres et de périodiques 

en français à la bibliothèque ; d’assurer un équilibre linguistique juste et équitable 

dans la présentation de séances d’informations ; de demander aux orateurs invités 

d’utiliser les deux langues officielles dans des proportions équitables ; de diffuser toute 

documentation à l’intention du personnel et des élèves-officiers dans les deux langues 

officielles; et d’équilibrer davantage l’utilisation des deux langues officielles lors des 

assemblées de professeurs (Canada, Commissariat aux langues officielles, Rapport 

annuel 1996, Ottawa, Ministre des Approvisionnements et Services Canada, 1997, aux 

pp 44-45). Plus généralement, il semble que l’égalité du statut et d’usage du français au 

sein du ministère de la Défense du Canada est très difficile à atteindre. Selon le CLO 

« il reste beaucoup à faire avant que le ministère de la Défense nationale et les Forces 

canadiennes soient totalement conformes à la Loi sur les langues officielles » (Canada, 

Commissariat aux langues officielles, Vérification de la langue de travail au quartier 

général de la défense nationale, suivi, mars 2011, en ligne : 

à la p 11). 

89 

Au moment de l’annonce de la fermeture du CMRSJ, la qualité d’instruction offerte 

par l’école secondaire de langue française à Kingston (l’École secondaire catholique 

Marie-Rivier) n’était pas équivalente à celle offerte par les écoles de langue anglaise 

dans la région. Il est clair qu’à l’époque, l’article 23 de la Charte canadienne, supra note 

11, n’était pas respecté à Kingston en matière d’éducation secondaire en langage 

français. Dans un cahier Companion du quotidien Whig-Standard de Kingston, 

publié le 22 octobre 1994, un article intitulé « Cramped quarters » explique que 

l’École secondaire catholique Marie-Rivier était logée à l’intérieur de neuf portatives 

qui n’avaient pas d’accès à l’eau courante. Il semble qu’il était difficile de réchauffer 

l’école et qu’il manquait d’espace. Les élèves dépendaient des services offerts depuis 

une école avoisinante, dont les salles de toilette, les laboratoires, le gymnase et le 

théâtre (les auteurs conservent une copie de cet article). Dans son rapport annuel de 

1994, le Commissaire aux langues officielles explique que « [p]our la communauté 

d’expression française de Kinsgton, la situation a besoin d’être améliorée […] et l’unique école 

secondaire n’a que des locaux temporaires, loin de convenir à leurs besoins. À la suite de la 

décision du gouvernement fédéral de fermer le Collège militaire royal de Saint-Jean, au Québec, 

et devant la perspective de l’arrivée de nouveaux élèves francophones, le Commissaire aux 

langues officielles et divers représentants du gouvernement fédéral ont prié le ministère de 

l’Éducation et les conseils scolaires de Kingston d’assurer les ressources nécessaires » (Canada, 

Commissariat aux langues officielles, Rapport annuel 1994, Ottawa, Ministre des 

Approvisionnements et Services Canada, 1995 à la p 94). Le 31 mai 1994, le premier 

ministre du Canada s’est engagé à bâtir une nouvelle école secondaire à Kingston : 

« Moi, je peux prendre l’engagement qu’il y aura une école française bâtie à Kingston dans de

Taxonomie 89 

CMRSJ demeure au cœur des préoccupations des communautés 

d’expression française 90 . Le Commissaire aux langues officielles a décrit 

l’impact de la décision de fermer le Collège militaire de Saint-Jean dans les 

termes suivants : 

Durant les années 90, dans la foulée des mesures prises par le gouvernement 

pour assainir les finances publiques, on procédait à la fermeture de deux des trois 

collèges militaires existants, dont le Collège militaire Royal Roads et le Collège 

militaire royal de Saint-Jean. À ce moment, le Collège militaire royal de 

Kingston, déjà bilingue en théorie, devenait un centre de formation des élèves 

officiers complètement bilingues. Malgré de réels efforts déployés par les 

dirigeants de Kingston, nous constations, en 1995, une certaine baisse du 

nombre d’élèves officiers francophones. Il serait d’ailleurs intéressant d’en 

connaître le nombre actuel. Malgré tout, pendant les années 90, la Défense a 

réalisé certains progrès en ce qui concerne la formation professionnelle en 

français destinée aux soldats. Tel n’est pas le cas, toutefois, pour la formation ou 

le perfectionnement des officiers. En effet, on constate que lors de son ascension 

dans la hiérarchie militaire, un officier peut difficilement poursuivre sa 

formation en français [nous soulignons] 91 . 

brefs délais » (Débats de la Chambre des communes, 35 e parl, 1 re sess, n° 75 (31 mai 1994) à 

14 h 45 (le premier ministre, le très honorable Monsieur Jean Chrétien). De surcroît, 

le Commissaire aux langues officielles explique que « pendant plusieurs mois le conseil 

municipal de Kingston a refusé d’accorder au conseil scolaire le permis nécessaire pour 

l’établissement de l’école, invoquant des problèmes de zonage municipal et de pertes de revenus ». 

Une première intervention du gouvernement de l’Ontario ne résolut pas le conflit et 

la cause est portée devant les tribunaux. Enfin, « en décembre [1994], le juge Hector 

Soublière de la Cour de l’Ontario a rendu une décision permettant la construction 

d’une école » (Canada, Commissariat aux langues officielles, Rapport Annuel 1994, 

Ottawa, Ministre des Approvisionnements et Services Canada, 1995 à la p 94). Une 

entente pour bâtir une nouvelle école secondaire francophone à Kingston est 

intervenue entre la province de l’Ontario, la ville de Kingston et le conseil scolaire le 

12 janvier 1995 (les auteurs conservent une copie de l’entente). 

90 

« Honorables sénateurs, l’une des erreurs du passé que je considère impardonnable est la 

fermeture du Collège militaire royal de Saint-Jean » (Débats du Sénat, 39 e parl, 1 re sess, vol 

143, n o 93 (3 mai 2007) à 14h15 (l’honorable Marcel Prud’homme). L’honorable 

Marcel Prud’homme a été élu à la Chambre des communes pour la première fois en 

1964 et a été réélu lors des huit prochaines élections générales. En 1993, il est nommé 

au Sénat du Canada sur l’avis du premier ministre Brian Mulroney. 

91 

Chambre des communes, Comité permanent des langues officielles, Témoignages, 

39 e lég, 1 re ses, n° 43 (1 mars 2007) à 9 h 15 (Commissaire aux langues officielles , 

Monsieur Graham Fraser).


Le CMRSJ a rouvert ses portes en 2007 92 . Il offre aujourd’hui des 

programmes collégiaux en tant que collège d’enseignement général et 

professionnel 93 . Dans son discours annonçant le rétablissement du 

CMRSJ, le ministre de la Défense nationale, l’honorable Gordon 

O’connor a expliqué que : 

[…] nous sommes sérieux dans notre intention de respecter la Loi sur les langues 

officielles. Le Collège militaire royal de Saint-Jean en plus de contribuer de 

nouveau à la noble tradition de développer des officiers bilingues, offrira au 

cours de la prochaine année une formation de niveau collégiale d’une durée de 

deux ans 94 [nous soulignons]. 

Le sénateur Dallaire affirmera dans la foulée de cette décision 

que « […] la décision de fermer le Collège militaire royal de Saint-Jean a été fort 

malencontreuse » 95 . 

Aujourd’hui, le CMRSJ « offre aux élèves officiers admis […] une 

formation collégiale tandis que le CMR situé à Kingston, en Ontario, leur 

offre une formation universitaire » 96 . Les étudiants du CMRSJ terminent 

92 

Voir l’allocution du ministre de la Défense nationale à Saint-Jean, Réouverture du 

Collège militaire royal de Saint-Jean, 19 juillet 2007, (Cette allocution était disponible 

en ligne jusqu’en juillet 2012 : Défense nationale et les Forces canadiennes 

http://www.comfec-cefcom.forces.gc.ca/pa-ap/nr-sp/doc-fra.asp?id=2395 [Allocution] ; 

voir aussi « Reprendre le galon », Radio Canada (19 juillet 2007) en ligne : 

Radiocanada.ca . L’honorable Gordon O’connor a été élu pour la 

première fois à la Chambre des communes en 2004, puis réélu en 2006, en 2008 et en 

2011. Il a été nommé ministre de la Défense nationale en 2006, ministre du Revenu 

national en 2007 et ministre d’État et whip en chef du gouvernement en 2008. 

93 

Programmes d’études, en ligne : Collège militaire royal de Saint-Jean . 

94 

Allocution, supra note 92. 

95 

Débats du Sénat, 39 e parl, 2 e sess, vol 144, n o 14 (21 novembre 2007) à 14 h 05 

(l’honorable Roméo Antonius Dallaire). Il ajouta : « [j]’espère que sa réouverture ne sera 

pas artificielle, ce qui semble être en train de se produire ». L’honorable Roméo Dallaire a 

connu une carrière distinguée dans les Forces armées canadiennes et occupait le pose 

de lieutenant-général. Il a écrit un livre (J’ai serré la main du diable : La faillite de 

l’humanité au Rwanda, Libre Expression, 2003) décrivant ses expériences au Rwanda 

pendant les années 1990s. Il a reçu officier de l’Ordre du Canada en 2002 et a été 

nommé au Sénat du Canada sur l’avis du très honorable premier ministre Paul Martin 

en 2005. 

96 

Défense nationale, Études, en ligne : Collège militaire royal de Saint-Jean < 

http://www.cmrsj-rmcsj.forces.gc.ca/comp-comp/etu-stu/etu-stu-fra.asp>.

Taxonomie 91 

normalement leurs études universitaires au CMR 97 . En pratique, le CMR 

est la seule institution fédérale en mesure d’octroyer des diplômes 

universitaires 98 . 

2. Le statut juridique du français dans les collèges militaires 

La structure administrative et le mode de fonctionnement du CMR et 

du CMRSJ sont prévus dans les Ordonnances et Règlements royaux applicables 

aux Collèges militaires du Canada (« OR Colmilcan ») 99 . Ceux-ci ont été pris en 

vertu de la Loi sur la défense nationale 100 . 

Le paragraphe 2.02(2) des OR Colmilcan énonce les objectifs des 

collèges militaires du Canada. Ils doivent notamment former des élèvesofficiers 

« en leur offrant une formation universitaire dans les deux langues 

et un choix de disciplines assez vaste pour répondre aux exigences 

particulières des Forces canadiennes » [nous soulignons] 101 . Les collèges 

militaires du Canada doivent aussi amener les élevés-officiers à « s’exprimer 

dans les deux langues officielles et à comprendre les principes du biculturalisme » 102 . 

Le paragraphe 3.02(1) des OR Colmilcan est particulièrement saillant. Cette 

disposition traite de la proportionnalité linguistique : 

97 

Ibid. 

98 

Le CMR peut octroyer des diplômes universitaires en vertu du Royal Military College of 

Canada Degrees Act, supra note 75. Le ministre de la Défense nationale est également 

autorisé à effectuer le transfert d’épitoges aux personnes à qui le CMR confère des 

grades honorifiques, en vertu du Décret sur le transfert d’épitoges du Royal Military College 

of Canada, CRC, c 736. En vertu de la Loi sur le Collège militaire royal de Saint-Jean, supra 

note 77, le Sénat du CMRSJ est autorisé à décerner des grades, diplômes ou certificats 

universitaires aux membres des Forces canadiennes et des grades honorifiques. 

Toutefois, le CMRSJ, ne constitue plus un établissement universitaire au sens de la 

Loi sur les établissements d’enseignement de niveau universitaire LRQ, c E-14.1. 

99 

Ordonnances et Règlements royaux applicables aux Collèges militaires du Canada, approuvés 

par le Conseil du Trésor 829184 du 29 août 2001 et en vigueur le 1 er septembre 2001, 

constituant l’appendice 6.1 des Ordonnances et règlements royaux applicables aux Forces 

canadiennes [OR Colmilcan]. 

100 

LRC, 1985, c N-5, art 47(2) : « Les établissements visés au paragraphe (1) sont régis et 

administrés selon les modalités fixées par le ministre ». 

101 

OR Colmilcan, supra note 99, art 2.02(2)(a)(i). De plus, l’art 2.02(2)(b) précise que les 

collèges militaires du Canada ont pour objectif « d’améliorer, en certains domaines 

appropriés, le niveau d’instruction d’étudiants qui sont des officiers brevets des Forces 

canadiennes, en leur offrant des cours universitaires de 1er et de 2e cycle, dans les deux langues 

officielles ». 

102 

OR Colmilcan, supra note 99,art 2.02(2)(a)(iii).


3.02(1) Les candidats sont choisis au 

mérite en tenant compte du fait que 

chez les élèves-officiers, il est 

souhaitable de maintenir une 

proportion représentative entre 

anglophones et francophones et que, 

d’autre part, il ne doit pas y avoir plus 

de quinze pour cent d’élèves-officiers 

provenant de la Force de réserve [nous 

soulignons] 103 . 

3.02(1) Eligible candidates shall be 

considered for selection in order of 

merit having due regard to the 

desirability of maintaining a 

representative balance between 

anglophone and francophone cadets, 

but only fifteen per cent may be cadets 

of the Reserve Force. 

Les prix d’excellence académique doivent aussi être décernés en 

respectant le principe de la dualité linguistique 104 . Une importance 

particulière est également accordée à l’enseignement de la langue 

seconde 105 . 

Bien que les tribunaux ne se soient jamais prononcés sur le statut 

juridique du français dans les collèges militaires, il est néanmoins possible 

de faire quelques constats. D’abord, les collèges militaires sont 

vraisemblablement des institutions visées par l’article 20 de la Charte 

canadienne 106 . Dans la mesure où leurs programmes et leurs services ne sont 

pas de qualité égale dans les deux langues officielles, il serait sans doute 

possible de demander une réparation convenable et juste aux termes du 

paragraphe 24(1) de la Charte canadienne 107 . Il est également vraisemblable 

que les collèges militaires du Canada soient visés par le paragraphe 16(1) 

de la Charte canadienne, qui accorde au français un statut et des droits et 

privilèges égaux à l’anglais quant à son usage dans les institutions 

fédérales 108 . 

Ensuite, le CMR et le CMRSJ sont également des « institutions 

fédérales » au sens de la Loi sur les langues officielles 109 . Ainsi, il incombe aux 

deux collèges de veiller à ce que le public puisse communiquer avec ces 

collèges et en recevoir des services dans l’une ou l’autre des langues 

103 

Ibid, art 3.02(1). 

104 

Ibid, art 5.06(1). 

105 

Ibid, art 2.84. 

106 

Charte canadienne, supra note 11, art 20(1). 

107 

Ibid, art 24(1) ; voir généralement Doucet-Boudreau c Nouvelle-Écosse (Ministre de 

l’Éducation), [2003] 3 RCS 3. 

108 


109 

LLO, supra note 56 art 3.

Taxonomie 93 

officielles 110 . Ces deux collèges doivent donc offrir des services de qualité 

égale dans les deux langues 111 . Ces institutions sont également tenues de 

veiller à ce que soient prises des mesures positives pour mettre en œuvre 

l’engagement de favoriser l’épanouissement des minorités francophones et 

anglophones du Canada et à appuyer leur développement, ainsi qu’à 

promouvoir la pleine reconnaissance et l’usage du français et de l’anglais 

dans la société canadienne 112 . Les manquements à la LLO peuvent faire 

l’objet de plaintes, d’enquêtes par le Commissaire aux langues officielles 

du Canada et peuvent fonder des demandes devant la Cour fédérale 113 . 

Toutefois, il existe un écart important entre le statut juridique du 

français dans les collèges militaires et la réalité dans ces institutions. Tel 

que le démontre la fermeture du CMRSJ en 1995, l’enseignement 

postsecondaire en français peut être réduit de façon radicale. Or, pour 

aussi longtemps que le gouvernement fédéral offrira des programmes de 

formation collégiale et universitaire, les institutions créées à cette fin 

devront rencontrer dans la prestation de leurs programmes et leurs 

services, les normes applicables aux langues officielles fédérales. 

C. Conclusion sur les institutions de la Catégorie 1 

Certaines institutions postsecondaires offrant des programmes et des 

services en français à l’extérieur du Québec bénéficient d’une protection 

constitutionnelle 114 . Elles sont également protégées sans équivoque par des 

lois quasi-constitutionnelles. 

D’autres institutions postsecondaires bénéficient peut-être d’une 

protection aussi solide. Par exemple, il existe à Yellowknife, un collège 

homogène de langue française, qui s’appelle le Collège Nordique 

Francophone 115 . Il existe également aux Territoires du Nord-Ouest, un 

110 

Ibid, art 22. 

111 

Voir DesRochers c Canada (Industrie), [2009] 1 RCS 194 ; voir aussi Canada, PL S-220, 

Loi modifiant la loi sur les langues officielles, 3e sess, 40e parl, 2010, art 23.1(1). 

112 

LLO, supra note 56, art 41. 

113 

Ibid, art 77. Voir généralement Mark C Power et Justine Mageau, « Réflexions sur le 

rôle du Commissaire aux langues officielles devant les tribunaux » (2011) 41 RGD 

179. 

114 

L’Université de Moncton, le CCNB, le CMR et le CMRSJ. 

115 

Voir généralement en ligne : Collège nordique francophone . 

Le collège offre des cours postsecondaires en partenariat avec le 

Collège Éducacentre de la Colombie-Britannique. Son prédécesseur, le Collège des


collège de langue anglaise qui est tenu aux termes de la Loi sur les langues 

officielles 116 de ce territoire, d’offrir des services en français 117 . Les tribunaux 

n’ont toujours pas déterminé si les paragraphes 16(1) et 20(1) de la Charte 

canadienne s’appliquent directement aux institutions des Territoires du 

Nord-Ouest, du Yukon et du Nunavut. Il est permis d’espérer que le 

français bénéficiera un jour d’un statut constitutionnel devant les 

institutions postsecondaires de ces juridictions 118 . 

Les institutions postsecondaires dont il a été question dans cette partie 

se distinguent donc aisément de celles qui font l’objet de l’analyse cidessous. 

Territoires du Nord-Ouest a cessé ses activités le 26 janvier 2012 (voir : Charles- 

Antoine Bélais, « Collège des TNO : À qui la faute ? » (2 février 2012), en ligne : 

l’Aquilon ; voir aussi Charles-Antoine Bélair, « Collège nordique francophone : 

Renouveau » (18 mai 2012), en ligne : franco.ca ). Sur le plan 

postsecondaire, le Collège des Territoires du Nord-Ouest offrait des programmes 

collégiaux à distance par le biais de partenariats avec d’autres institutions 

postsecondaires. Selon la direction du Collège, en 2011, le Collège des Territoires du 

Nord-Ouest comptait environ 60 étudiants inscrits à ses programmes collégiaux. Le 

Collège n’avait pas ses propres programmes collégiaux accrédités. Le Collège offrait 

également des cours de langues secondes à la population des Territoires du Nord- 

Ouest. Il semble également que le Service d’orientation et formation des adultes 

(SOFA) au Yukon offre certains programmes et services postsecondaires en français 

(voir généralement, en ligne : ). 

116 

Loi sur les langues officielles, LRTN-O 1988, c O-1. 

117 

Aurora College est tenu d’offrir des services en français en vertu du Règlement sur les 

institutions gouvernementales, Règl des TN-O 082-2006 pris en vertu de la Loi sur les 

langues officielles, LRTN-O 1988, c O-1. Voir généralement, concernant la mise en 

œuvre de la Loi sur les langues officielles des Territoires du Nord-Ouest l’affaire 

Fédération franco-ténoise c Procureure générale du Canada, 2006 NWTSC 20 (Canlii) [FFT 

c Canada]. 

118 

Ibid, aux para 53-155.

Taxonomie 95 

IV. CATÉGORIE 2 : LES INSTITUTIONS POSTSECONDAIRES OÙ 

LE STATUT DU FRANÇAIS JOUIT D’UNE PROTECTION NON 

CONSTITUTIONNELLE 

Le statut du français dans plusieurs institutions postsecondaires 

offrant des programmes et des services en français n’est pas protégé par la 

Constitution et n’est presque pas protégé du tout sur le plan juridique. 

Certaines de ces institutions sont recensées ici. Aux institutions de la 

Catégorie 2, le statut du français – s’il en est – découle soit d’une loi 

habilitante, d’un règlement interne, d’une simple politique, dèune entente 

ou de leur effet combiné. Il semble que les institutions dont le statut du 

français est le moins bien protégé sur le plan juridique soient surtout celles 

qui sont en train de s’angliciser. 

A. L’Université de Saint-Boniface 119 

L’institution postsecondaire de langue française manitobaine que l’on 

appelle aujourd’hui l’Université de Saint-Boniface a été fondée par l’abbé 

Norbert Provencher 120 en 1818 121 . Il semble que cette institution était le 

tout premier établissement d’enseignement dans l’Ouest canadien 122 . Au 

long du 19 e siècle, elle se transforme d’une résidence où le latin est 

enseigné aux garçons de la colonie de la Rivière-Rouge en un collège 

119 

Selon le bureau du registraire de l’Université de Saint Boniface, environ 1 200 

étudiants étaient inscrits en date du 5 octobre 2011. Les résultats de l’exercice 

financier terminé le 31 mars 2011 démontrent des revenus de presque 40 000 000 $. 

En 2010, les revenus du l’institution totalisaient près de 30 000 000 $ (Collège 

universitaire de Saint-Boniface, États financiers, pour l’exercice terminé le 31 mars 

2011, en ligne : ). 

120 

Joseph-Norbert Provencher était un prêtre catholique, évêque et homme politique, né 

le 12 février 1787 à Nicolet, Québec. Il se rend dans la colonie de la Rivière-Rouge 

(Manitoba) pour y répandre la religion catholique. L’éducation des jeunes est un des 

objectifs privilégiés chez les évangélisateurs et Provencher a commencé l’instruction 

des jeunes à Saint-Boniface peu de temps après son arrivée. Voir généralement le 

Dictionnaire biographique du Canada, en ligne : . 

121 

Loi sur l’Université de Saint-Boniface, LM 2011, c 16, préambule [Loi sur l’Université de 

Saint-Boniface] ; voir aussi Bref historique, en ligne : Université de Saint-Boniface 

[Bref historique]. 

122 

Ibid.


offrant un enseignement classique 123 . Le Collège de Saint-Boniface a été 

incorporé en 1871, suivant l’adoption d’une loi à cet effet par l’Assemblée 

législative de la nouvelle province du Manitoba 124 . À l’époque, plus de la 

moitié des gens qui habitaient le vaste territoire exploité pas la Compagnie 

de la Baie d’Hudson s’exprimaient en français 125 . La création d’une 

institution éducative homogène de langue française découlait 

naturellement du bilinguisme judiciaire et législatif garanti par la 

Constitution dans la nouvelle province, ainsi que de la dualité linguistique 

dans cette société, notamment sur le plan de l’éducation primaire et 

secondaire 126 . 

L’institution maintien l’appellation « Collège Saint-Boniface » 

jusqu’en 2005. Le collège sera renommé « Collège universitaire de Saint- 

Boniface » en 2005 par la Loi sur le Collège universitaire de Saint-Boniface 127 . 

Le mandat législatif du collège universitaire était de « répondre aux besoins 

éducatifs des collectivités francophones du Manitoba et du Canada et de 

favoriser leur mieux-être sur les plans linguistique, culturel, économique et 

social » [nous soulignons] 128 . Le collège universitaire était donc mandaté 

d’offrir « une vaste gamme de possibilités en matière d’éducation » 129 et ce, 

en français. Le collège universitaire n’était pas toutefois indépendant, 

étant affilié à l’Université du Manitoba. 130 Le législateur prévoyait la 

possibilité que le collège universitaire conclût des accords avec des 

universités au Canada qui offrent « des programmes essentiellement en 

123 

Ibid. 

124 

An Act to Incorporate the St. Boniface College, LM 1871, c 40 ; voir aussi Loi sur 

l’Université de Saint-Boniface, supra note 121, préambule et Bref historique, supra note 

121. La province du Manitoba est créée le 12 mai 1870 par la Loi de 1870 sur le 

Manitoba, SC 1870, c 3 [Loi de 1870]. 

125 

Voir R c Caron, 2008 ABPC 232 aux para 77-91, 322 et 389. 

126 

Loi de 1870, supra note 124, art 22-23. 

127 

Loi sur le Collège universitaire de Saint-Boniface, LM 2005, c 13, CPLM c C150.2 [Loi sur 

le Collège universitaire de Saint-Boniface]. 

128 

Ibid, art 1.1. Le collège universitaire était investi d’un mandat national qui n’était pas 

limité par les frontières de la province. 

129 

Ibid. 

130 

Ibid, art 1.2. L’affiliation à l’Université du Manitoba pouvait parfois avoir pour effet 

de diluer le caractère francophone du Collège universitaire de Saint-Boniface. Par 

exemple il est intéressant de noter que l’art 64 de la Loi sur l’Université du Manitoba, 

LM 199 c 19, CPLM c U60, prévoit que : « [l]e candidat à un examen pour l’obtention 

d’un grade que décerne l’Université peut y répondre en français ou en anglais ».

Taxonomie 97 

français afin de permettre à ses étudiants d’obtenir des crédits à l’égard 

d’un cours ou d’un programme menant à l’obtention d’un grade que 

décerne cet établissement ». 131 

Le collège universitaire est devenu l’Université de Saint-Boniface en 

2011 avec l’adoption de la Loi sur l’Université de Saint-Boniface. 132 Cette loi 

accorde au français un statut officiel au sein de l’institution et paraît exiger 

que cette institution soit homogène de langue française. Par exemple, elle 

fait du français la langue de travail de l’université 133 et prévoit que les 

étudiants doivent être évalués en français. 134 

L’Université de Saint-Boniface doit assurer « la formation et le 

développement personnels et sociétaux, en français, dans tous les champs 

d’activité, sur les plans intellectuel, social, culturel, éducatif et physique » 

[nous soulignons]. 135 Par ailleurs, l’université doit aussi assurer « le mieuxêtre 

et le développement linguistiques, culturels, sociaux, économiques et 

éducatifs de ses étudiants et employés ainsi que de la collectivité 

francophone ». 136 

Le préambule de la Loi sur l’Université de Saint-Boniface reconnaît que 

l’institution est le seul établissement d’enseignement postsecondaire 

francophone au Manitoba et qu’elle « joue un rôle de premier plan dans la 

croissance et le développement linguistique, culturel, social et 

131 

Loi sur le Collège universitaire de Saint-Boniface, supra, note 127, art 6.1(1). Par exemple, 

« [d]ans le but de poursuivre et de développer, au moyen de leurs ressources d’enseignement et de 

recherche, la collaboration entre les deux établissements, le Collège et l’Université Laval ont 

signé un accord-cadre le 13 juin 1996 et l’ont prolongé pour une période de cinq ans à partir du 

25 avril 2002 » (Rapport à la collectivité 2003-2004, en ligne : 

aux pp 3-4). 

132 

Loi sur l’Université de Saint-Boniface, supra note 121. 

133 

Ibid, art 27(1) : « Le français est la langue de travail de l’Université ». 

134 

Ibid, art 27(2) : « Les candidats aux examens menant à l’obtention d’un grade, d’un certificat 

ou d’un diplôme que décerne l’Université doivent passer les examens en français, à moins que le 

Sénat ne permette le contraire ». Il est aussi à noter que selon l’article 26(2), la vérification 

des comptes se fait en français. 

135 

Ibid, art 3(b). 

136 

Ibid, art 3(c). Il est intéressant de souligner que le Règlement sur l’aide aux étudiants en 

langue minoritaire officielle, Règl du Man 164/2003, art 2(1), pris en vertu de la Loi sur 

l’administration scolaire, CPLM c E10 permet au ministre d’accorder une bourse à un 

étudiant à temps plein qui est inscrit ou qui rempli les conditions d’inscription à un 

programme d’études approuvé offert dans un établissement postsecondaire agréé où 

l’enseignement se fait soit en français, soit en français et en anglais et qui est situé au 

Canada.


économique de la collectivité d’expression française de la province ». 137 De 

plus, « la province estime qu’il est important de favoriser le développement 

et l’essor de la collectivité francophone ». 138 À cette fin il est prévu que le 

bureau des gouverneurs de l’institution miroite plusieurs volets de la 

communauté francophone du Manitoba : 

6(2) Le bureau est constitué : 

a) du recteur de l’Université ; 

b) de deux membres nommés par 

la Société franco-manitobaine ; 

c) de deux membres nommés par 

l’archidiocèse de Saint-Boniface ; 

d) de deux membres du sénat élus 

par lui ; 

e) de deux membres nommés par 

lui conformément à ses 

règlements administratifs ; 

f) d’un membre nommé ou élu 

par l’association des étudiants 

de l’Université ; 

g) de cinq membres nommés par 

le lieutenant-gouverneur en 

conseil, l’un d’eux étant étudiant 

[nous soulignons]. 139 

6(2) The board is to consist of 

(a) the president of the university; 

(b) two members appointed by the 

Société franco-manitobaine; 

(c) two members appointed by the 

Archdiocese of Saint Boniface; 

(d) two members of the senate 

elected by the senate; 

(e) two members appointed by the 

board in accordance with its bylaws; 

(f) one member elected or 

appointed by the students’ 

association of the university; and 

(g) five members appointed by the 

Lieutenant Governor in Council, 

one of whom must be a student. 

L’Université de Saint-Boniface demeure affiliée à l’Université du 

Manitoba, 140 mais le législateur autorise désormais son bureau des 

gouverneurs à établir des affiliations avec d’autres institutions 

postsecondaires. L’Université est investie de vastes pouvoirs académiques 

lui permettant notamment « d’offrir de l’enseignement et de la formation 

collégiales et universitaires dans tous les domaines de connaissances ». 141 

137 

Loi sur l’Université de Saint-Boniface, supra note 121, préambule. 

138 

Ibid. 

139 

Ibid, art 6(2) ; voir aussi la Loi sur le Collège universitaire de Saint-Boniface, supra, note 

127, art 2.1(2) : « [a]u moment de la nomination des membres visés à l’alinéa (1)b) [au conseil 

de la corporation], le lieutenant-gouverneur en conseil tient compte du caractère francophone de 

la Corporation ». 

140 

Loi sur l’Université de Saint-Boniface, supra note 121, art 5(1). Selon le Commissaire aux 

services en français de l’Ontario « l’affiliation productive et avant-gardiste de l’Université de 

Saint-Boniface à l’Université du Manitoba offre des leçons clés sur lesquelles l’Ontario peut se 

baser pour planifier et développer les politiques en matière d’éducation postsecondaire en langue 

française » (Rapport CSF, supra note 13 à la p 52). 

141 

Ibid, art 4(1)b). L’École technique et professionnelle de l’Université de Saint-Boniface

Taxonomie 99 

Le statut du français au sein de l’Université de Saint-Boniface est 

beaucoup plus certain et mieux consacré que dans certaines institutions 

postsecondaires offrant des programmes et des services postsecondaires en 

français n’ayant pas modernisé leur loi habilitante et leurs statuts et 

directives internes. 

B. L’Université Sainte-Anne 142 et le Collège de l’Acadie 

L’Université Sainte-Anne à Pointe-de-l’Église en Nouvelle-Écosse est 

une institution postsecondaire qui offre des programmes et des services en 

français. Son histoire débuta en 1890 lorsque le père Gustave Blanche 143 

fonda un collège à Pointe-de-l’Église appelé le Collège Sainte-Anne 144 . 

L’institution fut incorporée en université en 1892, ce qui lui permit 

d’octroyer des baccalauréats, des maîtrises et des doctorats 145 . L’institution 

devient laïque en 1971 146 et prit le nom de « Université Sainte-Anne » en 

1977 147 . 

offre les programmes collégiaux suivants : diplôme en administration des affaires, 

diplôme en gestion du tourisme, diplôme en communication multimédia, diplôme en 

informatique, 3 programmes de certificat Webmestre, certificat d’aide en soins de 

santé, diplôme en éducation de la jeune enfance, diplôme avancé en leadership pour 

la jeune enfance, diplôme en science infirmières, baccalauréat en science infirmières et 

un diplôme en soins infirmiers auxiliaires. 

142 

Selon le bureau des admissions de l’Université Sante-Anne, près de 400 étudiants 

étaient inscrits à temps plein et plus de 60 étudiants étaient inscrits à temps partiels en 

date du 1 er octobre 2011. 

143 

Né en 1848, au cœur de la Bretagne, Gustave Blanche était un soldat dans la guerre 

franco-prussienne. Plus tard, il poursuit des études en droit avant d’entrer finalement 

au noviciat en 1873 (René LeBlanc et Micheline Laliberté, Sainte-Anne : collège et 

université, 1890-1990, Pointe-de-l’Église (N-É), Chaire d’étude en civilisation acadienne 

de la Nouvelle-Écosse, Université Sainte-Anne, 1990 à la p 32 [LeBlanc]). 

144 

Voir généralement LeBlanc,,ibid ; voir aussi Léopold LaPlante, Chronique du Collège 

Sainte-Anne : les Pères Eudistes au service de l’église et de la communauté, Yarmouth (N-É), 

Imprimerie L’Escarbot, 1986. 

145 

An Act to incorporate the Directors of Sainte Anne’s College Church Point, and to enable them 

to confer degrees, SNS 1892, c 135, art 5. 

146 

Voir Leblanc, supra note 143 aux pp 373-396. 

147 

Loi concernant l’Université Sainte-Anne, SNS 1977, c 106. Un communiqué diffusé à la 

suite de l’adoption de cette loi résume que « [s]ous sa nouvelle appellation, 

l’Université Sainte-Anne veut refléter publiquement une image conforme à son 

mandat auprès de la population néo-écossaise et canadienne » (Leblanc, supra note 143 

à la p 427).


Il existe un collège d’arts appliqués et de technologie de langue 

française en Nouvelle-Écosse depuis 1988 148 . De 1995 jusqu’en 2003, le 

Collège de l’Acadie était: 

responsible for enhancing the economic and social well-being of the Province by 

meeting the occupational training requirements of the Acadian and francophone 

population 149 and the labour market of the Province 150 . 

L’Université Sainte-Anne et le Collège de l’Acadie forment une seule 

institution depuis 2003, nommée l’Université Sainte-Anne 151 . Cette 

institution offre des programmes universitaires et collégiaux depuis cinq 

148 

Le Commissaire aux langues officielles explique dans son rapport de 1989 que « [c]’est 

à Meteghan [Nouvelle-Écosse] que les gouvernements du Canada et de la Nouvelle-Écosse ont 

annoncé en août la signature d’un accord visant à établir au sein de la province le ‘Collège de 

l’Acadie’. Aux termes de cette entente, le gouvernement fédéral assumera la moitié des frais 

d’établissement. Le collège servira l’ensemble de la population francophone de la province » 

(Canada, Commissariat aux langues officielles, Rapport Annuel 1988, Ottawa, Ministre 

des Approvisionnements et Services Canada, 1989 à la p 255). 

149 

Le Collège de l’Acadie a établi en 1995, un campus à Wellington sur l’Île-du-Prince- 

Édouard. Il était prévu à l’alinéa 8(1)(d) de la Community colleges Act, SNS 1995-96, c 4 

(tel que la loi se lisait entre le 7 janvier 1997 et le 22 janvier 2003) qu’une personne 

nommée par le ministère de l’Enseignement supérieur et de la Formation des adultes 

de l’Île-du-Prince-Édouard siège au conseil des gouverneurs du collège. En 2003, au 

moment de la fusion du Collège de l’Acadie et de l’Université de Sainte-Anne, 

l’Assemblée législative de la Nouvelle-Écosse avait prévue qu’une personne nommée 

par le ministre de l’Éducation de l’Île-du-Prince-Édouard continuerait de siéger au 

conseil des gouverneurs de l’Université Sainte-Anne. Après la fusion, le Collège de 

l’Acadie de l’Île-du-Prince-Édouard a continué d’opérer à Wellington jusqu’en 2006, 

moment auquel le partenariat institutionnel avec l’Université Sainte-Anne tire à sa 

fin. En 2008, le Collège de l’Acadie de l’Île-du-Prince-Édouard signe une entente avec 

le gouvernement de l’Île-du-Prince-Édouard lui conférant le statut d’établissement 

d’enseignement postsecondaire subventionné. 

150 

Community Colleges Act, SNS 1995-96, c 4, art 4, tel que la loi se lisait entre le 7 janvier 

1997 et le 22 janvier 2003. 

151 

Loi sur l’Université Sainte-Anne – Collège de l’Acadie, SNS 2002 c 31, art 3 [Loi sur 

l’Université Sainte-Anne]: « L’Université Sainte-Anne, personne morale reconnue par la Loi de 

l’Université Sainte-Anne, et le Collège de l’Acadie, personne morale reconnue par la loi intitulée 

Community Colleges Act, sont regroupés et maintenus en existence en une personne morale 

relevant d’un conseil des gouverneurs unique et dénommée Université Sainte-Anne » ; voir 

également les articles 4(2) et 4(3). Il existe une version française et anglaise de cette loi, 

l’Assemblée législative ayant prévue que les deux versions ont chacune force de loi (art 

16).

Taxonomie 101 

campus 152 et est régie par la Loi sur l’Université Sainte-Anne - Collège de 

l’Acadie 153 . Cette loi fait du français la langue officielle de l’institution : 

Langues d’administration 

5 (1) Sous réserve du paragraphe 

(2), le français est la langue 

d’administration et de 

fonctionnement de l’Université- 

Collège 

(2) Au besoin, l’Université-Collège 

utilise la langue anglaise 154 . 

La loi impose le devoir suivant : 

Responsabilité, droits, pouvoirs et 

privilèges 

4 (1) L’Université-Collège est un 

établissement postsecondaire dont la 

responsabilité première est de 

promouvoir le bien-être économique 

et social de la population acadienne 

et francophone en offrant des 

programmes d’études complets de 

niveau postsecondaire, ainsi que des 

services de formation professionnelle 

et technique, d’éducation de base 

aux adultes et d’éducation 

permanente et des services connexes 


Language of administration 

5 (1) Subject to subsection (2), the 

language of administration and 

operation of the Université- 

Collège shall be French. 

(2) When the circumstances 

warrant the use of English, the 

Université-Collège shall use 

English. 

Responsibility, rights, powers 

and privileges 

4 (1) The Université-Collège is a 

post-secondary institution and is 

primarily responsible for 

enhancing the economic and 

social well-being of the Acadian 

and francophone population by 

providing comprehensive courses 

of study for post-secondary 

education, professional and 

technical training, adult basic 

education, continuing education 

and related services. 

Il s’agit là d’un mandat législatif plus précis que celui de l’Université 

d’Ottawa, qui sera examiné plus tard. En effet, l’institution que forment 

l’Université Sainte-Anne et le Collègue de l’Acadie est tenue de 

promouvoir le bien-être de la population acadienne et francophone. Le 

législateur a pris soin de ne pas limiter la mission de l’institution au seul 

territoire de la Nouvelle-Écosse. Le mandat de l’institution est bien adapté 

à la réalité des communautés acadiennes et francophones de l’Amérique 

152 

Le campus principal est situé à Pointe-de-l’Église. Les autres campus sont situés à 

Halifax, à Tusket, à Petit-de-Grat et à Saint-Joseph-du-Moine. 

153 

Loi sur l’Université Sainte-Anne, supra note 151. 

154 

Ibid, art 5. 

155 

Ibid, art 4(1).


du Nord, qui sont dispersées et dont la pérennité est souvent frustrée par 

des frontières administratives ou politiques qui ne reflètent pas leu 

histoire ni leurs besoins ou réalités. Ceci se reflète par ailleurs dans la 

composition du Conseil des gouverneurs de l’université, qui comprend 

une personne nommée par le ministre de l’Éducation de l’Île-du-Prince- 

Édouard 156 . Le rôle joué par l’Université Sainte-Anne vis-à-vis des 

communautés acadiennes ailleurs qu’en Nouvelle-Écosse est également 

illustré par ses nombreuses ententes interuniversitaires 157 . 

C. Les collèges d’arts appliqués et de technologie homogènes 

de langue française de l’Ontario 

Le gouvernement de l’Ontario a créé trois collèges d’arts appliqués et 

de technologie homogènes de langue française pendant les années 1990 158 . 

Le gouvernement donnait ainsi suite aux rapports de la Commission 

consultative sur les services collégiaux en français dans le Nord de l’Ontario 159 et 

de la Commission consultative sur les services collégiaux en français dans le 

Centre/Sud-Ouest de l’Ontario 160 qui recommandaient la création d’un 

156 

Loi sur l’Université Sainte-Anne, supra note 151, art 6(1)(g). Le site web de l’Université 

Sainte-Anne indique toutefois, qu’il n’y a personne nommé par le ministre de 

l’Éducation de l’Île-du-Prince-Édouard qui siège au Bureau des gouverneurs (voir 

Direction/Gouvernance, en ligne : Université Sainte-Anne ). 

157 

Voir par ex l’entente avec Acadia University, l’offre de programmes avec le Collège 

communautaire du Nouveau-Brunswick, l’entente avec l’Université de Moncton, 

l’entente avec l’Université Laurentienne, l’entente avec Memorial University of 

Newfoundland, l’accord de coopération avec l’Université de Louisiane- 

Lafayette, l’entente avec l’Institut catholique d’études supérieures (ICES, La Rochesur-Yon, 

France) et l’accord de coopération avec les Centres de formation 

pédagogique l’Aubépine (La Roche-sur-Yon et Brest, France) (Ententes Interuniversitaires, 

en ligne : Université Sainte-Anne ). 

158 

Gouvernement de l’Ontario, L’historique des services en français en Ontario, en ligne : 

Office des affaires francophones 

[L’historique des services en français en Ontario]. 

159 

Rapport de la Commission consultative sur les services collégiaux en français dans le Nord de 

l’Ontario, Toronto (Ontario), le 15 octobre 1990 (Président : Jean-Louis Boudreau) 

[Rapport du Nord de l’Ontario]. Le Rapport du Nord de l’Ontario recommanda « [q]u’un 

collège autonome de langue française soit créé dans le Nord de l’Ontario dans les plus 

brefs délais » (ibid à la p 69). 

160 

Rapport de la Commission consultative sur les services collégiaux en français dans le

Taxonomie 103 

collège de langue française dans le Nord de la province et la création d’un 

collège de langue française pour desservir le Centre et le Sud-Ouest de 

l’Ontario, l’Est ontarien étant déjà desservi par un tel collège. La décision 

de créer ces collèges homogènes de langue française s’inscrivait dans la 

tendance favorisant la création d’institutions homogènes pour les 

CLOSM. En effet, la Cour suprême du Canada venait tout juste de 

reconnaître pendant la même année que : 

les minorités linguistiques ne peuvent pas être toujours certaines que la majorité 

tiendra compte de toutes leurs préoccupations linguistiques et culturelles. Cette 

carence n’est pas nécessairement intentionnelle : on ne peut attendre de la 

majorité qu’elle comprenne et évalue les diverses façons dont les méthodes 

d’instruction peuvent influer sur la langue et la culture de la minorité 161 . 

Jusqu’alors, ce sont les collèges d’arts appliqués et de technologies de 

langue anglaise ou bilingues qui offraient quelques programmes et services 

en français. 

Créé en 1993, le Collège Boréal 162 est le collège d’arts appliqués et de 

technologie de langue française qui dessert le Nord de l’Ontario 163 . Depuis 

2002, il offre aussi des programmes et des services dans le Centre et le 

Sud-Ouest de la province 164 . La Cité collégiale 165 , quant à elle, ouvre ses 

Centre/Sud-Ouest de l’Ontario, Toronto (Ontario), le 15 octobre 1990 (Président : Jean- 

Louis Boudreau) [Rapport du Centre/Sud-Ouest]. Le Rapport du Centre/Sud-Ouest 

recommanda « qu’un collège de langue française soit créer pour desservir le Centre et 

le Sud-Ouest de l’Ontario dès septembre 1992 » (voir ibid à la p 53). La Cité collégiale 

avait déjà été créée plus tôt en 1990. 

161 

Voir Mahé, supra note 12 à la p 372 (le juge en chef Dickson). Cet article ne prend pas 

position sur la question de savoir si seul le modèle homogène de langue française 

permet d’assurer le maintien ou la pérennité de programmes et de services 

postsecondaires de langue française. 

162 

Le Collège Boréal comptait plus de 1 300 étudiants inscrits à temps plein en automne 

2011. Pendant l’année 2010-2011 le collège avait des revenus plus de 66 700 000 $ 

(Collège Boréal, Rapport annuel 2010-2011, en ligne : ). 

163 

Son campus principal est situé à Sudbury, mais le Collège Boréal offre également des 

programmes et des services à Hearst, à Kapuskasing, à New Liskeard, à Sturgeon Falls 

(Nipissing Ouest), à Timmins et à Toronto (Collège Boréal, Emplacements – Campus, 

en ligne : ). 

164 

Ibid. Voir notamment Rapport CSF, supra, note 13 concernant l’offre d’éducation 

postsecondaire en français dans le Centre-Sud-Ouest de l’Ontario. Selon le Rapport 

CSF, « les francophones de la région [du Centre-Sud-Ouest] n’ont qu’un taux d’accès de 3 % aux


portes en 1990 166 . Son campus principal à Ottawa est inauguré en 1995 et 

la grande majorité de ses programmes sont offerts à ce campus 167 . 

La création des collèges d’arts appliqués et de technologie de langue 

française en Ontario témoigne d’un engagement de favoriser la 

progression vers l’égalité du statut et d’usage du français et de l’anglais 168 . 

Ces collèges ne sont pas constitutionnellement protégés par le paragraphe 

16(3) de la Charte 169 . Les collèges d’arts appliqués et de technologie de 

langue française de l’Ontario bénéficient néanmoins d’un statut 

particulier. Le paragraphe 2(2) de la Loi de 2002 sur les Collèges d’arts 

appliqués et de technologie de l’Ontario 170 énonce l’objet suivant : 

2(2) Les objets des collèges sont 

d’offrir un programme complet 

d’enseignement et de formation 

postsecondaires axé sur la carrière 

afin d’aider les particuliers à 

trouver et à conserver un emploi, 

de répondre aux besoins des 

employeurs et d’un milieu de 

travail en évolution et de soutenir 

le développement économique et 

social de leurs collectivités locales 

variées [nous soulignons] 171 . 

The objects of the colleges are to 

offer a comprehensive program of 

career-oriented, post-secondary 

education and training to assist 

individuals in finding and keeping 

employment, to meet the needs of 

employers and the changing work 

environment and to support the 

economic and social development 

of their local and diverse 

communities. 

programmes de premier cycle et collégiaux en français » (ibid à la p 19). 

165 

En 2009-2010, La Cité collégiale comptait près de 3 900 étudiants à temps plein et 

255 étudiants à temps partiel. Il s’agit là d’une augmentation de plus de 12 % de ses 

effectifs par rapport à l’année précédente (La Cité collégiale, Rapport annuel 2009- 

2010, en ligne : ). Pendant l’année 

financière 2010-2011, La Cité collégiale avait des revenus dépassant 84 700 000 $ 

(États financiers consolidés de La Cité collégiale - l’exercice clos le 31 mars 2011, en ligne : 

). 

166 

L’historique des services en français en Ontario, supra note 158. 

167 

Ce collège offre également des programmes et des services depuis ses campus à 

Hawkesbury, à Pembroke et dans l’Est ontarien (La Cité collégiale, Nos campus, en 

ligne : La Cité collégiale ). 

168 


169 

Lalonde, supra note 3 aux para 90-95. 

170 

LO 2002, c 8, ann F [Loi de 2002 sur les Collèges]. 

171 

Ibid, art 2(2).

Taxonomie 105 

Le libellé de cette disposition est suffisamment large pour embrasser le 

rôle essentiel que sont appelés à jouer les collèges de langue française de 

l’Ontario 172 . L’alinéa 2(3)b) de la loi prévoit qu’afin de réaliser ses objets, 

un collège peut entreprendre une gamme d’activités ayant trait à 

l’enseignement et à la formation, notamment : 

b) la possibilité d’offrir ses cours en français là où les règlements le permettent 173 . 

L’alinéa 8(1)f) de la loi prévoit que le lieutenant-gouverneur en conseil peut, par 

règlement : 

f) traiter des langues d’enseignement, y compris autoriser certains collèges à offrir tout 

ou parties de leurs programmes en français et interdire à d’autres de le faire 174 . 

Le lieutenant-gouverneur en conseil retient la dualité et l’homogénéité 

comme principes structurants du réseau collégial provincial : 

Subventions aux collèges de langue 

française 

3 (1) Sauf pour l’enseignement de 

l’anglais langue seconde, le 

versement de subventions générales 

à un collège de langue française est 

assujetti aux conditions suivantes : 

(a) les programmes et services 

offerts par le collège qui sont 

financés en tout ou en partie par 

des subventions de fonctionnement 

à des fins générales octroyées par le 

gouvernement provincial ne sont 

offerts qu’en français ; 

(b) les programmes et services 

offerts par le collège pour le compte 

du gouvernement provincial ne 

sont offerts qu’en français. 

Grants to French language 

colleges 

3 (1) It is a condition of the 

payment of legislative grants to a 

French language college that, 

except for instruction of English as 

a second language, 

(a) all programs and services 

offered by the college that are 

funded in whole or in part 

through provincial government 

general purpose operating grants 

shall be offered only in French; 

and 

(b) all programs and services 

delivered by the college on behalf 

of the provincial government shall 

be delivered only in French. 

172 

Voir aussi Larocque et al, infra note 189. 

173 

Loi de 2002 sur les Collèges, supra note 170, art 2(3)(b). 

174 

Ibid, art 8(1)(f).


(2) Sauf pour l’enseignement du 

français langue seconde, nul 

collège de langue anglaise ne peut 

offrir de programmes et de services 

en français à moins d’avoir conclu 

une entente mixte écrite avec tous 

les collèges de langue française. 

(2) No English language college 

may provide French language 

programs and services, except for 

instruction of French as a second 

language, unless the college has 

entered into a joint agreement in 

writing with all of the French 

language colleges. 

(3) Les définitions qui suivent 

s’appliquent au présent article. 

« collège de langue anglaise » Tout 

collège mentionné dans le présent 

règlement qui n’est pas un collège 

de langue française. (« English 

language college ») 

« collège de langue française» Le 

Collège d’arts appliqués et de 

technologie La Cité Collégiale ou 

le Collège Boréal d’arts appliqués 

et de technologie. [nous 


(3) In this section, 

“English language college” means 

any college named in this 

Regulation other than a French 

language college; (“collège de 

langue anglaise”) 

“French language college” means 

the college known as Collège d’arts 

appliqués et de technologie La Cité 

collégiale or the college known as 

Collège Boréal d’arts appliqués et 

de technologie. 

La réglementation prévoyant l’homogénéité linguistique dans le 

secteur collégial peut être facilement modifiée par le lieutenant-gouverneur 

en conseil. Voilà l’une des raisons pour lesquelles il était fort important 

que le Collège Boréal devienne une institution désignée au sens de la Loi 

sur les services en français 176 « à l’égard des programmes exécutés pour le 

compte du ministère de la Formation et des Collèges et Universités » 177 . La 

Cour d’appel de l’Ontario a examiné l’étendue de la protection offerte aux 

organismes et institutions désignés en tant qu’« organismes 

gouvernementaux » au sens de la LSF. Elle explique dans l’affaire Lalonde c 

Ontario (Commission de restructuration des services de santé) 178 que les 

175 

Dispositions générales, Règl de l’Ont 34/03, art 3, pris en vertu de la Loi de 2002 sur les 

Collèges, supra note 170. 

176 

LRO 1990, c F.32 [LSF]. 

177 

Désignation d’organismes offrant des services publics, Ontario, Règl de l’Ont 398/93, art 

83, pris en vertu de la LSF, supra note 176. Voir aussi Philipe Orfali, « “Il faut arrêter 

d’avoir peur”, dit le président du Collège Boréal » (22 novembre 2011) à la p 7 [Il faut 

arrêter d’avoir peur]. Voir généralement Larocque et al, infra note 189. 

178 

Lalonde supra note 3.

Taxonomie 107 

organismes désignés sont tenus de continuer d’offrir les services en 

français déjà offerts au moment de leur désignation. Les membres du 

public jouissent alors du droit corollaire de continuer de recevoir ces 

services, droit opposable non seulement à l’institution désignée, mais aussi 

au gouvernement de l’Ontario qui est tenu de continuer à financer les 

services désignés. Il est seulement possible de limiter ces obligations et ces 

droits lorsqu’il est démontré raisonnable et nécessaire aux termes de la 

LSF 179 . 

Tel qu’il a déjà été souligné, la Commission consultative sur les services 

collégiaux en français dans le Centre/Sud-Ouest de l’Ontario avait recommandé 

qu’un collège de langue française soit créé pour desservir le Centre et le 

Sud-Ouest de l’Ontario 180 . C’est la raison pour laquelle le Collège des 

Grands Lacs a vu le jour. Ce collège offrait des programmes d’arts 

appliqués et de technologie depuis son campus situé à Toronto 181 . 

Toutefois, le Collège des Grands Lacs avait des difficultés à attirer assez 

d’étudiants pour offrir des programmes et des services de qualité 182 . En 

2001, seuls 60 étudiants étaient inscrits au Collège des Grands Lacs, alors 

que plus de 3 000 étudiants à temps plein étaient inscrits à la Cité 

collégiale et plus de 1 000 étudiants à temps plein étaient inscrits au 

Collège Boréal 183 . Le ministre de la Formation et des Collèges et 

Universités a décidé de fermer le collège en raison de ses problèmes 

budgétaires, de ses faibles inscriptions et de la qualité inadéquate des 

programmes et des services offerts 184 . 

La communauté francophone ne pouvait pas invoquer la LSF dans ses 

efforts visant à protéger le Collège des Grands Lacs, car celui-ci n’avait pas 

été désigné en tant qu’organisme gouvernemental au sens de cette loi. Les 

tribunaux ayant rejeté la thèse de l’encliquetage 185 , il semble que seul le 

179 

Ibid, aux para 159-169 ; LSF, supra note 176, art 7 ; voir aussi : Mark Power et André 

Braën, « Les recours en matière de droits linguistiques » dans Michel Bastarache, dir, Les 

droits linguistiques au Canada, Cowansville (Qc), Yvon Blais, 2004, 575 à la p 654. 

180 

Rapport du Centre/Sud-Ouest, supra note 160 à la p 53. 

181 

Gigliotti, supra note 3. Le Collège des Grands Lacs offrait également des programmes 

et des services en ligne et à campus régionaux dans le Centre et Sud-Ouest de 

l’Ontario pendant son existence. 

182 

Gigliotti, supra note 3, para 9. Voir également Rapport CSF, supra note 13 aux pp 13-14. 

183 

Ibid. 

184 

Ibid, aux para 9-19. 

185 

Lalonde, supra note 3, aux para 90-95.


principe constitutionnel de la protection des minorités aurait pu protéger 

le Collège des Grands Lacs. Dans l’affaire Lalonde, la Cour d’appel de 

l’Ontario avait conclu que la décision de fermer l’Hôpital Montfort ou de 

le transformer en clinique de jour était tellement lourde de conséquences 

qu’elle faisait intervenir le principe constitutionnel de la protection des 

minorités 186 . Appelée à trancher une instance contestant la validité de la 

fermeture du Collège des Grands Lacs, la Cour divisionnaire de l’Ontario 

conclut que la preuve dont elle était saisie n’établissait pas que le Collège 

des Grands Lacs était vital à la communauté francophone au point de faire 

intervenir le principe constitutionnel de la protection des minorités 187 . Il y 

a donc lieu de s’inquiéter de la pérennité des programmes et des services 

offerts par la Cité collégiale puisqu’elle n’est pas désignée en vertu de la 

LSF 188 . Par ailleurs, même si le Collège Boréal se trouve dans une bien 

meilleure position que l’Université d’Ottawa et l’Université Laurentienne 

grâce à sa désignation en vertu de la LSF, il n’en demeure pas moins que 

cette institution postsecondaire n’est pas expressément protégée par la 

Constitution, comme c’est le cas par exemple du Collège communautaire 

du Nouveau-Brunswick. 

186 

Renvoi relatif à la sécession du Québec, [1998] 2 RCS 217 au para 49 ; voir aussi Marc 

Cousineau « Survol des droits linguistiques : enfin de vrais droits linguistiques au 

Canada » (2000-2001) 32 RD Ottawa 117. Il semble que jusqu’à maintenant, le 

principe constitutionnel n’a pas été invoqué à nouveau avec succès pour protéger une 

institution des CLOSM. Au contraire, la force normative de ce principe a été remise 

en cause : Charlebois, supra note 56 aux para 54-58 (CA) ; contra Tremblay c Lakeshore 

(Town) (2003) 179 OAC 123, [2003] OJ 249 aux para 18-19 (ON C div) et Giroux c 

Ontario (Ministre des Services aux consommateurs et aux entreprises) (2005), 75 RJO (3e) 

771, [2005] OJ 2570 au para 20 (ON C div). 

187 

Gigliotti, supra note 3, au para 49. 

188 

Il convient de noter toutefois que La Cité Collégiale a demandé au ministère de la 

Formation et des Collèges et Universités de l’Ontario la désignation en tant 

qu’organisme gouvernemental au sens de la LSF en décembre 2012 (voir notamment 

Philipe Orfali « La Cité collégiale demande la désignation » Le Droit (11 décembre 

2012), en ligne : Le Droit ).

Taxonomie 109 

D. L’Université d’Ottawa 189 

Le Collège de Bytown a été fondé en 1848 par l’évêque de Bytown, 

Monseigneur Joseph-Eugène Guigues 190 . La direction de l’institution était 

alors confiée à la Congrégation des Missionnaires Oblats de Marie 

immaculée 191 . En 1965, l’institution a subi une réorganisation majeure et 

est devenue une université laïque afin de se conformer aux exigences qui 

lui permettraient d’être subventionnée sur les fonds publics 192 . Au 

189 

En 2011, l’Université d’Ottawa comptait près de 40 000 étudiants inscrits à ses 

programmes, plus de 1 200 membres à son corps professoral régulier et des revenus de 

1 020 500 000 $ pour l’année financière 2009-2010 (Université d’Ottawa, Faits en bref 

2011, dernière version 18-10-2011, en ligne : Recherche institutionnelle et planification 

). Pour 

une analyse complète du statut juridique du français à l’Université d’Ottawa voir 

François Larocque, Mark Power, Matthew Létourneau et Joseph Morin, « Le statut du 

français à l’Université d’Ottawa et la Loi sur les services en français de l’Ontario » (2012) 

12 RCLF 55 [Larocque et al]. 

190 

Aussi connu sous le nom de Mgr Joseph-Bruno Guigues, ce prêtre oblat est né à Gap, 

dans la commune de La Garde, dans les Hautes-Alpes, en France, en 1805. En 1844, 

il est envoyé au Canada afin de gérer la vision d’expansion au Canada et aux États- 

Unis de l’ordre missionnaire des Oblats. En 1848, il réussit à créer un collège et un 

séminaire à Bytown (Ottawa) ; dès le début, Mgr Guigues reconnaît que ce collège (qui 

deviendra l’Université d’Ottawa) devait assurer un enseignement en français et en 

anglais. Gaston Carrière, « Joseph-Bruno Guigues » en ligne : Dictionnaire 

biographique du Canada ; voir aussi Louis Gladu, Monseigneur J E B 

Guigues, 1er évêque d’Ottawa : sa vie et ses œuvres, Ottawa, Imprimerie du Courrier, 

1874. 

191 

Voir généralement Michel Prévost, L’Université d’Ottawa depuis 1848, Ottawa, 

Université d’Ottawa, 2008. 

192 

Ibid (« Le 1er juillet de la même année [1965], l’Université d’Ottawa est constituée en 

corporation non assujettie aux restrictions ou au contrôle d’un organisme extérieur, laïque ou 

religieux. Les facultés ecclésiastiques, qui sont en même temps des facultés civiles, de même que 

les instituts d’études pastorales et de missiologie relèveront désormais de l’Université Saint-Paul. 

Cette dernière conserve la charte royale et la charte pontificale et est fédérée à l’Université 

d’Ottawa » à la p 47) ; voir aussi Roger Guindon, Coexistence féconde. La dualité 

linguistique à l’Université d’Ottawa, vol III : 1936-1965, Ottawa, Les Presses de 

l’Université d’Ottawa, 1995 aux pp 33-41 ; voir aussi Ontario, Assemblé Législative, 

Débats, 27 e lég, 3 e sess n o 116-144 (8 juin 1965) aux pp 3794-96 (Horace Racine : « I 

was very pleased, however, Mr. Speaker, when my good friend, the very able and sympathetic 

Minister of University Affairs told me some time ago that discussions had been taking place 

between the Oblate fathers and his department, that would make it possible for the University 

of Ottawa to receive grants that would enable it to carry on its work as a bilingual university in


moment de la première lecture du projet de loi qui deviendrait la Loi 

concernant l’Université d’Ottawa 193 , le député Fernand Guindon 194 s’est 

exprimé ainsi, en anglais, sur le rôle important de cette institution 

relativement au développement de la communauté francophone de la 

province : 

[…] the university and its staff have been dedicated to the goal of making the 

University of Ottawa a truly bilingual institution-a place of higher learning where 

both English- and French-speaking students are assured of a sound education, an 

opportunity to learn of and appreciate our two major languages and cultures, and 

a chance to live and learn within a single educational environment which reflects 

our mixed heritage. Nothing could be more important at this time than the fact 

that such an institution should exist. Nothing could be more important than its 

growth and development. Nothing could be more important than the fact that it 

be encouraged and supported in the attainment of the ideal which it seeks [nous 


the eastern part of this province… I think I can say that without this new arrangement, this 

institution would not have been able to carry on, and that would have been a great tragedy » 

[nous soulignons]). Horace S. Racine, du Parti libéral, a représenté en tant que député 

la circonscription d’Ottawa-Est de 1963 à 1967 (Gouvernement de l’Ontario, Les 

députés, en ligne : Assemblée législative de l’Ontario 

). 

193 

Loi concernant l’Université d’Ottawa, supra note 34. La Loi concernant l’Université 

d’Ottawa est adoptée au moment où la Commission royale d’enquête sur le 

bilinguisme et le biculturalisme mène son enquête. La Fédération des Sociétés Saint- 

Jean-Baptiste de l’Ontario indique dans son mémoire à la Commission d’enquête que 

l’Université d’Ottawa a une influence déformatrice par son caractère « bilingue, 

surtout anglais » et que des institutions françaises, de l’école primaire à l’université 

sont nécessaires (Mémoire de la Fédération des Société Saint-Jean-Baptiste d’Ontario 

présenté à la Commission royale d’enquête sur le bilinguisme et le biculturalisme, 

Ottawa, Bibliothèque et Archives Canada, (RG33 vol 51, dossier 750-451). 

194 

L’honorable Fernand Guindon a siégé à titre de député provincial de l’Assemblée 

législative de l’Ontario du 5 septembre 1957 au 31 mai 1974 de la circonscription de 

Glengarry (1957-1963), devenue ensuite Stormont (1963-1974). Au cours de sa longue 

carrière au sein du gouvernement en tant que membre du Parti progressisteconservateur 

de l’Ontario il a été notamment ministre du Tourisme et de 

l’Information (1971-1972), ministre du Travail (1972-1974) et il a siégé en tant que 

membre de nombreux comités, dont le Comité permanent de l’éducation et des 

affaires universitaires (Gouvernement de l’Ontario, Les députés, en ligne : Assemblée 

législative de l’Ontario ). 

195 

Ontario, Assemblée législative, Débats, 27 e lég, 3 e sess, n° 108 (27 mai 1965) à la p 

3299 (M Guindon).

Taxonomie 111 

L’équipe éditoriale du quotidien Ottawa Journal claironnait ce qui suit 

le 24 mars 1965 : 

While the university becomes a public one, we would hope that it would cherish 

and even deepen its bilingual character. The University of Ottawa is specially 

able to serve the French-speaking citizens of Ontario. It should be the ornament 

of higher education in the French language in this province. Nothing could be a 

better testimonial of the biculturalism of Canada than to have grow and flourish 

a bilingual university in the national capital. With goodwill, these are details that 

can be worked out. The fundamental changes now afoot show in what exciting 

days we live, and how quickly the old order is making way for the new 196 . 

Enfin sanctionnée en 1965, la Loi concernant l’Université d’Ottawa était 

le fruit de plusieurs années de négociations 197 et codifiait un mandat 

plutôt général de « favoriser le développement du bilinguisme et du 

biculturalisme et [de] préserver et développer la culture française en 

Ontario » 198 . 

Pourtant, la Loi concernant l’Université d’Ottawa ne fait pas de 

l’Université d’Ottawa une institution bilingue sur le plan juridique 199 . 

Aucun statut officiel n’est accordé à la langue française en vertu de cette 

loi. Aucune égalité de statut et d’usage du français et de l’anglais n’est 

reconnue. La loi n’assure aucune représentation francophone dans la 

composition du Bureau des gouverneurs et du Sénat 200 . De plus, malgré le 

mandat législatif de favoriser le développement du bilinguisme et du 

196 

Reproduit dans : Ontario, Assemblée législative, Débats, 27 e lég, 3 e sess, n° 121 (8 juin 

1965) à la p 3795 (M Racine). 

197 

Ontario, Assemblée législative, Débats, 27 e lég, 3 e sess, n°116-144 (17 juin 1965) à la p 

4312 (Hon Robarts : « As you can well understand, this bill is the result of many years of 

negotiation and naturally it was handled with some delicacy »). 

198 

Loi concernant l’Université d’Ottawa, supra note 34, art 4(c). Larocque et al, supra note 

189, soutiennent que la deuxième partie de l’alinéa 4(c) (« préserver et développer la 

culture française en Ontario ») impose une obligation de résultat. Ils avancent que 

l’alinéa 4(c) est une expression législative du principe constitutionnel de la protection 

des minorités. Cette disposition représente l’une des premières codifications 

législatives ontariennes en matière de droits linguistiques. 

199 

Voir notamment Larocque et al, supra note 189. 

200 

Comme l’expliquent Larocque et al, supra note 189 : « les questions susceptibles d’influer 

sur le statut de la langue et de la culture françaises, par exemple les questions de nature 

académique et budgétaire ne font pas l’objet de dispositions qui prévoiraient, en ce qui les 

concerne, une formule d’adoption spéciale sous le régime de la [Loi concernant l’Université 

d’Ottawa]. Une simple majorité des voix suffit pour abolir un programme ou un service en 

français ».


biculturalisme et de préserver et développer la culture française en 

Ontario, la Loi concernant l’Université d’Ottawa n’a pas été modernisée 

depuis 1965 201 . 

En 1974, le Bureau des gouverneurs et le Sénat de l’Université 

d’Ottawa ont adopté le Règlement sur le bilinguisme à l’Université d’Ottawa 202 . 

Le préambule du règlement précise pour la première fois qu’« en principe 

et dans les faits, le français et l’anglais sont les langues officielles de 

l’Université » 203 . Le règlement prévoit également des règles administratives 

portant sur le bilinguisme de l’administration centrale, du personnel de 

soutien, des programmes d’études, du corps professoral et des étudiants. 

Une des faiblesses majeures du règlement – et donc du statut de la langue 

française à l’Université d’Ottawa – est qu’il peut être modifié à tout 

moment par une majorité des voix du Bureau des gouverneurs et du 

Sénat 204 . De plus, bien que le Bureau des gouverneurs et le Sénat soient 

responsables de son application 205 , le règlement ne comprend aucun cadre 

ou mécanisme d’imputabilité relatif aux droits linguistiques qui y sont 

garantis vis-à-vis le Bureau des gouverneurs, le Sénat, leurs comités, 

l’administration centrale, les services généraux et l’administration des 

facultés et des écoles 206 . 

Selon certains, l’Université d’Ottawa n’assume pas le rôle de 

leadership dans la communauté franco-ontarienne que la législature lui a 

201 

Un avis juridique reçu par l’Université d’Ottawa en 2010 recommande justement la 

modernisation de sa loi habilitante de sorte à mieux y protéger le statut du français 

(voir M Bastarache et al, Avis juridique concernant la désignation potentielle de 

l’Université d’Ottawa en vertu de la Loi sur les services en français, en ligne : 

 

aux pp 49-50 [Avis Bastarache]). C’est ce qu’ont fait les Assemblées législatives du 

Manitoba et de la Nouvelle-Écosse par rapport à l’Université de Saint-Boniface et 

l’Université Sainte-Anne respectivement. 

202 

Règlement sur le bilinguisme à l’Université d’Ottawa, en ligne: l’Université d’Ottawa 

[Règlement sur le bilinguisme à 

l’Université d’Ottawa]. Le règlement sur le bilinguisme a été approuvé par le Sénat de 

l’Université d’Ottawa le 7 octobre 1974 et par le Bureau des Gouverneurs 

le 18 novembre 1974. 

203 

Ibid, préambule. 

204 

Loi concernant l’Université d’Ottawa, supra note 34, art 11(j), 17. 

205 

Règlement sur le bilinguisme à l’Université d’Ottawa, supra note 202, art 21, 22, 28. 

206 

Ibid.

Taxonomie 113 

confié en 1965 207 . D’autres soutiennent que nous assistons présentement à 

la désinstitutionalisation de l’Université d’Ottawa 208 . La diminution de la 

proportion d’étudiants francophones 209 et d’administrateurs 210 

francophones et le non-respect des dispositions du Règlement sur le 

bilinguisme à l’Université d’Ottawa 211 sont des phénomènes inquiétants qui 

207 

Voir par ex le Mémoire de l’AJEFO remis au Groupe de travail sur les programmes et 

les services en français de l’Université d’Ottawa : « [s]i le Programme de common law en 

français constitue aujourd’hui un partenaire institutionnel important des communautés 

d’expression française de l’Ontario, l’Université d’Ottawa, elle, ne joue pas un tel rôle. La 

langue et la culture française ont été progressivement marginalisées au sein de l’Université 

d’Ottawa, tant sur les plans démographique et social que juridique et politique. Les intérêts des 

communautés d’expression française de l’Ontario devraient être pris en compte dans toutes les 

décisions de l’Université d’Ottawa. Ils ne le sont pas. […] L’historique du Programme de 

common law en français de l’« université canadienne » révèle que son avènement et son 

développement ne se sont pas réalisés grâce à la politique de bilinguisme de l’Université 

d’Ottawa, mais bien en dépit de cette dernière », à la p 2. Les auteurs conservent une copie 

de ce mémoire. 

208 

Joseph Yvon Thériault, « L’institution en Ontario français » (2005) 6 : 1, Mens, Revue 

d’histoire intellectuelle de l’Amérique française, 9[Thériault]. Selon Thériault la 

francophonie à l’Université d’Ottawa « n’est plus une mission, un mandat, qui définit la 

construction des programmes, l’organisation de la vie universitaire, le déploiement d’un milieu 

intellectuel francophone en Ontario, mais un élément parmi d’autres »(ibid à la p 21). 

Thériault ajoute que « [c]e qui frappe toutefois, c’est le long silence des leaders de la 

communauté franco-ontarienne face au spectacle de la désinstitutionalisation de ce qui fut un 

jour, pas si lointain, leur université » (ibid aux pp 21-22). 

209 

Au moment de sa création en 1965, l’Université d’Ottawa comptait 2 791 étudiants 

francophones et 2 265 étudiants anglophones (Roger Guindon, Coexistance équitable. 

La dualité linguistique à l’Université d’Ottawa, vol 4, depuis 1965, Ottawa, Presses de 

l’Université d’Ottawa, 1998, à la p 122). À l’automne 2010, il y avait environ 12 300 

étudiants francophones inscrit à l’Université, ne représentant que 31,1 % de la 

population étudiante (Rapport annuel 2010-2011 de la Commission permanente des affaires 

francophones et de langues officielles de l’Université d’Ottawa, en ligne : 

à la p 7). 

210 

Thériault indique que le corps professoral et la direction de l’institution, y compris le 

bureau des Gouverneurs, étaient majoritairement francophone au moment de la 

laïcisation de l’Université d’Ottawa en 1965 (Thériault, supra note 208 à la p 18). 

211 

Voir généralement les Rapports annuels de la Commission permanente des affaires 

francophones et de langues officielles de l’Université d’Ottawa, qui font état des 

lacunes graves et systémique du statut et de l’usage du français à l’Université d’Ottawa. 

Les Rapports annuels sont disponibles en ligne : .


justifient selon certains la création d’une université de langue française en 

Ontario 212 . 

À l’heure actuelle, le français à l’Université d’Ottawa est uniquement 

protégé sur le plan juridique par un alinéa de sa loi habilitante, ainsi que 

par un règlement interne qui demeure largement ignoré. La disposition 

législative équivoque peut être abrogée par le législateur et ne prévoit 

aucun mécanisme de mise en œuvre. L’anglicisation de l’Université 

d’Ottawa depuis 1965 démontre l’impotence du statu quo 213 . Au moment 

de signer cet article, l’Université d’Ottawa, n’est toujours pas désignée 214 

parmi les organismes gouvernementaux visés par la LSF, ce qui est d’autant 

212 

Voir par ex « Pour une université française en Ontario » (1985) 7 Revue du Nouvel 

Ontario (dans laquelle Jean-Pierre Pichette a déclaré : « Il n’est pas exagéré d’avancer 

que l’avènement de l’université française en Ontario n’est plus qu’une question de 

temps » à la p 7) ; voir également le Rapport du Nord de l’Ontario, supra note 159 qui 

souleva que « [n]ombreux sont les intervenants qui nous ont laissés en nous disant qu’ils 

rangeaient leur mémoire sur la tablette en attendant de le ressortir pour la commission sur 

l’université de langue française » à la p 76 ; voir aussi Pierre Allard, « Parlons d’une 

université française », Le Droit (16 septembre 2011) en ligne : 

; voir aussi Michel Giroux, « Cinq 

points sur une Université Franco-Ontarienne », Colloque sur les 25 ans de la Loi sur 

les services en français (LSF), présenté au Pavillon Desmarais de l’Université d’Ottawa, le 

18 novembre 2011 [non publié] ; voir aussi Catherine Lamontagne, « La création 

d’une université frano-ontarienne au cœur des discussions », (8 février 2013) en ligne : 

Le Droit . 

213 

Voir généralement Larocque et al, supra note 189. 

214 

Voir par ex Philippe Orfali, « “Nous posons des gestes concrets”- François Houle », Le 

Droit (28 novembre 2011) à la p 2 ; voir aussi Philippe Orfali, « 15 000 $ pour un avis 

juridique ignoré », Le Droit (28 novembre 2011) à la p 2 ; voir aussi Philippe Orfali, « 

La Loi 8 fait trembler l’Université d’Ottawa », Le Droit (28 novembre 2011) ; voir aussi 

Il faut arrêter d’avoir peur, supra note 177 ; voir aussi Philippe Orfali, « Une demande de 

la Faculté de droit mise à l’écart », Le Droit (29 novembre 2011) à la p 10 ; voir aussi 

Albert Nolette et al, « Des étudiants et des anciens en désaccord avec François 

Houle », Le Droit (29 novembre 2011) à la p 13 ; voir aussi Philippe Orfali, « Le 

recteur ouvre la porte à la désignation », Le Droit (2 décembre 2011) à la p 1.

Taxonomie 115 

plus étrange puisque ses hôpitaux universitaires le sont, ainsi qu’au moins 

l’un de ses instituts 215 . 

E. L’Université Laurentienne 216 

Les racines de l’Université Laurentienne remontent au Collège du 

Sacré-Cœur, qui est fondé en 1913 à Sudbury 217 . Ce collège de langue 

française établi par les Jésuites offrait une formation classique. Il devient 

l’Université de Sudbury en 1957 218 . En 1960, afin de devenir éligible à 

215 

Dans un communiqué de presse du 19 juillet 2012, l’Université d’Ottawa a annoncé 

qu’une demande officielle de désignation en vertu de la LSF a été acheminée au 

gouvernement de l’Ontario (voir Université d’Ottawa, Communiqué de presse, le 19 

juillet 2012, en ligne : ) ; 

voir aussi Philippe Orfali, « L’U d’Ottawa a déposé sa demande », Le Droit (19 juillet 

2012) en ligne : ). Toutefois, le gouvernement de 

l’Ontario a rejeté la demande de l’Université d’Ottawa soutenant que la formule 

proposée par l’Université d’Ottawa était en contradiction avec la LSF (voir 

notamment Philippe Orfali, « L’Ontario renvoie l’Université d’Ottawa faire ses 

devoirs », Le Droit (12 décembre 2012), en ligne : . 

Voir généralement Larocque et al, supra note 189. 

216 

En 2010, l’Université Laurentienne comptait plus de 6 600 étudiants à plein temps et 

presque 2 600 étudiants à temps partiels (November 1st, 2010 Enrolment Report, Prepared 

by the Institutional Planning office, en ligne : ). L’institution compte 286 professeurs à temps plein et 159 

professeurs à temps partiel (en ligne : ). En 2010, ses revenus dépassaient146 000 000 $ (Université 

Laurentienne de Sudbury, États financiers consolidés, exercice terminé le 30 avril 2010, 

en ligne : ). 

217 

Voir généralement : Linda Ambrose et al, Laurentian University: A History, Montréal 

(Québec), McGill-Queen’s University Press, 2010 [Abrose et al] ; voir aussi André 

Bertrand, L’éducation classique au Collège du Sacré-Cœur, Sudbury (Ontario), La société 

historique du Nouvel-Ontario, 1988 ; voir aussi Albert Plante, Vingt-cinq ans de vie 

française : le Collège de Sudbury, Montréal (Québec), Imprimerie du Messager, 1938. Le 

Collège du Sacré Cœur a été incorporé par An Act to Incorporate Sacred Heart College of 

Sudbury, LO 1914, c 131 et amendé par An Act respecting Sacred Heart College of Sudbury, 

LO 1928, c 103. 

218 

The University of Sudbury Act, LO 1957, c 160.


recevoir des fonds publics et suite aux pressions exercées par des groupes 

anglophones et protestants de l’Université de Sudbury d’établir une 

université dans le Nord de l’Ontario 219 , le législateur crée l’Université 

Laurentienne de Sudbury 220 . Il était prévu que cette institution 

postsecondaire soit à la fois bilingue et non-confessionnelle 221 . Au même 

moment, le législateur a créé deux autres institutions qui se sont fédérées à 

l’Université Laurentienne de Sudbury, soit la Huntington University 222 et 

la University of Lalemant College 223 . Quant à l’Université de Sudbury, elle 

devient aussi une université fédérée à l’Université Laurentienne de 

Sudbury 224 . Aujourd’hui, ce sont Huntington University, l’Université de 

Sudbury, et Thorneloe University 225 qui sont les institutions fédérées de 

l’Université Laurentienne 226 , à laquelle est également affiliée, l’Université 

de Hearst 227 . 

219 

À divers moment au long des négociations, huit communautés ont été considérées 

pour l’emplacement de l’Université. Sudbury est ultimement choisie au lieu de North 

Bay (Ambrose et al, supra note 217, pp 21-22). 

220 

An Act to incorporate Laurentian University of Sudbury, LO 1960, c 151 [An Act to 

incorporate Laurentian University of Sudbury]. Cette loi a été modifiée par LO 1961-62, c 

154. Voir génénalement Ambrose et al, supra note 217, pp 17-30. 

221 

An Act to incorporate Laurentian University of Sudbury, supra note 220, préambule : 

« Whereas the University of Sudbury, the United Church of Canada and The Incorporated 

Synod of the Diocese of Algoma (Anglican) by their petition have represented that they are 

desirous of establishing in the Province of Ontario, at or near the City of Sudbury, a nondenominational 

bilingual institution to provide facilities for instruction in all branches of higher 

learning having the rights and powers of a university; and whereas the petitioners have prayed 

for special legislation to effect such purpose; and whereas it is expedient to grant the prayer of 

the petition » [nous soulignons]. 

222 

An Act to Incorporate Huntington University, LO 1960, c 143. 

223 

An Act to Incorporate The University of Lalemant College, LO 1960, c 172. 

224 

An Act Respecting The University of Sudbury, LO 1960, c 173. 

225 

An Act to Incorporate Thorneloe University, LO 1960-61, c 135. 

226 

An Act to incorporate Laurentian University of Sudbury, supra note 220, art 4(c)-(e). Le 

Collège universitaire d’Algoma était autrefois fédéré à l’Université Laurentienne. 

227 

Il n’a pas été possible d’identifier la loi habilitante de l’Université de Hearst, ni 

d’établir s’il en existe une. Voir toutefois, l’entente d’affiliation intitulée « Entente 

intervenue entre l’Université Laurentienne de Sudbury et le Collège universitaire de 

Hearst » intervenue le 14 février 1986, dont les auteurs conservent une copie [Entente 

Hearst - Laurentienne].

La loi habilitante de l’Université Laurentienne lui permet 

[d’]établir et maintenir, en français 

ou en anglais ou dans ces deux 

langues, les facultés, écoles, 

instituts, départements et chaires 

que le Conseil décidera, en plus de 

ceux qui sont déjà établis par 

l’Université de Sudbury, lesquels 

facultés, écoles, instituts, 

départements et chaires sont 

maintenus à l’Université et régis 

par le Conseil ou le Sénat [nous 


La même loi prévoit que l’institution peut : 

établir un collège universitaire au 

sein de la Faculté des Arts et des 

Sciences, qui sera appelé Collège 

Universitaire, lequel dispensera 

son enseignement en français ou 

en anglais ou dans ces deux 

langues, dans les matières, sauf la 

religion, que la Faculté des Arts et 

des Sciences de l’Université peut 

parfois approuver avec 

l’assentiment du Sénat et du 

Conseil ; et l’Université acceptera 

de tels cours comme remplissant 

en partie les exigences requises 

pour l’obtention d’un grade aux 

mêmes termes et conditions qui 

auraient cours si cet enseignement 

avait été dispensé à l’Université 

même [nous soulignons] 229 . 

Taxonomie 117 

to establish and maintain, in either 

or both of the French and English 

languages, such faculties, schools, 

institutes, departments and chairs 

as determined by the Board, other 

than those already established by 

the University of Sudbury, which 

faculties, schools, institutes, 

departments and chairs are 

continued in the University under 

authority of the Board and Senate 

to establish a college of the 

University within the Faculty of 

Arts and Science to be known as 

University College, which college 

shall give instruction in either or 

both of the French and English 

languages in such subjects, 

excepting religious knowledge, as 

may from time to time be approved 

by the Faculty of Arts and Science 

of the University and be consented 

to by the Senate and Board, and 

the University shall accept such 

courses in partial fulfillment of the 

requirements for a degree under 

the same academic terms and 

conditions as would obtain if the 

instruction were given in the 

University 

Le français et l’anglais ne jouissent pas d’une égalité de statut ou 

d’usage à l’Université Laurentienne. L’Université Laurentienne n’est pas 

obligée d’offrir des programmes en langue française. Elle n’est pas non 

plus tenue d’offrir des services en français. Contrairement à l’Université 

d’Ottawa, l’Université Laurentienne n’est même pas investie du mandat 

législatif de favoriser le développement du bilinguisme et du 

228 

An Act to Incorporate Laurentian University of Sudbury, supra note 220, art 4(1)(a). 

229 

Ibid, art 4(1)(c).


biculturalisme et de préserver et de développer la culture française en 

Ontario 230 . 

Toujours est-il que le Sénat et le Conseil des gouverneurs ont adopté 

en 2005 une Politique de bilinguisme à l’Université Laurentienne 231 . Cette 

politique prévoit à son article 2.1 que « Le français et l’anglais sont les 

langues officielles de l’Université » 232 . Soulignons également que le 

préambule de la Politique de bilinguisme à l’Université Laurentienne énonce 

que : 

l’Université entend respecter 

intégralement les droits acquis, au 

moment de l’adoption de la 

présente politique, par son 

personnel enseignant, son 

personnel de soutien et ses 

membres du corps professoral 

actuels, y compris toutes 

conventions collectives ; EN 

CONSÉQUENCE, le Conseil des 

gouverneurs et le Sénat de 

l’Université adoptent le règlement 

suivant 233 . 

the University wishes to respect 

fully the acquired rights of its 

teaching personnel, support staff 

and students who are at the 

University at the moment of the 

coming into force of the 

regulation , including any 

collective 

agreements; 

THEREFORE, the Board of 

Governors and the Senate of the 

University adopt the following 

regulation 

La Politique de bilinguisme à l’Université Laurentienne prévoit 

également que : 

2.2 L’Université a l’objectif de 

donner à la collectivité 

universitaire et au public en 

général des services de qualité 

2.2 The University’s objective is to 

offer services of equal quality in 

both languages to the University 

community, and to the general 

230 

Loi concernant l’Université d’Ottawa, supra note 34, art 4(c). Voir par ex Donald 

Dennie, « Historique du bilinguisme à l’Université Laurentienne » (1985) 7 Revue du 

Nouvel-Ontario 115 (« Dès les débuts de l’institution, la définition du bilinguisme s’est avérée 

problématique car la loi constituant de Laurentienne mentionne seulement que l’université est 

une “non-denominational bilingual institution” qui a les pouvoirs d’établir et de maintenir en 

français et en anglais des facultés, des écoles, des institutes et des départements tells que 

déterminé par le Conseil des gouverneurs » aux pp 115-118). 

231 

Politique de bilinguisme à l’Université Laurentienne, adoptée par le Sénat le 13 décembre 

2005, adoptée par le Conseil des gouverneurs le 10 février 2006, en ligne : [Politique de bilinguisme à l’Université Laurentienne]. 

232 


233 

Ibid, préambule.

Taxonomie 119 

équivalente dans les deux langues 

officielles. 

2.3 Tous les services généraux et 

scolaires seront également 

accessibles en français et en anglais 


public. 

2.3 All general and educational 

services will be equally accessible in 

English and in French. 

La politique prévoit aussi que tous les contrats de service doivent 

respecter les dispositions pertinentes de la politique du bilinguisme 235 . La 

politique instaure le bilinguisme au Conseil des gouverneurs 236 , au 

Sénat 237 , aux services généraux et aux services académiques 238 et dans les 

communications officielles 239 . Elle exige également le bilinguisme 

fonctionnel de la part de gens occupant certains postes 240 , elle prévoit le 

traitement des langues dans l’établissement et dans la répartition des 

programmes 241 et elle codifie l’aspiration à un corps professoral bilingue 242 , 

234 

Ibid, art 2.2, 2.3. 

235 

Ibid, art 2.5. Cette politique permet donc d’éviter que l’Université se décharge de ses 

responsabilités par délégation. Une telle interdiction existe ailleurs, notamment sur le 

plan fédéral à l’article 25 de la LLO, supra note 56 et en Ontario en vertu du Règlement 

sur la Prestation de services en français pour le compte d’organismes gouvernementaux, Règl de 

l’Ont 284/11 pris en vertu de la LSF. 


Politique de bilinguisme à l’Université Laurentienne, supra note 231, art 3. Il est possible 

d’employer l’une ou l’autre des langues officielles pendant les réunions et dans les 

documents et la correspondance. Les procès-verbaux des réunions doivent être diffusés 

simultanément dans les deux langues officielles. 

237 

Ibid, art 4. Il est possible d’employer l’une ou l’autre des langues officielles pendant les 

réunions du Sénat et dans les documents et la correspondance. Les procès-verbaux des 

réunions doivent être diffusés simultanément dans les deux langues officielles. 

238 

Ibid, art 5. Il est possible d’employer l’une ou l’autre des langues officielles pendant les 

réunions des services généraux et dans les documents et la correspondance. Les 

procès-verbaux et les rapports émanant des services généraux sont rédigés dans la 

langue dans laquelle les interventions et les propositions ont été faites. 

239 

Ibid, art 6. Les communications de l’université sont diffusées simultanément dans les 

deux langues officielles, sauf lorsque la nature de la communication justifie l’usage 

d’une langue seulement. 

240 

Ibid, art 7. 

241 

Ibid, art 8. 

242 

Ibid, art 9.4 : « (a) Après l’adoption du présent règlement, l’Université n’engagera à titre de 

membre du personnel enseignant que les personnes qui sont au moins au niveau du bilinguisme 

réceptif ou qui s’engagent à atteindre ce niveau de compétence linguistique ; (b) [u]n membre du 

personnel enseignant engagé sur la foi d’un tel engagement ne pourra, aussi longtemps qu’il ne


à un corps étudiant davantage bilingue 243 et à un personnel administratif 

de soutien davantage bilingue 244 . 

La politique prévoit un « Comité conjoint du bilinguisme » 245 . Ce 

comité a la responsabilité d’évaluer la mise en œuvre du règlement 246 . Le 

Comité « doit régulièrement rendre compte au Conseil [des gouverneurs] 

et soumettre un rapport annuel au Conseil [des gouverneurs] et au 

Sénat » 247 . Le « Conseil [des gouverneurs] et le Sénat doivent veiller à ce 

que les deux communautés linguistiques soient bien représentées au 

Comité conjoint » 248 . 

Pourtant, similairement au règlement sur le bilinguisme de 

l’Université d’Ottawa, ce règlement pourrait être modifié ou supprimé par 

le Sénat de l’Université Laurentienne et son Conseil des gouverneurs 249 . 

L’Université Laurentienne et ses institutions fédérées et affiliées ne 

sont pas encore désignées en tant qu’organismes gouvernementaux au sens 

de la Loi sur les services en français 250 . La loi habilitante de l’Université 

s’en sera pas acquitté, obtenir la permanence ». 

243 

Ibid, art 10.1 : « [i]l est attendu qu’une personne admise à un programme d’études doit posséder 

une connaissance suffisante de la langue que lui impose son programme » ; voir aussi ibid, art 

10.2 : « [c]hacune des facultés est encouragée à mettre en œuvre des mesures propres à inciter ses 

membres du corps étudiant à acquérir une connaissance tout au moins passive de la langue 

seconde » ; voir aussi ibid, art 10.4(b) : « [l]e membre du corps étudiant a le droit d’exiger 

qu’un cours auquel il s’est inscrit soit donné dans la langue utilisée dans l’annuaire courant, 

sous réserve que soient respectés les règlements de la faculté ou de l’unité et des conditions 

prévues pour qu’un cours puisse être donné ». 

244 

Ibid, art 11. Certains postes requièrent le bilinguisme et l’université offre des cours de 

langues à ses employé(e)s. 

245 

Ibid, art 12. 

246 


247 

Ibid, 12.1. Ceci aide au Conseil des gouverneurs et au Sénat de remplir leurs devoirs 

prévus à l’article 2.4 du Règlement : « [d]ès son adoption, le Conseil des gouverneurs, par 

l’entremise du recteur ou de la rectrice et du Comité conjoint du bilinguisme, veille au respect de 

la présente politique en matière de bilinguisme ». 

248 

Ibid. 

249 

Ibid, préambule. Le préambule énonce que « l’Université entend respecter intégralement les 

droits acquis, au moment de l’adoption de la présente politique, par son personnel enseignant, 

son personnel de soutien et ses membres du corps professoral actuels, y compris toutes conventions 

collectives » et qu’en conséquence, « le Conseil des gouverneurs et le Sénat de l’Université 

adoptent le règlement […] ». 

250 

Selon un communiqué de presse du 1 mai 2012, le Conseil des gouverneurs de 

l’Université a approuvé une résolution visant à solliciter une désignation partielle de 

l’Université en vertu de la LSF (voir Université Laurentienne, Communiqué de presse, le

Taxonomie 121 

Laurentienne ne protège pas le statut du français. Pis encore, la loi 

habilitante de l’institution n’accorde aucun statut juridique au français. 

Elle ne fait que reconnaître dans son préambule l’historique de son usage 

et investir les instances de l’université de pouvoirs discrétionnaires vastes, 

lui permettant d’angliciser l’institution. Pour le moment, le statut 

juridique du français à l’Université Laurentienne n’est reconnu qu’aux 

termes d’une simple politique qui peut être modifiée ou abrogée 

facilement. 

F. Le Campus Saint-Jean de l’Université de l’Alberta 251 

Bien qu’il ait aujourd’hui pignon sur rue à Edmonton, le Campus 

Saint-Jean de l’Université of Alberta a d’abord vu le jour en 1908 à 

Pincher Creek en Alberta sous le nom du Juniorat Saint-Jean 252 . En 1910, 

les pères Oblats ont obtenu du premier ministre Alexander Cameron 

Rutherford 253 quelques hectares de terre au sud de la ville d’Edmonton et 

le Juniorat est déménagé à cet endroit en 1911 254 . À partir de 1928, le 

Juniorat Saint-Jean devient une institution de langue française 

officiellement affiliée à l’Université d’Ottawa et en 1942, le Juniorat Saint- 

Jean devient un collège classique 255 . En 1961, le collège a créé une école de 

1 mai 2012, en ligne : ). Voir aussi Philipe Orfali « La Cité collégiale et 

les universités du Nord songent à la désignation » Le Droit (25 novembre 2011) à la p 

9. Voir aussi « Services en français : la désignation de la Laurentienne suit son cours » 

(12 décembre 2012), en ligne : Radio Canada . 

251 

En 2009-2010, la population étudiante du Campus Saint-Jean était de plus de 600 

étudiants au 1er cycle et de presque 100 étudiants au 2e cycle. Pour l’exercice 

financier 2009-2010, les revenus du Campus Saint-Jean dépassaient 12 600 000 $ 

(voir Rapport des activités 2009-2010, en ligne : ). 

252 

France Levasseur-Ouimet, D’année en année : de 1650 à 2000 : Une présentation 

synchronique des événements historiques franco-albertains, Edmonton, L’Institut du 

patrimoine, 2003 à la p 129 [Levasseur-Ouimet]. 

253 

Alexander Cameron Rutherford était le premier premier ministre de l’Alberta. Il a 

joué un rôle important dans la création de l’Université de l’Alberta. Voir 

généralement Legislative Assembly of Alberta, The Honourable Alexander C Rutherford, 

1905-10, en ligne : . 

254 

Levasseur-Ouimet, supra note 252 à la p 143. 

255 

Ibid aux pp 185-186.


pédagogie avec l’aide de l’Université Laval, mais ce programme devient 

affilié à l’Université de l’Alberta en 1963 256 . 

Le Collège Saint-Jean d’Edmonton a été incorporé par la province en 

1961 257 . Aucun statut juridique n’est accordé au français dans cette loi. En 

1970, « une entente officielle est signée entre [l’Université de l’Alberta] et 

le Collège Saint-Jean en vertu de laquelle le Collège devient un collège 

universitaire en mesure d’offrir les programmes de l’université » 258 . 

Une entente intervient le 14 avril 1976 entre la province de l’Alberta, 

l’Université de l’Alberta, le Collège Saint-Jean 259 et les pères Oblats 260 . Aux 

termes de cette entente, l’Université de l’Alberta achète le collège des pères 

Oblats au prix de 3 200 000 $. Presque le tiers de cette transaction avait 

été financé par le gouvernement du Canada 261 . L’Entente de 1976 aborde la 

pérennité de l’institution: 

256 

Ibid. 

257 

An Act to incorporate Le College St. Jean d’Edmonton, SA 1961, c 94. 

258 

Levasseur-Ouimet, supra note 252 à la p 303. Il semble aussi qu’en 1970, le 

gouvernement fédéral s’est opposé à un projet du gouvernement albertain en vertu 

duquel le Collège Saint-Jean aurait été transformé en université francophone 

(« Université francophone refusée ? », Le Franco-albertain (18 février 1970) à la p 1). 

259 

Frank McMahon est le doyen au moment de la signature de cette entente. Dr. Frank 

McMahon est né à Saint-Paul en Alberta et a étudié à Ottawa, à Rome et à Montréal. 

Il était le doyen du Collège Saint-Jean entre 1971 et 1980 et le président de 

l’Association canadienne-française de l’Alberta entre 1973 et 1975. Il était l’un des 

fondateurs de la Fédération des francophones hors-Québec. Dans les années 1980 et 

1990, McMahon a revendiqué l’obtention de l’enseignement en français au niveau 

secondaire à l’École secondaire Maurice-Lavallée à Edmonton en se levant debout sur 

une chaise, en pleine réunion, pour faire part de son désaccord. Il est présentement 

professeur émérite à l’Université de l’Alberta. Voir Frank McMahon, en ligne : 

University of Alberta Centenary . 

Concernant l’École Maurice Lavallé 

pendant les années 1980, voir généralement Mahé c Alberta, 1985 64 AR 35 (BR). 

260 

Agreement made as of the 14 th day of April, A.D. 1976 between : Her Majesty the Queen in 

the Right of Alberta, represented herein by the Minister of Advanced Education and Manpower 

of the first part, and the Governors of the University of Alberta of the second part, and le 

Collège St. Jean d’Edmonton and les Révérends pères Oblats de Marie Immacculée des 

Territoires du Nord-Ouest of the third part [Entente de 1976]. L’article 1.3 précise : « the 

Province hereby gives the University the necessary funds for such purchase ». Les auteurs 

conservent une copie de cette entente. 

261 

L’attendu que 7 du préambule de l’Entente de 1976, ibid prévoit également que le 

gouvernement fédéral versera une somme de 1 000 000 $ à la province de l’Alberta 

pour l’achat. Voir aussi « un chèque d’un million de $... », Le Franco-albertain (14 avril

Taxonomie 123 

3.7 Where the Province receives grants or payments from Canada based on 

educational activities or student enrollment [sic] or otherwise relevant to any of 

the College programs or any extension thereof […] then the Province agrees to 

provide such grants or payments directly to the University for the purposes of the 

College program without reducing in any way the regular grants made and to be 

made to the University by the Province for the College program; and it is further 

agreed that if Canada shall cease to provide such grants or payments or shall 

reduce the amounts thereof, that the Province will replace and continue the 

same on the same terms so long as a reasonable demand exists for the College 

program [nous soulignons] 262 . 

Il semble que les parties à l’entente avaient l’intention de garantir 

l’offre de programmes et de services en français au sein de l’institution. Le 

collège joue un rôle unique dans la province: 

3.1 The Province and the University acknowledge that the College program is a 

unique type of post-secondary educational program having regards to its 

historical background, its situs, its student residences, its recruitment problems, 

its language of instruction, the French-Canadian atmosphere, the special funding 

programs available for its maintenance and the conditions which have led to the 

execution of this agreement 263 . 

Les parties à l’entente reconnaissent également l’importance du 

Collège Saint-Jean pour les populations d’expression française à 

l’extérieure de l’Alberta et notamment pour la francophonie de l’Ouest et 

du Nord du Canada: 

The Province has agreed with Canada to ensure that the French language 

teacher-training portion of the College program shall be kept open so long as 

there exists a reasonable demand for teacher-training in the French language by 

potential students from the Province of Alberta as well as from other parts of 

Canada and primarily from the Provinces of Manitoba, Saskatchewan and British 

Columbia, the Yukon Territory and the Northwest Territories [nous 


1976) à la p 3. 

262 

Entente de 1976, supra note 260, art 3.7. 

263 

Ibid art 3.1. Voir aussibid préambule : « The Province and the University acknowledge that 

the College program must be maintained in facilities separate from the main campus of The 

University of Alberta in order that it be operated in the French atmosphere required for its 

success, that it will attract relatively small numbers of students with consequent higher costs per 

student, and that additional contributions of Canada be made in order to offset some of the said 

additional costs ». 

264 

Voir l’Entente de 1976, ibid, l’attendu que 8 du préambule. Voir aussi ibid, art 3.4 et 

3.5 : Ces dispositions prévoient que les demandes d’admission au programme de 

formation à l’enseignement en langue française présentées par des candidats


L’Entente de 1976 renferme un engagement de l’Université de l’Alberta 

de maintenir, d’améliorer et d’agrandir le collège : 

3.2 The University covenants and agrees to use its best efforts to operate, 

maintain, improve and expand the College program, the buildings, equipment 

and supplies used in conjunction therewith as an integral part of the University 

of Alberta, all of the same to be located at the College site, and to refrain from 

establishing on the College site any program or facilities which may adversely 

affect the College program 265 . 

La province, pour sa part, garantit des fonds pour permettre à 

l’Université de l’Alberta de s’acquitter de ses engagements : 

3.6 The Province covenants and agrees to provide to the University as and when 

required, funds by way of grant or otherwise in addition to funds now provided 

to the University as may be reasonably necessary to allow the University to 

perform its covenants herein, to operate, maintain, improve, and expand the 

College program and the buildings, equipment, and supplies used in conjection 

[sic] therewith 266 . 

Le collège devient l’une des facultés de l’Université de l’Alberta en 

1977 et sa dénomination devient « Faculté Saint-Jean » en mai 1978 267 . En 

2005, on renomme l’institution « Campus Saint-Jean » 268 . Le Campus 

Saint-Jean « se définit aujourd’hui par son statut universitaire de langue 

française [et il] dessert les étudiants capables de poursuivre en français des 

études universitaires » 269 . Le Campus Saint-Jean a « pour mission de 

provenant du Yukon, des Territoires du Nord-Ouest, du Manitoba, de la 

Saskatchewan et de la Colombie Britannique ne seront pas désavantagées par rapport 

aux demandes présentées par des candidats de l’Alberta. De plus, il est prévu que la 

province finance les coûts encourus par l’Université en recrutant des étudiants de 

l’extérieur de la province (jusqu’à concurrence de 40 000 $ par année, de 1976 à 

1979) (ibid, art 3.9). 

265 

Ibid, art 3.2. Il convient également d’ajouter que cette promesse semble avoir été 

nécessaire afin de conclure l’entente : « The Oblates have advised the other parties hereto 

that they wish to withdraw from actual participation in the Agreement and to dispose of the 

College site so long as they are assured that the College program will be maintained, improved 

and expanded » (ibid, l’attendu que 4 du préambule. 

266 


267 

University of Alberta 2011-2012 Calendar, Office of the Registrar, art 181.1 (Note 

historique et buts), en ligne : University of Alberta [Calendar]. 

268 

University of Alberta Centenary – Campus Saint-Jean, en ligne : . 

269 

Calendar, supra note 267, art 181.1.

Taxonomie 125 

répondre aux besoins particuliers des francophones de l’Ouest du 

Canada » 270 . 

La loi habilitante de l’Université de l’Alberta est la Post-secondary 

Learning Act (« PLA ») 271 . La PLA est silencieuse sur la question des langues 

d’administration et d’enseignement. Elle prévoit seulement que les 

mandats des institutions postsecondaires de la province doivent être 

approuvés par la Minister of Advanced Education and Technology 

(« Ministre ») 272 . Depuis 2009, le mandat de l’Université de l’Alberta inclut 

notamment ce qui suit : 

[… the University of Alberta] also offers French-Language programs leading to 

university degrees, certificates and diplomas as well as college certificates and 

diplomas. A number of its programs are unique within Alberta [nous 


Le mandat ministériel de l’Université de l’Alberta prévoit qu’elle offre 

des programmes universitaires et collégiaux de langue française. Bien que 

ce mandat soit général en ce sens qu’aucun programme précis n’est 

identifié, il consacre la conjoncture actuelle en envisageant l’offre de 

programmes français. 

Enfin, le calendrier académique de l’Université de l’Alberta prévoit la 

politique linguistique suivante à son article 181.1 : 

« A [sic] la Faculté Saint-Jean, à l’exception des cours d’anglais, les cours sont 

offerts en français. La langue de travail pour les administrateurs, les professeurs 

et les membres du personnel de soutien est le français. 

Les étudiants de la Faculté Saint-Jean sont tenus de respecter, en tout temps, le 

caractère francophone de l’institution » 274 . 

L’Université de l’Alberta offre donc ses programmes et ses services en 

français selon le principe de la dualité linguistique, rejetant ainsi la 

formule de bilinguisme retenue par l’Université d’Ottawa et l’Université 

Laurentienne. À l’instar de l’Université Saint-Boniface, de l’Université 

Sainte-Anne et de l’Université de Hearst, et des deux collèges d’arts 

270 

Ibid. 

271 

SA 2003, c P-19.5 [PSA]. 

272 

Ibid, art 103(1), 103(2), 103(3). 

273 

University of Alberta mandate, approuvé par le Minister of Advanced Education and 

Technology, le 17 juillet 2009, en ligne : Alberta Enterprise and Advanced Education 

. 

274 

Calendar, supra note 267, art 182.2.


appliqués et de technologie de l’Ontario, l’Université de l’Alberta a créé 

un espace homogène de langue française depuis lequel sont offerts ses 

programmes et ses services en français. 

Le fait demeure cependant que le statut du français au sein de 

l’Université de l’Alberta nous semble assez précaire, n’étant aucunement 

protégé sur le plan législatif. Le statut juridique du français à l’Université 

de l’Alberta découle d’un mandat ministériel pouvant être modifié ou 

retiré et, à la limite, de l’Entente de 1976 dans la mesure où cet instrument 

continuerait de lier ses parties ou leurs successeurs. Rien n’indique que le 

bien-fondé de l’Entente de 1976 n’ait été remis en question 275 . 

G. Conclusion sur les institutions de la Catégorie 2 

Le statut juridique du français dans les institutions postsecondaires de 

la catégorie 2 varie en force et en forme. D’une part, l’Université de Saint- 

Boniface et l’Université Sainte-Anne bénéficient de protections législatives 

expresses dans leurs lois habilitantes qui préservent l’homogénéité de ces 

institutions en privilégiant la langue française. Similairement, un 

règlement adopté par l’Assemblée législative de l’Ontario protège le statut 

du français au sein du Collège Boréal et de La Cité collégiale, en plus de 

protéger le caractère homogène francophone de ces institutions. De plus, 

les programmes et les services offerts par le Collège Boréal sont désignés 

aux termes de la LSF. 

D’autre part, le statut juridique du français à l’Université d’Ottawa et 

à l’Université Laurentienne favorise l’anglicisation. Pour le moment, le 

statut du français au sein de l’Université d’Ottawa est protégé par un seul 

alinéa qui ne prescrit aucune mesure concrète pour assurer la préservation 

et le développement de la langue française. L’Université Laurentienne 

quant à elle, n’a à l’heure actuelle aucun devoir ou mandat législatif relatif 

à la langue française et est investie de pouvoirs discrétionnaires vastes 

quant à la langue de livraison de ses programmes et de ses services. De 

plus, la pérennité des règlements internes adoptés par ces deux universités 

ontariennes n’est pas assurée. 

275 

Selon Frank McMahon (supra note 259), l’Entente de 1976, supra note 260 ne semble 

jamais avoir été remise en question. Rien n’indique que l’Entente de 1976 ne 

s’applique plus aujourd’hui. McMahon explique que le père oblat Paul Poirier, qui a 

participé aux négociations de l’Entente de 1976, était très attentif aux détails (Entrevue 

de Frank McMahon par Albert Nolette, (le 20 janvier 2012)).

Taxonomie 127 

Enfin, l’Université de l’Alberta est mandatée par la province d’offrir 

des programmes et des services en français. Toutefois, aucune protection 

législative n’est accordée aux programmes et aux services offerts par le 

Campus Saint-Jean. Seule une entente tripartite semble protéger 

l’ensemble des programmes et des services postsecondaires offerts en 

français en Alberta. 

V. CATÉGORIE 3 : LES AUTRES INSTITUTIONS 

POSTSECONDAIRES OÙ LE STATUT DU FRANÇAIS JOUIT D’UNE 

PROTECTION MINIMALE OU D’AUCUNE PROTECTION 

Il existe plusieurs institutions postsecondaires offrant des programmes 

et des services en français à l’extérieur du Québec où le statut du français 

bénéficie de très peu ou d’aucune protection juridique. Ces institutions 

jouent incontestablement un rôle très important dans la protection et 

l’épanouissement des communautés qu’elles desservent, mais ne sont pas 

tenues d’offrir des programmes et des services en français. L’offre de 

programmes et de services en langue française par ces institutions semble 

être en raison d’efforts communautaires et lié à des raisons historiques. 

A. Le Collège Acadie Î.-P.- É. 276 

Le Collège de l’Acadie de la Nouvelle-Écosse a établi en 1995, un 

campus à Wellington sur l’Île-du-Prince-Édouard 277 . Suite à la fusion du 

Collège de l’Acadie de la Nouvelle-Écosse et de l’Université Sainte-Anne 

en 2003, le campus sur l’Île-du-Prince-Édouard continue d’opérer à 

Wellington jusqu’en 2006, moment auquel le partenariat institutionnel 

avec l’Université Sainte-Anne tire à sa fin. En 2008, le Collège Acadie Î.-P.- 

É. signe un protocole d’entente avec le gouvernement de l’Île-du-Prince- 

276 

En 2010-2011, les revenus du Collège Acadie Î.-P.-É. dépassaient 1 700 000 $. En 

2010-2011, 22 étudiants à temps pleins et 63 étudiants à temps partiels étaient inscrits 

à ses programmes collégiaux. Toutefois, plus de 700 personnes étaient inscrites aux 

formations linguistiques et aux formations sur mesure (Rapport annuel 2011, en ligne : 

). 

277 

À cette date, il était prévu à l’alinéa 8(1)(d) de la Community Colleges Act, SNS 1995-96, 

c 4, qu’une personne nommée par le ministre de l’Enseignement supérieur et de la 

Formation des adultes de l’Île-du-Prince-Édouard siège au Conseil des gouverneurs du 

collège.


Édouard lui conférant le statut d’établissement d’enseignement 

postsecondaire subventionné 278 . 

Le préambule de cette entente prévoit que le Collège Acadie Î.-P.-É. 

poursuit les objectifs suivants: 

- exercer ses activités comme un collège communautaire francophone ; 

- offrir la programmation d’un collège francophone ; 

- offrir des services de formation continue et d’éducation aux adultes ; [et] 

- offrir des possibilités de formation et des services à la communauté en français 279 . 

L’article 2 du protocole d’entente prévoit que : 

[l]e gouvernement souhaite reconnaître les services du Collège Acadie I-P-É 

comme une partie intégrale du système d’éducation postsecondaire et mettre 

l’accent sur l’importance pour le collège Acadie I-P-É de poursuivre ses 

partenariats avec les établissements postsecondaires de l’Île et de l’extérieur [nous 


Ce protocole d’entente accorde un certain statut juridique à la langue 

française au sein du collège et semble, au préambule, consacrer son 

homogénéité linquistique. Le protocole d’entente reconnaît également 

l’importance du rôle que joue le collège dans le système éducatif de la 

province. 

Pourtant, il s’agit d’un simple protocole d’entente qui prend fin en 

2013 281 . La pérennité du collège n’est pas assurée. De plus, le 

gouvernement peut unilatéralement mettre fin au protocole d’entente à 

tout moment 282 . 

278 

Protocole d’entente entre le gouvernement de l’Île-du-Prince-Édouard et la Société 

éducative de l’Île-du-Prince-Édouard, signé le 1 er avril 2008, art 3 [Protocole d’entente]. 

279 

Ibid. 

280 

Ibid, art 2. 

281 

Ibid, art 27. Cette disposition prévoit que le protocole d’entente prend fin le 31 mars 

2013. Toutefois, l’article 30 prévoit la possibilité de renouveler le protocole d’entente 

pour une durée de cinq ans. 

282 

Ibid, art 28 : « Par dérogation aux autres dispositions du présent protocole d’entente, le 

gouvernement peut résilier le présent protocole d’entente en entier ou en partie, en tout temps, au 

moyen d’un avis écrit donné trois mois d’avance, signé au nom du gouvernement et soit livré au 

Collège Acadie Î.-P.-É. ou posté à l’adresse de la dernière place d’affaires connue du Collège 

Acadie Î.-P.-É. ».

Taxonomie 129 

B. Certaines institutions postsecondaires religieuses offrant 

des programmes et services en français 

L’Université Saint-Paul 283 , l’Université de Sudbury 284 et le Collège 

Universitaire dominicain 285 sont des institutions postsecondaires à 

vocation religieuse qui offrent des programmes et des services en français. 

L’Université Saint-Paul a été incorporée par la Province du Canada en 

1849 sous la dénomination de « Collège de Bytown » 286 . L’institution 

prend le nom « l’Université d’Ottawa » à compter de 1933 287 . C’est en 

1965 qu’elle est renommée « l’Université Saint-Paul » lorsque l’Assemblée 

législative de l’Ontario adopte une nouvelle loi habilitante pour la 

« nouvelle » Université d’Ottawa 288 . L’Université Saint-Paul et l’Université 

d’Ottawa sont depuis des institutions fédérées 289 . La loi habilitante de 

283 

En 2010-2011, l’Université Saint-Paul comptait 320 étudiants au premier cycle, 386 

étudiants aux études supérieures et 60 professeurs à temps plein. Pour son exercice 

financier terminant le 30 avril 2010, les revenus de l’Université Saint-Paul dépassaient 

19 000 000 $ (Rapport Annuel 2010-2011, en ligne : Université Saint-Paul 

). 

284 

Il n’a pas été possible de déterminer le nombre d’étudiants inscrits à l’Université de 

Sudbury. Pour son exercice financier terminant le 30 avril 2011, les revenus de 

l’Université de Sudbury étaient près de 6 000 000 $ (Financial Statements of the 

University of Sudbury, le 30 avril, 2011 (les auteurs conservent une copie)). 

285 

En 2009-2010, le Collège Universitaire dominicain comptait 79 étudiants inscrits 

dans ses programmes (Multi-Year Accountability Agreement (MYAA) 2009-2010 

Report Back, en ligne : ). 

286 

An Act to incorporate the College of Bytown, S Prov C 1849 (12 Vict), c 167 (10 May 

1849). 

287 

An Act respecting the College of Ottawa, LO 1933, c 106, art 1. Voir aussi An Act to 

change the name of the College of Bytown, and to amend the Act incorporating the same, S 

Prov C 1861 (23 Vict) c 108. 

288 

Loi concernant l’Université d’Ottawa, supra note 34, art 1.1(1) : « La corporation du 

“Collège de Bytown”, dont le nom a été changé en celui de “The College of Ottawa”, puis de 

nouveau changé en celui de “Université d’Ottawa”, est par les présentes maintenue sous le nom 

de “Université Saint-Paul”, en français et de “Saint Paul University”, en anglais; sous réserve 

des dispositions de la présente loi, elle aura, détiendra, possédera tous les biens, droits, pouvoirs, 

privilèges qu’elle peut avoir, détenir, posséder ou dont elle peut jouir actuellement et (elle) en 

jouira ». 

289 

Ibid, art 28. Les termes de cette fédération sont aujourd’hui prévus par la Convention 

entre Université d’Ottawa, d’une part et Université Saint-Paul, d’autre part, signée et scellée 

le 30 septembre 2010 (les auteurs conservent une copie de cette convention) 

[Convention Ottawa – Saint-Paul].


l’Université Saint-Paul demeure celle qui date de 1933 290 . Une charte 

pontificale a également été conférée à l’institution en 1934 291 . 

L’historique de l’Université de Sudbury est similaire. Tel que 

mentionné ci-dessus, le Collège du Sacré-Cœur, qui a été fondé en 1913 à 

Sudbury 292 , est devenu l’Université de Sudbury en 1957 293 . L’Université de 

Sudbury était l’une des fondatrices 294 de l’Université Laurentienne et est 

aujourd’hui fédérée avec cette dernière 295 . 

Pour sa part, le Collège Universitaire dominicain a été fondé en 1889 

à Saint-Hyacinthe au Québec, mais il est situé à Ottawa depuis le début du 

20 e siècle 296 . Sa loi habilitante est An Act respecting the College of the 

Dominican or Friar Preachers of Ottawa 297 . 

Ces trois institutions ont plus en commun que leur caractère religieux. 

Elles ne sont pas tenues, sur le plan juridique, d’offrir des programmes et 

des services en français. D’une part, leurs lois habilitantes sont silencieuses 

par rapport à la langue. Aucune égalité de statut d’usage, de droits, ou de 

privilèges n’est accordée au français ou à l’anglais. Pis encore, le français 

290 


291 

Par lettres apostoliques de Léon XIII, en date du 5 février 1889, le Collège d’Ottawa 

devint aussi une université de droit pontifical. Pour répondre aux exigences de la 

constitution apostolique Deus scientiarum Dominus de Pie XI sur la réforme des 

études dans les universités catholiques, la direction de l’Université procéda à la 

refonte de la charte pontificale, qui fut approuvée par Rome le 15 novembre 1934 

(Historique de l’Université Saint-Paul, en ligne : ). 

292 

An Act to Incorporate Sacred Heart College of Sudbury, LO 1914, c 131. 

293 

The University of Sudbury Act, LO 1957, c 160. 

294 

L’Université de Sudbury a revendiqué, avec l’Église Unie du Canada et le Synode du 

diocèse anglican d’Algoma, une institution bilingue non confessionnelle qui 

fournirait des installations d’enseignement supérieur dans toutes les disciplines du 

haut savoir : voir An Act to incorporate Laurentian University of Sudbury, supra note 220, 

préambule. 

295 

Agreement between Laurentian University of Sudbury and the University of Sudbury, conclut 

le 10 septembre 1960. Les auteurs conservent une copie de cette entente [Entente 

Sudbury-Laurentienne]. 

296 

Collège Universitaire dominicain, Au nom d’une mission, Ottawa, en ligne : 

 

à la p 13-14. 

297 

An Act respecting the College of the Dominican or Friar Preachers of Ottawa, LO 1967, c 

111. L’article 3 de cette loi accorde au Collège le droit d’octroyer des grades civils en 

philosophie et en théologie ainsi que des grades honorifiques.

Taxonomie 131 

n’y bénéficie d’aucun statut juridique du tout. Les lois habilitantes de ces 

institutions ne leur imposent pas l’obligation de favoriser le 

développement du bilinguisme et du biculturalisme, ni de préserver et de 

développer la culture française en Ontario 298 . Ces institutions ne sont pas 

désignées aux termes de la LSF. De plus, les ententes de fédération qui 

lient, premièrement, l’Université Saint-Paul et l’Université d’Ottawa et, 

deuxièmement, l’Université de Sudbury et l’Université Laurentienne, 

n’imposent aucune obligation d’offrir ou de maintenir des programmes et 

des services en français 299 . Il appert que les programmes et les services en 

français offerts par l’Université Saint-Paul, l’Université de Sudbury et le 

Collège Universitaire dominicain, sont d’abord et avant tout tributaires de 

la bonne foi de leurs dirigeants. Si ces institutions ont offert et continuent 

à offrir des programmes et des services en français, il semble que ce soit 

surtout par tradition ou pour des raisons historiques. Les pouvoirs 

discrétionnaires des administrateurs ne sont pas circonscrits sur le plan 

linguistique. Il y a lieu de craindre les effets de l’assimilation et de 

l’anglicisation progressive 300 . 

298 

Une telle obligation est imposée à l’Université d’Ottawa, voir par ex Loi concernant 

l’Université d’Ottawa, supra note 34, art 4(c). Cette obligation imposée à l’Université 

d’Ottawa, n’est pas imposée à l’Université Saint-Paul, malgré le fait que les institutions 

sont fédérées. 

299 

Entente Sudbury-Laurentienne, supra note 295, cette entente est rédigée uniquement en 

anglais ; voir aussi Convention Ottawa – Saint-Paul, supra note 289. 

300 

Par exemple, le Collège Universitaire dominicain offrait des programmes 

presqu’exclusivement en français jusqu’en 1992, moment auquel le collège a introduit 

le bilinguisme dans certains de ses programmes. Ensuite, à partir de 2003, la Faculté 

de théologie du collège a commencé à offrir un programme d’études de premier cycle 

en anglais. En septembre 2006, le collège a mis sur pied un programme d’études 

supérieures bilingue, AUFC, supra note 28 à la page 6.


C. L’Université de Hearst 301 

L’institution qui deviendra l’Université de Hearst a été fondée en 

1953 par Monseigneur Louis Levesque 302 . Incorporée en 1959 303 sous 

l’appellation « Collège de Hearst », l’institution est devenue affiliée à 

l’Université Laurentienne en 1963 304 . Aujourd’hui, l’Université de Hearst 

est la seule université de langue française en Ontario 305 . Elle offre ses 

programmes depuis trois campus situés à Hearst, à Kapuskasing et à 

Timmins. 

Il convient cependant de rappeler que l’Université de Hearst est liée à 

l’Université Laurentienne en vertu d’une entente intervenue entre les 

deux institutions le 14 février 1986 306 . En vertu de cette entente, 

l’Université Laurentienne s’engage : 

à accepter le Collège en tant qu’établissement affilié dispensant l’enseignement 

de certains programmes prescrits par le Sénat de l’Université […] et à accepter cet 

enseignement comme satisfaisant aux exigences d’obtention d’un certificat, 

diplôme ou grade de l’Université aux mêmes conditions que si l’enseignement 

était dispensé par l’Université 307 . 

301 

En 2008-2009, 229 personnes étaient inscrites à temps plein et à temps partiel à 

l’Université de Hearst (Université de Hearst, Plan stratégique, en ligne : 

à la p 10 [Plan stratégique – 

Hearst]). En 2009-2010, 72 étudiants étaient inscrits à temps plein (Multi-Year 

Accountability Agreement (MYAA) 2009-2010 Report Back, en ligne : 

à la p 3). En 

2010-2011, les revenus de l’Université de Hearst étaient de plus de 6 000 000 $ 

(Rapport des auditeurs Indépendants et états financiers non consolidés (30 avril 2011), en 

ligne : ). 

302 

Université de Hearst, Mission et historique en ligne : [Historique de Hearst]. Louis Levesque est né à Amqui et ordonné prêtre à 

Rimouski, en 1932. Il fut évêque de Hearst de 1952 à 1964 et a fondé un séminaire 

qui deviendra l’Université de Hearst (Diocèse de Hearst, Décès de Mgr Louis 

Levesque,, en ligne : ). 

303 

Il n’a pas été possible de trouver les statuts d’incorporation. 

304 

Historique de Hearst, supra note 302. Avant son affiliation avec l’Université 

Laurentienne, le Collège de Hearst était affilié avec l’Université de Sudbury. 

305 

Bien qu’elle ait entrepris les démarches en ce sens, l’Université de Hearst n’est pas 

encore désignée comme organisme gouvernemental aux termes de la LSF, supra note 

176. 

306 

Entente Hearst – Laurentienne, supra note 227. 

307 

Ibid, partie A, art 1.

Taxonomie 133 

L’entente permet à l’Université de Hearst « à conférer les grades, 

certificats et diplômes aux étudiants du Collège qui, de l’avis du Sénat, ont 

rempli toutes les exigences de ces attestations d’études » 308 . L’entente 

prévoit également que l’Université de Hearst soit représentée au Sénat de 

l’Université Laurentienne 309 . Toutefois, l’Université de Hearst est tenue de 

« se conformer aux règlements et décisions du Sénat de Laurentienne » 310 . 

L’entente est silencieuse concernant la langue d’enseignement et 

n’accorde aucun statut ou protection aux programmes et services en 

français. De plus, l’entente prohibe l’Université de Hearst d’offrir des 

programmes sans l’approbation du Sénat de l’Université Laurentienne 311 . 

Ainsi, comme l’Université de Hearst le souligne dans son plan stratégique, 

l’Université Laurentienne, détient un monopole sur l’offre des 

programmes 312 . 

Les programmes et les services offerts par l’Université de Hearst 

semblent tous être sujets à la discrétion totale du Sénat de l’Université 

Laurentienne qui, comme il a été indiqué ci-dessus, n’a aucun mandat 

législatif de favoriser le développement du bilinguisme et du 

biculturalisme et de préserver et de développer la culture française en 

Ontario 313 . 

D. Des campus ontariens où le français ne bénéficie d’aucune 

protection juridique 

Le Collège universitaire Glendon 314 de l’Université York « était 

autrefois un domaine campagnard doté d’un élégant manoir, qui fut légué 

308 

Ibid, partie A, art 3. 

309 

Ibid, partie A, art 6. 

310 

Ibid, partie B, art 1. 

311 

Ibid. Voir aussi Plan stratégique – Hearst, supra note 301 à la p 17. 

312 

Voir Plan stratégique – Hearst, supra note 301 aux pp 17 et 34. Les auteurs soulignent 

toutefois que l’administration de l’Université de Hearst est d’avis que « les avantages 

de l'affiliation à l'Université Laurentienne dépassent largement les inconvénients » 

(Plan stratégique – Hearst à la p 17). 

313 

Loi concernant l’Université d’Ottawa, supra note 34, art 4(c). Il convient de noter 

toutefois, qu’en février 2012, l’Université de Hearst a demandé sa désignation 

complète en vertu de la LSF (voir Philipe Orfali, « Désignation : Ottawa hésite, Hearst 

va de l’avant », Le Droit (9 février 2012) en ligne : ). 

314 

Selon son site web, environ 2 500 étudiants suivent des cours au Collège Glendon


à [l’Université York] dans les années 1950 » 315 . En 1959, le campus 

original de l’Université York est installé à cet endroit 316 . Quelques années 

plus tard, l’Université York déménage, à l’exception du Collège 

universitaire Glendon. Une nouvelle loi habilitante est adoptée pour 

l’Université York en 1965 317 . Cette loi n’accorde aucun statut juridique au 

français, mais elle accorde au Collège universitaire Glendon une certaine 

représentation au Sénat de l’Université York 318 . Ainsi, le statut du Collège 

universitaire Glendon s’apparente à celui de toute autre faculté de 

l’Université York. 319 Le français ne semble pas être garanti par voie de 

règlement ou de politique interne. Les programmes et les services offerts 

en français au Collège universitaire Glendon ne sont pas désignés aux 

termes de la LSF et sont susceptibles d’être modifiés ou abolis par un vote 

majoritaire du Sénat. Le Commissaire aux services en français de l’Ontario 

a récemment recommandé « [qu’]afin que le Collège universitaire Glendon 

puisse jouer un rôle plus important, il doit d’abord acquérir un nouveau 

statut d’autonomie, s’affilier ou être déclaré pleinement autonome en 

vertu d’une loi de l’Assemblée législative » 320 . 

(Campus Glendon, À propos de Glendon, en ligne : ). Les revenus du Collège Glendon dépassaient 

23 000 000 $ en 2009-2010 (Glendon Budget présentation, October 23, 2009, en ligne : 

). 

315 

Campus Glendon, L’histoire de Glendon, en ligne : . 

316 

An Act to Incorporate York University, LO 1959, c 145. 

317 

The York University Act, LO 1965, c 143, abrogeant An Act to Incorporate York University, 

LO 1959, c 145. 

318 

Ibid, art 11(c). 

319 

Le Commissaire aux services en français de l’Ontario explique que « le collège Glendon 

n’est juste qu’une autre faculté de l’Université York, certes importante, qui offre environ 3 % de 

tous les programmes offerts à l’Université York. Il n’a aucun pouvoir de décision réel et ne peut 

prendre des engagements à long terme avec quiconque, et encore moins développer de nouveaux 

programmes, sans d’abord demander la permission de l’Université York » (Rapport CSF, supra 

note 13 à la p 70). 

320 

Ibid à la p 70. Voir aussi la recommandation 4 du Commissaire aux services en 

français de l’Ontario à la p 70 du Rapport CSF, ibid : « [l]e commissaire recommande au 

ministère de la Formation et des Collèges et Universités d’envisager, d’ici le 31 mars 2013, 

toutes les mesures nécessaires en vue de négocier avec l’Université York relativement à une plus 

grande autonomie pour le Collège universitaire Glendon, de sorte que ce campus universitaire 

serve de base potentielle pour de nouveaux programmes et services d’éducation postsecondaire

Taxonomie 135 

Le Campus d’Alfred 321 de l’Université de Guelph 322 est « le seul 

établissement postsecondaire, de langue française, œuvrant dans le secteur 

agroalimentaire en Ontario » 323 . Le Campus d’Alfred semble être dans une 

situation similaire à celle du Collège universitaire Glendon. L’institution 

est une faculté parmi les autres de l’Université de Guelph et la loi 

habilitante de cette dernière ne confère aucun statut juridique au français. 

E. D’autres programmes et services postsecondaires offerts en 

français qui ne bénéficient d’aucune protection juridique 

Il existe plusieurs autres collèges, instituts et facultés postsecondaires 

offrant des programmes et des services en français à l’extérieur du Québec 

qui ne bénéficient pas de protection juridique, dont notamment l’Institut 

français de l’Université de Regina 324 , le Bureau des affaires francophones 

et francophiles de l’Université Simon Fraser 325 , le Collège Éducacentre en 

destinés à la population franco-ontarienne de la région du Centre-Sud-Ouest ». Voir aussi le 

discours du Trône de l’Ontario en 2013 : « [v]otre gouvernement veillera aussi à ce que la 

culture et les contributions de notre communauté francophone soient reconnues et célébrées. 

C’est pourquoi il élargira la disponibilité des programmes d’études au palier postsecondaire dans 

le Centre-Sud-Ouest de l’Ontario » (Ontario, Discours du Trône 2013, en ligne : Cabinet de 

la première ministre de l’Ontario ). 

321 

Selon l’administration du Campus d’Alfred, en automne 2011, près de 130 étudiants 

étudiaent à temps plein et près de 20 étudiaent à temps partiel au Campus d’Alfred. 

322 

L’Université de Guelph a été créée par An Act to incorporate the University of Guelph LO 

1964, c 120. Cette loi a été modifiée par LO 1965, c 136 et LO 1971, c 56. 

323 

Le Campus d’Alfred, Le Campus, en ligne : Campus d’Alfred 

. 

324 

Selon le Centre de services aux étudiants l’Institut français de l’Université de Regina 

n’a pas de statut académique comme tel ; de ce fait, l’Institut ne crédite aucun 

programme et tous les étudiants qui le fréquentent le font par l'entremise de la Faculté 

des arts ou de la Faculté d'éducation. Voir Radio-Canada, « L’avenir incertain de 

l’Institut français à Régina » (18 juillet 2012), en ligne : . 

325 

Le Bureau des affaires Francophones et francophiles de l’Université Simon Fraser 

développe des programmes avec la Faculté d’arts et de sciences sociales (French 

Cohort Program, « FCP ») et la Faculté d’éducation de l’Université Simon Fraser. En 

2010-2011, 21 étudiants ont été admis dans le FCP. En 2010-2011, 34 étudiants ont 

été admis dans le programme français de la Faculté d’éducation au campus de 

Burnaby et 40 étudiants ont été admis dans le programme français de la Faculté 

d’éducation au campus de Surrey (Final Report on the Projects, Activities and Expenditures 

of the Office of Francophone and Francophile Affairs of Simon Fraser University for the period

136 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 

Colombie-Britannique 326 , le programme de baccalauréat en éducation en 

langue seconde de l’Université de l’Île-du-Prince-Édouard 327 et le Collège 

Mathieu à Gravelbourg, en Saskatchewan 328 . 

Les programmes et les services en français offerts par ces institutions 

jouent un rôle important dans les communautés qu’elles desservent. 

Toutefois, en l’absence de protection adéquate, l’avenir de certains de ces 

programmes et institutions est en péril 329 . Les programmes et les services 

offerts par certaines de ces institutions sont assujettis à la discrétion et aux 

exigences de la majorité 330 . Ces institutions ne bénéficient d’aucune 

beginning April 1, 2010 and ending March 31, 2011, en ligne : ). 

326 

En 2008-2009, les revenus du Collège Éducacentre dépassaient 3 500 000 $ (Rapport 

Annuel 2008-2009, en ligne : ). 

327 

Selon la coordonnatrice du programme, en 2011-2012, 20 étudiants étaient inscrits. 

328 

Le Collège Mathieu, à travers sa composante nommé Service fransaskois de formation 

aux adultes, offre des programmes collégiaux crédités en petite enfance, économie 

sociale et en aidé pédagogique spécialisée. En 2009-2010, le Collège Mathieu 

enregistrait des revenus d’environ 1 000 000 $. Pour la même année, 118 personnes y 

étaient inscrites (Rapport Annuel 2009-2010, en ligne : ). 

329 

Voir par ex les menaces de fermeture de l’Institut français (Radio-Canada, « L’Institut 

français de la Saskatchewan menacé faute de rentabilité » (7 décembre 2011), en 

ligne : Radio-Canada ; voir aussi Radio-Canada, « L’ACF fustige 

les hautes instances de l’Université de Regina » (15 décembre 2011), en ligne : ; voir aussi Radio-Canada, « L’avenir incertain de 

l’Institut français à Regina » (18 juillet 2012), en ligne : Radio-Canada 

 

; voir aussi Radio-Canada, « L’Université de Regina veut abolir 

le baccalauréat en études francophones à Regina » (29 janvier 2013), en ligne : Radio- 

Canada ). 

330 

Un ancien Directeur fondateur et professeur adjoint de l’Institut français à Regina, 

Dominique Sarny explique « [qu’e]n dépit d’un financement qui nous y autorisait et nous 

aurait permis de développer une institution universitaire crédible, la University of Regina nous a 

interdit des professeurs, elle nous a interdit des chercheurs, elle nous a interdit des programmes 

tout en exigeant de l’Institut français qu’il réponde à des critères de rendement impossibles à 

tenir qui ne correspondent aucunement à sa réalité ni à celle de la communauté qu’il dessert en 

priorité » (Lettre de Dominique Sarny (19 décembre 2011), en ligne : 

).

Taxonomie 137 

protection juridique législative quelconque pour assurer leur pérennité 

face à leur situation vulnérable. 

F. Conclusions concernant les institutions de la catégorie 3 

Plusieurs des institutions postsecondaires de la catégorie 3 ont des 

racines profondes dans leurs communautés respectives. Pour reprendre les 

propos de la Cour suprême du Canada, ces institutions « servent ellesmêmes 

de centres communautaires qui peuvent favoriser l’épanouissement 

de la culture de la minorité linguistique et assurer [sa] préservation. Ce 

sont des lieux de rencontre dont les membres de la minorité ont besoin, 

des locaux où ils peuvent donner expression à leur culture » 331 . Pourtant, 

l’offre de programmes et de services par ces institutions n’est aucunement 

garantie. Plusieurs de ces institutions semblent même offrir des 

programmes et des services en français pour des raisons simplement 

historiques ou coutumières. D’autres offrent des programmes et des 

services en français, mais leurs administrateurs doivent continuellement 

œuvrer à assurer leur pérennité au lieu de les développer et de les 

améliorer. 

VI. CONCLUSION 

L’enseignement postsecondaire joue un « rôle primordial dans le 

maintien et le développement de la vitalité linguistique et culturelle » 332 . 

Toutefois, seules les institutions postsecondaires du Nouveau-Brunswick et 

les collèges militaires fédéraux bénéficient d’une protection 

constitutionnelle. Sur le plan juridique, les autres intuitions des CLOSM 

sont peu protégées. Peu d’institutions postsecondaires offrant des 

programmes et des services en français à l’extérieur du Québec bénéficient 

de protection législative ou réglementaire expresse 333 . Il existe de 

331 

Mahé, supra note 12 à la p 364. 

332 

Mahé, supra note 12, à la p 350. 

333 

Voir L’association des parents francophones de la Colombie-Britannique, La Fédération des 

francophones de la Colombie-Britannique c British Colombia, 1996, 27 BCLR (3d) 83 (CS), 

le juge Vickers : « Provincial legislation provides a measure of security beyond a regulatory 

scheme. Amending a statute is far more onerous than amending a set of regulations. As well, the 

presentation of legislation is more likely to ensure a better public understanding of […] the 

protection of language and culture, afforded to both French and English speaking Canadians. 

With debate in the Legislative Assembly comes the opportunity to advance a better


nombreuses institutions postsecondaires des CLOSM qui ne bénéficient 

d’aucune protection juridique. 

Cet article a présenté, analysé et classifié sommairement le statut du 

français au sein des institutions offrant des programmes et des services en 

français à l’extérieur du Québec 334 . 

La taxonomie suivante en résulte : 

Catégorie 1 Catégorie 2 Catégorie 3 

Université de Moncton Université de Saint- Collège Acadie Î.-P.-E. 

Boniface 

Collège communautaire Université Sainte-Anne Université Saint-Paul 

du Nouveau-Brunswick 

Collège militaire royal Collège Boréal Université de Sudbury 

Collège militaire royal de 

Saint-Jean 

La Cité Collégiale Collège Universitaire 

dominicain 

Collège nordique Université d’Ottawa Université de Hearst 

francophone 

Université Laurentienne Campus Collège 

universitaire Glendon de 

l’Université York 

Campus Saint-Jean de 

l’Université de l’Alberta 

Collège Campus d’Alfred 

de l’Université de 

Guelph 

Institut français de 

l’Université de Regina 

understanding of our national heritage and the unique place it holds in the family of nations » 

au para 49. 

334 

Il existe également Contact Nord en Ontario. C’est un réseau qui appuie les 

Ontariennes et Ontariens qui vivent dans de petites régions rurales ou éloignées ainsi 

que les communautés autochtones et francophones de la province. En collaboration 

avec plus de 44 partenaires en éducation (des collèges, des universités, et des 

organismes en alphabétisation et en formation de l’Ontario). Contact Nord aide à 

offrir plus de 10 000 cours à crédit et sans crédit en ligne et plus de 800 programmes 

en ligne. Ses services sont offerts en anglais et en français dans les zones désignées en 

vertu de la LSF. Il existe également le Collège universitaire du Nord, situé au 

Manitoba. Selon l’article 25 de la Loi sur le Collège universitaire du Nord, CPLM c U55, 

les candidats qui rédigent des examens en vue de l’obtention d’un grade, d’un 

certificat ou d’un diplôme du Collège universitaire peuvent le faire en français, en 

anglais ou dans une langue autochtone qu’a précisée le conseil d’administration.

Taxonomie 139 

Catégorie 1 Catégorie 2 Catégorie 3 

Bureau des affaires 

francophones et 

francophiles de 

l’Université Simon Fraser 

Collège Éducacentre 

(Colombie Britannique) 

Programme de 

baccalauréat en 

éducation en langue 

seconde de l’Université 

de l’Île-du-Prince- 

Édouard 

Collège Mathieu 

(Gravelbourg, 

Saskatchewan) 

Il semble également exister un lien entre l’étendue de la protection du 

français et le degré de gouvernance des CLOSM. En général, la taxonomie 

présentée dans cet article révèle que les institutions postsecondaires offrant 

des programmes et des services en français qui sont les mieux protégées 

accordent aux CLOSM un niveau de gouvernance directe et sans 

équivoque 335 . 

Au Québec, il existe huit institutions postsecondaires publiques de 

langue anglaise 336 . Ces institutions ne bénéficient d’aucune protection 

constitutionnelle. Leurs lois habilitantes ne leur offrent pas plus de 

protection. En effet, le gouvernement du Québec prévoit que les 

institutions postsecondaires de langue anglaise doivent se doter d’une 

335 

Comme explique le Commissaire aux services en français : « Tout comme aux paliers 

élémentaire et secondaire, la gouvernance a une incidence sur tous les aspects de l’éducation 

postsecondaire. Étant donné que certains campus et facultés de langue française sont soumis à 

la gouvernance des institutions de langue anglaise, ils ont un pouvoir limité sur leurs finances et 

le financement de programmes. En effet, l’exercice de ce pouvoir est confié à l’établissement 

postsecondaire mère de langue anglaise – une situation qui, en soi, comporte d’innombrables 

ramifications pour l’avenir, le développement et la direction des services et programmes en 

langue française » (Rapport CSF, supra note 13 aux pp 48-49). Voir par ex le para 6(2) de 

la Loi sur l’Université de Saint-Boniface, supra note 121. 


L’Université McGill, l’Université Bisop’s, l’Université Concordia, le Collège Dawson, 

le Collège Héritage, le Collège John Abbott, le Collège Vanier et le Collège 

Marianopolis.


politique relative à l’emploi et à la qualité de la langue française 337 . De 

plus, cette politique « doit traiter de l’enseignement du français comme 

langue seconde, de la langue des communications écrites de 

l’administration de l’établissement avec l’Administration et les personnes 

morales établies au Québec ainsi que de la mise en œuvre et du suivi de 

[la] politique » 338 . Le statut du français dans les institutions de langue 

anglaise du Québec est mieux protégé que le statut du français dans la 

majorité des institutions offrant des programmes et des services en français 

à l’extérieur du Québec. De toute évidence, il y a du rattrapage à faire 

partout au pays. L’Université de Saint-Boniface, dont la loi habilitante a 

été modifiée en 2011, est un exemple d’une institution offrant des 

programmes et des services en français qui a fait du progrès considérable 

dans la protection du statut du français. D’autres institutions, dont 

l’Université d’Ottawa, devraient absolument en faire davantage afin de 

respecter leurs mandats et leur raison d’être 339 . Leur immobilisme est 

gérant et nuisible. 

Il existe plusieurs façons d’améliorer et de continuer cette recherche, 

notamment en comparant en plus grand détail certaines institutions 

postsecondaires hors Québec avec certaines institutions du Québec, ainsi 

qu’en comparant le statut accordé au français dans les institutions 

mentionnées dans l’article à la situation d’autres institutions 

postsecondaires minoritaires ailleurs dans le monde. 

Il est possible de conclure qu’un des problèmes structurels en matière 

d’éducation postsecondaire en langue française hors Québec résulte d’un 

manque de collaboration entre ces institutions, qui semblent évoluer à 

vase clos 340 . La plupart des programmes et des services offerts en français 

ont été mis sur pieds à une époque où les Canadiens-français n’étaient pas 

endigués par les frontières provinciales. Il existait alors une certaine 

collaboration et un appui de certaines institutions postsecondaires de 

langue française au Québec. Il y a lieu de renouer les liens qui ont déjà 

337 

Charte de la langue française, LRQ, c C-11, art 88.1. 

338 


339 

Voir Avis Barstarache, supra note 201 aux pp 49-50. 

340 

Soulignons toutefois, l’existence de l’Association des universités de la francophonie 

canadienne, du Consortium des établissements universitaires de l’Ouest canadien, du 

Consortium des universités de la francophonie ontarienne, du Réseau des cégeps et 

des collèges francophones du Canada, ainsi que les diverses ententes soulevées dans 

cet article.

Taxonomie 141 

reliés ou qui avaient déjà été tissés entre les programmes et les services 

postsecondaires en langue française à travers le Canada, incluant au 

Québec. Par exemple, le Commissaire aux services en français de l’Ontario 

prône davantage de collaboration entre les institutions postsecondaires 

offrant des programmes et des services en français dans cette province 341 . Il 

pourrait en résulter, selon le Commissaire, une université homogène de 

langue française ontarienne qui pourrait peut-être pallier à certains des 

problèmes identifiés dans cet article 342 . 

341 

Voir Rapport CSF, supra note 13, aux pp 51-52. 

342 

Ibid aux pp 62-63.


The Trial Judge’s Four Discretions to 

Exclude Technically Admissible 

Evidence at a Criminal Trial 

R O B E R T H . T A N H A 


F 

or evidence to be technically admissible 1 in a criminal case, it must 

be relevant 2 and material, 3 and also must not be obnoxious to any of 

the exclusionary rules, such as the opinion evidence rule. Where 

 

B.A, B.Ed, M.A, LL.B (Ottawa). Associate, Wise Law Office, Toronto. The opinions 

expressed herein are my own and do not necessarily represent the views of Wise Law 

Office. I am grateful to Professor David M. Paciocco for his thoughts in the early 

stages of my research, and would also like to acknowledge the editors and anonymous 

peer reviewers of the Manitoba Law Journal for their comments on earlier drafts. 

1 

For a general discussion of the process of the admission of evidence, see David M 

Paciocco & Lee Stuesser, The Law of Evidence, 5th ed (Toronto: Irwin Law Inc, 2008) 

at 26-38 [Paciocco & Stuesser]. 

2 

For evidence to be relevant, it must tend to “increase or diminish the probability of 

the existence of a fact in issue”: R v Arp, [1998] 3 SCR 339 at para 38, 166 DLR (4th) 

296 [Arp]. The relevance spoken of here is that of logical relevance, as opposed to legal 

relevance: see R v Powell (2006), 215 CCC (3d) 274 at para 5 (available on WL Can), 

(Ont SCJ) [Powell]; R v Mohan, [1994] 2 SCR 9 at 10, 114 DLR (4th) 419 [Mohan]; and 

Paciocco & Stuesser, supra note 1 at 31-34. See also Section VI, below. Note that a 

piece of evidence need not possess any minimum amount of probative value to be 

relevant: R v Morris, [1983] 2 SCR 190 at 199-200, 1 DLR (4th) 385 [Morris]; R v 

Corbett, [1988] 1 SCR 670 at 715, 41 CCC (3d) 385 [Corbett]. 

3 

Materiality requires that evidence be directed at a matter in issue in the case at hand. 

Once a piece of evidence is found to be both relevant and material, it is then 

considered to be admissible in principle. To be technically admissible, however, it 

must also not contravene any specific exclusionary rule. The materiality analysis is 

almost always encompassed under the rule of relevance: see Paciocco & Stuesser, supra 

note 1 at 26-27; Powell, supra note 2, at paras 5-6; R v DD, 2000 SCC 43 at para 9, 2 

SCR 275 [DD]; Arp, supra note 2 at para 38.


evidence offends a specific exclusionary rule 4 or is found to be irrelevant 

or immaterial, it must be excluded in all circumstances. 5 Even if evidence 

is technically admissible, 6 it is still subject to being excluded by the trial 

judge based on other considerations, 7 through the trial judge’s 

exclusionary discretion. 8 This residual discretion, like the other rules of 

4 

Exclusionary rules may be found in three sources: the common law, statutes, and the 

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being 

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]: see R v Fitzpatrick 

(1994), 90 CCC (3d) 161 at 181, 32 CR (4th) 343 (BC CA). That said, the 

overwhelming majority are contained in the common law. 

5 

John Sopinka et al, Law of Evidence in Canada, 2d ed (Markham: Buttersworth, 1999) 

at para 2.33 [Sopinka et al]; Powell, supra note 2 at para 6. 

6 

Where there is any doubt on the part of a trial judge as to a finding that evidence is 

not technically admissible for reason that a specific exclusionary rule has been 

violated, the exclusionary discretion can bring some finality to the matter. If the 

evidence’s prejudicial effect is found to outweigh its probative value, a trial judge may 

use that finding to support an earlier decision to exclude: See, for example, R v Welsh 

(2001), 45 CR (5th) 166 at para 34 (available on WL Can) (Man Prov Ct) [Welsh]. 

However, a trial judge should not use such a finding to support an earlier 

decision to admit the evidence. The law is clear: the exclusionary discretion cannot be 

turned to in order to save evidence that has fallen victim to any of the specific 

exclusionary rules: Sopinka et al, supra note 5 at 2.33; Paciocco & Stuesser, supra note 

1 at 39. In the context of hearsay, this means that “no residual discretion to admit 

hearsay evidence exists in the absence of the requirements established by the Supreme 

Court in Khan”: R v Chahley (1992), 72 CCC (3d) 193 at 203, 13 BCAC 213. 

All that said, an “inclusionary discretion” of sorts exercisable in the hands of the 

trial judge, may exist to admit defence evidence. Rules of evidence, including specific 

exclusionary rules and the trial judge’s exclusionary discretion, may be relaxed to 

avoid a miscarriage of justice, thus allowing otherwise excludable evidence to become 

receivable: R v Smyth (2007), 2007 CarswellOnt 3135 (WL Can) at paras 99-102, 2007 

CanLII 17203 (Ont SCJ). For example, in R v Turner, 2005 BCSC 1119 at paras 24-25 

(available on WL Can), the trial judge relies on the exclusionary discretion to support 

an earlier finding to admit defence evidence under the principled approach to 

hearsay. 

7 

See e.g. Powell, supra note 2 at paras 6-7; Corbett, supra note 2 at 714-715,721; R v 

Jabiaranha, 1999 BCCA 690 at para 26, 140 CCC (3d) 242 [Jabiaranha]. See also 

Paciocco & Stuesser, supra note 1 at 38. By “other considerations”, I mean those 

unaddressed or not adequately addressed by other exclusionary rules and which might 

lead to serious unfairness in the trial process. 

8 

Ron Delisle et al, Evidence: Principles and Problems, 9th ed (Scarborough: Thomson 

Canada Ltd, 2010) at 1874-1885; Paciocco & Stuesser, supra note 1 at 32; Sopinka et 

al, supra note 5 at 23.

The Trial Judge's Four Discretions 145 

admissibility mentioned here, is exclusionary in nature. 9 In other words, to 

be ultimately received, evidence has to simultaneously avoid being 

excluded under the rules of relevance and materiality, under specific 

exclusionary rules like the hearsay rule, and under the trial judge’s residual 

discretion. 

The exclusionary discretion power is significant “as it has the 

theoretical potential to render all other rules of evidence obsolete and to 

undermine the role of the trier of fact.” 10 Reliability of evidence has 

traditionally been evaluated narrowly for the purpose of admissibility. It 

was only tested to the extent it fell under a specific exclusionary rule. The 

prevailing justification for this was that assessing reliability of evidence 

relates to weight, and questions of weight are for the trier of fact, who will 

be better positioned at the end of the case to assess weight in light of all 

received evidence. In other words, trial judges acting as triers of law were 

to restrict themselves to questions of admissibility. 11 However, with the 

emergence and expansion of a judicial discretion to exclude, a judge who 

chooses to exclude evidence is doing so based on an assessment of its 

reliability. In other words, he or she is weighing the evidence, albeit in a 

much more restrictive way than a trier of fact. 

Previous literature has held that there are two general types of 

exclusionary discretion: that which exists at common law (which permits 

technically admissible Crown evidence to be excluded where its prejudicial 

effect outweighs its probative value) and that which exists by virtue of the 

Charter 12 and by the Supreme Court of Canada’s decision in R v Harrer 13 

(which permits technically admissible Crown evidence to be excluded 

9 

R v Dawson (1997), 44 CRR (2d) 359 at 369 (available on WL Can) (OCJ Gen Div). 

10 

Paciocco & Stuesser, supra note 1 at 44. See also R v Duguay, 2007 NBCA 65 at para 

54, 320 NBR (2d) 104, for an appellate court’s recognition of this. While Paciocco 

and Stuesser here are speaking of a specific form of exclusionary discretion possessed 

(namely, the general discretion at common law to exclude Crown evidence where its 

prejudicial effect outweighs its probative value), the statement is equally applicable to 

the trial judge’s exclusionary power more broadly. 

11 

Peter K McWilliams et al, Canadian Criminal Evidence, looseleaf (Aurora: Canada Law 

Book, 2008) at 5-10 [McWilliams et al]. 

12 

Charter, supra note 4. 

13 

[1995] 3 SCR 562, 128 DLR (4th) 98, [Harrer cited to SCR].


where this is necessary to ensure a fair trial). 14 This article challenges that 

conception. 

A review of the case law in recent years confirms Delisle et al’s 

previous claim 15 that the law – the common law and the Charter – has 

come to recognize four free-standing general kinds of exclusionary 

discretion to which a trial judge may turn to exclude otherwise admissible 

evidence. This is profoundly different from affairs as late as 1970, where 

only one narrow form of exclusionary discretion was recognized. 16 To be 

clear, this means that a modern trial judge, depending on the 

circumstances, can rely on different, independent forms of discretion to 

effect the same purpose: to exclude what is otherwise admissible 

evidence. 17 Instead of a single form or type of discretion, trial judges 

possess a number of general exclusionary discretions, each of which has a 

separate juridical source. The specific form of discretion which any court 

relies upon (or considers) in a particular case is not always clear. 18 Some of 

14 

See McWilliams et al, supra note 11 at 5-1–5-22; Paciocco & Stuesser, supra note 1 at 

36-37. For case law support, see R v Buhay, 2003 SCC 30 at para 40, [2003] 1 SCR 

631 [Buhay]. For further discussion, see Section VII below. 

It is worth underscoring that some academic commentators view the first 

category of exclusionary discretion as including within it certain sub-categories of 

discretion. So, for example, the discretion applicable to defence evidence, which 

permits evidence to be excluded where its prejudicial effect substantially outweighs its 

probative value (see Section III below), is merely a variant of the general discretion 

that permits evidence to be excluded because the benefits of its admission cannot 

justify the adverse effects its admission will cause: See Paciocco & Stuesser, supra note 

1 at 35-45. 

15 

Delisle et al, supra note 8 at 184-85. 

16 

In R v Wray, (1970), [1971] SCR 272 at 293-295 (per Martland J), 11 DLR (3d) 673, 

[Wray], the majority of the Supreme Court found an exclusionary discretion 

exercisable in the hands of trial judges but heavily circumscribed its use, holding that 

improperly obtained evidence did not fall within its remit. Instead the discretion 

could only be exercised against evidence that could be characterized as gravely 

prejudicial, of tenuous admissibility, and of trifling probative value, a high standard 

indeed. For further discussion of Wray, see Section II, below. According to Paciocco 

& Stuesser, supra note 1 at 35, for most of the past century judges “were considered to 

have little to no discretion to exclude technically admissible evidence.” 

17 

The trial judge’s determinations whether the requirements of relevancy, materiality, 

and the requirements of admittance under any specific exclusionary rules are met on 

the facts of a particular case is not the discretion spoken of here. 

18 

See, for example, R v SGT, 2008 SKCA 119 at para 97, 314 Sask R 44; R v Riley, 

[2009] OJ No 2474 (QL) at paras 22-24, 2009 CanLII 30455 (SCJ) [Riley]; R v


this may be explained by the fact that some overlap exists between 

discretions 19 – they are not always easily distinguished, nor their methods 

of operation easily understood. 20 

More importantly, an analysis of the four types of exclusionary 

discretions identified by Delisle et al provides some significant new 

insights into how each operates, including what their scope is and what 

areas of their operation remain unclear. 21 While this article follows the 

lead of those legal scholars and considers the four exclusionary discretions 

identified by them, it expands upon their brief commentary by thoroughly 

comparing each of the discretions, as opposed to simply considering each 

separately. By discussing each of the exclusionary discretions and making 

the necessary links with other stages of the admissibility of evidence 

analysis, a better understanding of how these four discretions operate is 

developed. 

This article is divided into nine sections. Section II will examine the 

general discretion to exclude Crown evidence that can be implied into a 

statute. Section III will review the general discretion at common law to 

exclude Crown evidence where its prejudicial effect outweighs its probative 

value. Section IV examines the general discretion at common law to 

exclude defence evidence where its prejudicial effect substantially 

outweighs its probative value. Section V canvasses the discretion 

recognized in law that permits improperly obtained evidence to be 

Hawkins, [1996] 3 SCR 1043 at para 85, 141 DLR 193 [Hawkins]; R v Courchene 

(1999), 135 Man R (2d) 267 at para 33 (available on WL Can) (QB). 

19 

Paciocco & Stuesser, supra note 1 at 36-37. For extensive discussion of this, see 

Section IV and Conclusion below. 

20 

See Harrer, supra note 13 at paras 41-42, per McLachlin and Major JJ (concurring) 

which exemplify these difficulties. While many of the exclusionary discretions 

discussed in this article are mentioned or seem to be alluded to by these two justices 

in their discussion of the trial judge’s exclusionary discretion, they seem to conflate 

what this article recognizes as different, and separate, kinds of discretion. As an 

example, they appear to conflate the exclusionary discretion existing at common law 

exercisable against Crown evidence with that existing within a statutory rule of 

admissibility, namely section 12 of the Canada Evidence Act, RSC 1985, c C-5 [Canada 

Evidence Act], also applicable against Crown evidence: see Sections I and II below. 

What is more, their reasons leave questions concerning the scope of the different 

exclusionary discretions, and of their relationship to one another unanswered, 

including any possible overlap, questions which this article eagerly takes up. 

21 

Delisle et al, supra note 8.


excluded to ensure a fair trial, arising from the Supreme Court case of 

Harrer and the Charter. In Section VI, the general discretion employable 

against Crown evidence where its prejudicial effect exceeds its probative 

value is re-visited, and several reasons offered to explain why it is the 

discretion most often engaged by the trial judge. In Section VII, the 

question of where the common law discretions should be viewed as falling 

in the general admissibility of evidence analysis is raised and the argument 

made that the discretion is best conceived of as a free-standing 

exclusionary rule, to be considered after relevance and technical 

admissibility have been established. In Section VIII, the idea that the trial 

judge’s exclusionary discretion is best understood as comprising of four 

separate discretions is tested against competing viewpoints and shown to 

be the preferable approach. Section IX highlights the most important 

findings about the trial judge’s exclusionary discretion revealed by this 

article, and concludes that the trial judge’s discretion remains important 

in ensuring a fair trial. 

II. THE GENERAL DISCRETION TO EXCLUDE CROWN 

EVIDENCE AS IMPLIED INTO A STATUTE 

The first type of exclusionary discretion rests upon judicial decisions 

that have interpreted statutory provisions dealing with the admittance of 

evidence in a criminal trial in a specific way. Generally, these decisions 

have interpreted different statutory provisions, contained in statutes such 

as the Canada Evidence Act 22 and the Criminal Code of Canada, 23 as 

providing for a single exclusionary discretion. This discretion, exercisable 

in the hands of the trial judge, allows for the exclusion of Crown evidence 

where its prejudicial effect outweighs their probative value despite meeting 

the required statutory criteria for admissibility. 24 This balancing of 

22 

CEA, supra note 20. 

23 

Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. 

24 

Examples of such statutory provisions include: 

Ss 9(1) and 11 of the Canada Evidence Act (providing for the admission of prior 

inconsistent statements): see R v Woodcock, 2010 ONSC 1972); Section 12 of the 

Canada Evidence Act (providing for the admission of evidence of prior convictions 

against an accused who denies the fact of any such convictions): see Corbett, supra note 

2; R v Charland (1996), 187 AR 161, 110 CCC (3d) 300 [Charland cited to AR]; S 715


prejudicial effect against probative value is always undertaken with an eye 

towards ensuring a fair trial process. 25 In short, “the fact that the statute 

makes such evidence admissible in no way requires its reception in 

evidence.” 26 

Supreme Court decisions over the years have explained the exact 

source of this discretion differently, which may be due in part to the 

different language used within the various statutes themselves. 27 In Corbett, 

of the Criminal Code (providing for the admission of evidence previously taken): see R 

v Potvin, [1989] 1 SCR 525 at 547–555, 47 CCC (3d) 289, [Potvin]; Hawkins, supra 

note 18 at para 53. S 715.1 of the Criminal Code (providing for the admission of 

videotaped statements by victims or witnesses under 18 about sexual offences): see R v 

L (DO), [1993] 4 SCR 419, 85 CCC (3d) 289 [L (DO) cited to SCR]. 

25 

R v Saroya (1994), 36 CR (4th) 253 at 256, 76 OAC 25 (CA) [Saroya]. This is equally 

true of the balancing exercise that occurs with respect to the exercise of the trial 

judge’s exclusionary discretion at common law: see Section II below. 

26 

Corbett, supra note 2 at 733, per La Forest J (dissenting). See also Potvin, supra note 24 

at 553–554. 

27 

In Corbett, ibid, La Forest J, in recognizing a judicial discretion to exclude, put some 

emphasis on the fact that section 12(1) of the Canada Evidence Act, the statutory 

provision at issue, provides that a witness may be questioned on his previous 

convictions, and so is therefore permissive as opposed to obligatory. In other words, 

the word may is directed to the trial judge, and confers upon him a discretion not to 

allow previous conviction evidence to be received where its probative value is 

outweighed by its prejudicial value: Canada Evidence Act, supra note 20, s 12(1). 

Similarly, in Potvin, supra note 24, at 547-548, the majority of the Supreme Court 

held that the fact that the then section 643(1) (now section 715) of the Criminal Code 

provided that prior testimony “may” be read as evidence, as opposed to “shall” be read 

as evidence—what the provision read prior to the 1955 revisions—conferred a 

discretion upon a trial judge not to allow previous testimony to be admitted “in 

circumstances where its admission would operate unfairly to the accused.” The Court, 

however, was careful to circumscribe the scope of this kind of discretion: “…the 

discretion to prevent unfairness is not a blanket authority to undermine the object of 

section 643(1) by excluding evidence of previous testimony as a matter of course”. 

Notably, it left open the question of whether such a discretion could be said to have 

existed prior to the 1955 amendments, in the context of a section 643(1) which used 

obligatory language as opposed to permissive language. 

Based on the reasons of a majority of judges of the Supreme Court, even absent 

this, a judicial discretion to exclude would likely have been read in, in any event: at 

paras 29-41. This conclusion is buttressed by the Supreme Court’s decision in L (DO): 

supra note 24 at 428-429. There, the Court incorporated a judicial discretion to 

exclude into then-section 715.1 of the Criminal Code despite the obligatory language of 

the section: see L (DO), supra note 24 at 430.


the first case in which such a statutory discretion was recognized, the 

Supreme Court interpreted section 12 of the Canada Evidence Act as 

“leaving room” for the exclusionary discretion existing at common law to 

operate. 28 In contrast, in Potvin, the Supreme Court interpreted the 

provision at issue, section 715 of the Criminal Code, as “conferring” an 

exclusionary discretion on a trial judge. 29 In the later case of Hawkins 30 a 

plurality of the Supreme Court, citing Potvin, held that section 715 

“preserves” a residual discretion to exclude. 31 Finally, in L (DO), the 

Supreme Court interpreted the provision at issue, then section 715.1 of 

the Criminal Code, as “incorporating” a judicial discretion to exclude. 32 

Section 715.1 was also the subject of some discussion in lower courts, 33 

28 

Corbett, supra note 2 at 688, 691, per Dickson CJC, Lamer J, Beetz J, and La Forest J 

(dissenting). 

29 

Potvin, supra note 24 at 552. 

30 


31 


32 

Supra note 24 at para 3. For the then-text of section 715.1 of the Criminal Code, see L 

(DO), supra note 24 at 430, per L’Heureux Dube and Gonthier JJ 

33 

In R v Toten, (1993), 14 OR (3d) 225 at 249-252, 83 CCC (3d) 5 [Toten cited to OR], 

the Ontario Court of Appeal offered an entirely different perspective on what was 

then section 715.1 of the Criminal Code than the Supreme Court does in L (DO). 

Specifically, it seems to find two overlapping statutory discretions operating at the 

same time within this section of the Criminal Code. 

First, the statutory provision leaves room for the common law discretion 

exercisable against Crown evidence to operate: where the prejudice to the trial process 

outweighs its probative value the evidence must be excluded. The Court underlined 

that this first discretion is constitutionally enshrined by section 7 of the Charter. 

Second, according to the Court, there is also a discretion implied into section 

715.1 that allows videotaped evidence to be excluded “which does not serve the 

purpose of the statute”: Toten at 252. The Court identified the purpose of this 

statutory rule of admissibility as being “to enhance the truth-finding function of the 

trial.”: Toten at 250. Even though the Court was quick to recognize two overlapping 

discretions, it was just as quick to circumscribe their use, stating that the inclusionary 

rule created by then section 715.1 (providing for the admission of videotaped 

statements by victims or witnesses under 18 about sexual offences) should only be 

displaced sparingly. 

In my own view, the first discretion identified by the Court in Toten is sufficient 

to exclude evidence which does not serve the purpose of the statute. The catalogue of 

factors considered within the balancing or weighing exercises of most, if not all, 

statutory discretions have been clearly crafted in support of the statutory provision. 

Incorporating a second exclusionary discretion within statutory rules of admissibility


though that discussion (and the Supreme Court’s) was largely superseded 

by the amendment of section 715.1 to provide an explicit statutory 

discretion. 34 

Regardless of how the statutory discretion to exclude is described to 

exist in law, it is not expressly created by statute. There is no provision in 

the statute that specifically provides for the operation of an exclusionary 

discretion, no provision that states that a trial judge may refuse to admit 

the evidence (though there is no provision that forbids it either). 35 A 

statutory provision that expressly states that the trial judge may refuse to 

admit evidence is best regarded as a purely statutory discretion to exclude 

– and should not be confused with the kind of discretion discussed here. 36 

would be redundant and needlessly complicated. 

34 

Section 715.1 has been amended to provide the trial judge with a wholly statutory 

discretion to exclude video-recorded evidence where he or she is of the opinion that 

this is necessary to preserve the proper administration of justice, so the discussion 

herein is largely now of only academic interest. The exclusionary discretion 

incorporated into the section by the Supreme Court in L (DO) has been superseded 

and no longer exists within that section: R v Ortiz, 2006 ONCJ 72 at paras 25-26 

(available at WL Can) [Ortiz]. See also Criminal Code, supra note 23, s 715.1, as 

amended. 

Though the catalogue of factors laid down in L (DO) to be considered in 

deciding whether to apply the implied exclusionary discretion within the former 

section 715.1 may still be relevant in deciding to apply the express exclusionary 

discretion contained within the new section 715.1, the amended section undoubtedly 

reduces the ambit of the discretion by requiring that a higher standard be met; the 

trial judge must find that the admission of the video-recorded evidence would 

interfere with the proper administration of justice: Ortiz at para 32. See also Criminal 

Code, supra note 23, s 715.1, as amended. 

35 

This point was made by La Forest J (dissenting) in Corbett, supra note 2 at 731-732 in 

respect of section 12 of the Canada Evidence Act. A reading of the reasons provided by 

the rest of the court indicates that the other five judges (Dickson CJC, Lamer J (as he 

then was), Beetz J, McIntyre J, and Le Dain J) who took part in the judgment agreed 

with La Forest J’s point. See also Delisle et al, supra note 8 at 181. 


Rothman v R, [1981] 1 SCR 640 at 695-697, 121 DLR (3d) 578 (per Lamer J’s 

discussion of then section 178.16 of the Criminal Code) [Rothman]. For example, the 

new wording of section 715.1 of the Criminal Code (supra note 23, as amended.) 

provides that the presiding judge or justice may refuse to admit the evidence if he or 

she “is of the opinion that admission of the video recording in evidence would 

interfere with the proper administration of justice.”


A. The Appearance of the Implicit Statutory Discretion to 

Exclude and Its Unique Operation 

The statutory form of exclusionary discretion was first recognized by a 

majority of members of the Supreme Court of Canada in Corbett. 37 In that 

case, the matter at issue was the constitutionality of section 12 of the 

Canada Evidence Act, which not only allows the Crown to cross-examine an 

accused as to any prior convictions he or she might have, but also to prove 

any such convictions where the accused refused to answer questions 

pertaining to earlier conviction(s) or denied the existence of any such 

convictions. 38 

A majority of judges on the Supreme Court, while agreeing that 

section 12 of the Canada Evidence Act should be read as leaving room for 

the exclusionary discretion already existing at common law to operate, 39 

disagreed on whether or not section 12, standing alone (that is without an 

exclusionary discretion), violated the Charter’s fair trial protection housed 

in section 11(d), which guarantees that any person charged with an offence 

is to be presumed innocent and to receive a fair trial. 40 In the end, the lead 

37 

Corbett, supra note 2 at 692, 698, 732. Dickson CJC, Lamer J (concurring), Beetz J 

(concurring separately), and La Forest J (dissenting) all recognized the existence of 

such a discretion, though only La Forest J believed it should be exercised in favour of 

Corbett. McIntyre and Le Dain JJ (concurring) refused to recognize such a discretion, 

holding that the legislative provision at issue, namely Section 12 of the Canada 

Evidence Act, was unambiguous in leaving no room for such a discretion to operate. 

Estey J, while present, took no part in the judgment. 

38 

Canada Evidence Act, supra note 20, s 12(1). It is worth noting that for this section to 

be implicated, an accused must first choose to testify. 

39 

Corbett, supra note 2 at 688, 691, per Dickson CJC, Lamer J, Beetz J, and at 701, per 

La Forest J (dissenting). 

40 

Charter, supra note 4, s 11(d). Beetz J argued that not reading in such a discretion to 

exclude would violate sections 7 and 11(d): Corbett, supra note 2 at 699. Two of the 

other judges, Dickson CJC and Lamer J, disagreed. They believed, however, that a 

discretion had to be read in to prevent a possible untoward effect of section 12 of the 

Canada Evidence Act which could deprive the accused of a fair trial in a sense not 

caught by the Charter. Put simply, the introduction of evidence of previous convictions 

could divert the jury from the task of deciding the case on the basis of admissible 

evidence relevant to the proof of the charge faced by the accused: Corbett, supra note 2 

at 688. La Forest J (dissenting) held that reading in such a discretion would ensure 

that section 12 of the Canada Evidence Act remained constitutionally valid: Corbett, 

supra note 2 at 745-746.


opinion, 41 concluded that the exclusionary discretion should not be 

exercised on the facts of the case to prevent Crown counsel from posing 

questions to Corbett on his past criminal convictions. This would have left 

the jury with a distorted picture of the facts as related to the principal 

factor in the case, credibility. 42 

In reaching its decision not to exclude the evidence of Corbett’s 

previous convictions, the court considered the impact of the evidence on 

the fairness of the trial process and to the accused. 43 In assessing this, the 

court weighed the probative value of allowing the evidence of Corbett’s 

previous convictions against the prejudicial effect that might arise through 

this allowance. 44 

The answer to the question of whether this weighing exercise should 

be employed in every case involving statutory rules of admissibility that are 

interpreted as leaving room for an exclusionary discretion to operate in 

deciding whether evidence is so unfair as to force exclusion, is probably 

no, in light of the Supreme Court’s holding in Potvin. 45 There, the 

majority of the Supreme Court, in the context of section 643(1) (now 715) 

of the Criminal Code (which allows prior testimony of a witness to be read 

into evidence) identified a different weighing exercise: 

…the discretion should only be exercised after weighing what I have referred to as 

the “two competing and frequently conflicting concerns” of fair treatment of the 

41 

Corbett, supra note 2 at 670-699, per Dickson CJC, Lamer J, and Beetz J. 

42 

Corbett, supra note 2 at 698. 

43 

With respect to the common law discretion exercisable against Crown evidence, the 

focus of courts has shifted over the years from looking at fairness as concerns the 

accused to one which also considers fairness as concerns the trial process more 

broadly: see Section III discussion below. With respect to the statutory kind of 

discretion, courts do not seem to have oscillated as much. For example, in both 

Corbett, supra note 2, and Potvin (supra note 24) the Supreme Court goes beyond 

fairness as concerns solely the accused. 

44 

In so doing, the Supreme Court noted that a trial judge must consider a specific 

catalogue of factors particular to this context, agreeing in this regard with the list 

appearing in the reasons of La Forest J (dissenting): Corbett, supra note 2 at paras 740– 

744. For a thorough listing and brief analysis of cases illustrating the inherent 

difficulty in conducting the balancing of prejudice against probative value based on 

the catalogue of factors enumerated in Corbett, see Charland, supra note 24. 

45 

Supra note 24.


accused and society’s interest in the admission of probative evidence in order to 

get at the truth of the matter in issue. 46 

It is also worth noting that in R v Toten, 47 the Court of Appeal for 

Ontario posited a different exercise in respect of one of the exclusionary 

discretions said to exist within then section 715.1 of the Criminal Code: 

where admitting the evidence would be contrary to the purpose of the 

statute, it must be excluded. 

While the weighing exercise laid down in Potvin obviously involves 

considerations of probative value and prejudice, its words are decidedly 

different than those used to describe the statutory discretion recognized in 

Corbett in the context of section 12 of the Canada Evidence Act. The words 

chosen by the Supreme Court in Potvin appear to narrow the ambit of the 

statutory discretion recognized there. For example, the weighing exercise 

in Corbett, balancing the evidence’s probative value against its prejudicial 

effect, seems to leave room for considering the fairness of its introduction 

to third parties or to the victim. 48 The standard in Potvin, however, only 

anticipates consideration to the accused and to society in terms of whether 

the admission of probative evidence is necessary in order to get at the 

truth of the matter. 

Consistent with this idea of a narrower ambit to the discretion, the 

Supreme Court in Potvin identified two specific situations at which the 

statutized exclusionary discretion was aimed: first, evidence may be 

excluded where there has been unfairness in the manner in which it was 

obtained, and second where the admission of the evidence would have a 

significant effect on the fairness of the trial itself. Though the lack of a 

bright line between the two grounds upon which evidence under this 

46 

Potvin, supra note 24 at 553. Curiously, the second concern – society’s interest in the 

admission of probative evidence in order to get at the truth of the matter in issue – is 

also factored into the balancing exercise that occurs within the exclusionary rule 

housed by subsection 24(2) of the Charter, which allows the exclusion of 

unconstitutionally obtained evidence in certain circumstances: Paciocco & Stuesser, 

supra note 1 at 350; R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant]. 

47 


48 

The common law discretion which permits Crown evidence to be excluded where its 

prejudicial effect outweighs its probative value (see Section III below) includes a 

consideration of these things as well: see Mohan, supra note 2 at 20–21.


discretion can be excluded is plain, 49 they are not necessarily mutually 

exclusive. 

In L (DO) the Supreme Court adopted the general weighing exercise 

espoused in Corbett within the context of then-section 715.1 of the 

Criminal Code. 50 Where the evidence’s prejudicial effect outweighed its 

probative value, it was to be excluded. 

The net effect of the Supreme Court’s decisions seems to be that in 

the context of section 12 of the Canada Evidence Act and then section 

715.1 of the Criminal Code the balancing of probative value against 

prejudice 51 is the weighing exercise to be employed in deciding whether to 

exclude the impugned evidence, while in the context of section 715 of the 

Criminal Code the narrower weighing exercise identified by the Supreme 

Court in Potvin is the test to be employed. 52 

Returning to Corbett, the question of how the Supreme Court could 

justify implying an exclusionary discretion into section 12 of the Canadian 

Evidence Act in the absence of express language in the statute is worthy of 

specific treatment. Beetz J’s concurring reasons isolated the central issue 

facing the court: should section 12 of the Canada Evidence Act be 

construed so as to leave room for the trial judge’s exclusionary discretion? 

This would prevent cross-examination of an accused as to prior 

convictions where the probative value of such evidence in terms of 

49 


50 

Supra note 24. For text of former section 715.1 of the Criminal Code, see L (DO), supra 

note 24 at 430, per L’Heureux Dube and Gonthier JJ 

51 

This is the weighing exercise by which the exclusionary discretion existing at common 

law exercisable against Crown evidence operates: see Section II discussion below. It is 

also the same basic standard by which the exclusionary discretion existing at common 

law employable against defence evidence operates, though unlike the common law 

discretion applicable to Crown evidence, which only requires the prejudice of the 

impugned evidence to outweigh its probative value for exclusion to result, in this case 

the prejudice of the impugned evidence must substantially outweigh the probative 

value for exclusion to result: see Section III discussion below. 

52 

Undoubtedly, the different weighing exercise propounded by the Supreme Court in 

all these cases reveal the Court’s struggle with how to measure and weigh probative 

value against prejudicial effect, in the context of a judicial discretion to exclude. Not 

surprisingly, high courts in other jurisdictions, including the House of Lords, have 

been similarly challenged: see R v Sang, [1979] 2 All ER 1222, 1980 AC 402 (available 

on BailII).


credibility was low but the potential prejudice to an accused was high. 53 

While a majority of judges, including Beetz J held it should, McIntyre and 

Le Dain JJ strongly asserted that without a Charter infringement (which 

they did not find on the facts) the doctrine of parliamentary supremacy 

required the strict application of section 12, leaving no room for the 

recognition of such an exclusionary discretion exercisable in the hands of 

the trial judge. They went so far as to say that construing the section so as 

to provide for such a discretion would usurp Parliament’s function 

because the court would, in effect, be amending the Canada Evidence Act 

and preventing Parliament from exercising its power to alter the common 

law through clear legislative enactment. 54 

This latter contention by McIntyre and Le Dain JJ requires comment, 

as it implicitly raises another form of discretion which was in place and 

recognized at common law at the time. This kind of discretion, to be 

discussed next, currently is the broadest of the four discretions, and unlike 

the discretion recognized in Corbett, derives its authority from the 

common law, specifically the decision in Wray, 55 though the balancing 

exercise by which it operates has been significantly relaxed by virtue of the 

Supreme Court’s decision in R v Seaboyer. 56 

McIntyre and Le Dain JJ identified this as the only discretion in law 

that exists to exclude otherwise admissible evidence in a particular case. 

But as they accurately point out, its common-law derived authority 

prevents it from having the legal stature to overcome the clear statutory 

pronouncement in section 12 of the Canada Evidence Act. Nor did they 

believe the court could “elevate a general common law discretionary power 

to the level of an amendment to a specific and clear provision” without 

compromising the principle of parliamentary supremacy. 57 

The interpretation of the statute by a majority of members of the 

Supreme Court so as to allow for the continued operation of an 

exclusionary discretion on the part of the trial judge would overcome the 

53 


54 

Corbett, supra note 2 at 699-701. 

55 


56 

[1991] 2 SCR 577, 83 DLR (4th) 193 [Seaboyer cited to SCR]. This has led to a 

significant increase in the frequency with which it is exercised to exclude Crown 

evidence. 

57 

Corbett, supra note 2 at 699-700.


first noted problem. This would elevate (as it were) a common law general 

discretionary power to the level of statutory law, in effect creating a new 

form of exclusionary discretion which could overcome the clear statutory 

dictates of section 12. The lead opinion 58 endorsed La Forest J’s 

characterization of the exclusionary discretion as being derived from the 

common law by virtue of the decision in Wray, and as continuing to 

subsist since the language in section 12 did not expressly abolish it. 59 In 

the view of a majority of the Justices, this absence meant that the section 

would have to be read as leaving room for the common law discretion to 

operate, albeit in a new and superior form, in order that a “fair trial” could 

be ensured for the accused. This interpretation of section 12 would 

minimize the violence done to the doctrine of parliamentary supremacy 

feared by McIntyre and Le Dain JJ, because there was no question that 

section 12 failed to indicate that the exclusionary discretion possessed by 

the trial judge should be removed, though clearly the Supreme Court’s 

interpretation was elevating the common law principle recognized in Wray 

to a new stature, that of statutory law. 

What is more, the balancing exercise by which the discretion existing 

within section 12 of the Canada Evidence Act was said to operate, namely a 

balancing of prejudice against probative value, was a departure from the 

Wray standard, which only allowed for the exclusion of admissible 

evidence where its probative value was low, and its prejudice very high. 60 

As La Forest and Dickson JJ (concurring) stated in Potvin (albeit in the 

context of the statutory discretion contained in section 715 of the Criminal 

Code) trial judges may exclude evidence under this discretion even if its 

probative value is more than modest. 61 This new balancing exercise was 

also a harbinger of things to come in terms of the scope of the common 

law exclusionary discretion, which would come to embrace the same 

exercise. It is clear that the exclusionary discretion existing within section 

12, unlike the Wray formulation, can exclude evidence even where the 

strict requirements for exclusion noted in Wray are absent. 62 This seems to 

58 


59 

Corbett, supra note 2 at 730, per La Forest J (dissenting). 

60 

R v Richard (1980), 56 CCC (2d) 129 at 136, 25 BCLR 29 (BC CA) [Richard] 

(describing the standard by which the Wray discretion operates). 

61 


62 

See Section III-A below for an explanation of the restrictive tripartite standard that


be equally true of the statutory discretions recognized by the Supreme 

Court within the contexts of sections 715 and 715.1 of the Criminal Code 

in Potvin and L (DO). 

B. Why It Was Necessary for the Supreme Court to 

Recognize This Kind of Discretion 

Before turning to the next form of discretion, it is of some importance 

to spell out why reading in room for “the trial judge’s exclusionary 

discretion” to operate within a statutory rule of admissibility was necessary. 

First, ensuring an accused person a fair trial, as required and contemplated 

by the Charter, 63 means that statutorily admissible evidence sometimes has 

to be excluded. As two Supreme Court justices opined, “[The] judicial 

discretion [conferred by section 715.1 of the Criminal Code] has its 

foundation in the judge’s duty to ensure a fair trial for the accused.” 64 The 

recognition of a statutory exclusionary discretion would strain against 

Charter challenges on the basis that the mechanical application of the 

statutory rule by the court had led to an unfair trial and a breach of 

sections 11(d) and 7 65 of the Charter. The Supreme Court, per L’Heureux- 

Dube and Gonthier JJ (concurring), referring to Baron v Canada, 66 seemed 

attuned to this point in R v L(DO): “…this court has held that residual 

judicial discretion may be constitutionally required in order to provide a 

mechanism for balancing the rights of the accused and the state.” 67 In the 

had to be met for evidence to be excluded under the Wray discretion. 

63 

As a result of Harrer, supra note 13 at paras 21-24 trial judges now also have a 

“constitutionalized common law duty,” which exists apart from the Charter, to ensure 

a fair trial in a sense that goes beyond that strictly contemplated by the Charter: see 

Section IV discussion below. 

64 

L (DO), supra note 24 at probably 461, per L’Heureux Dube and Gontheir JJ 

(concurring). 

65 

Section 11(d) of the Charter, supra note 4 provides an accused with a right to a fair 

trial. It reads: “any person charged with an offence has the right to be presumed 

innocent according to law in a fair and public hearing by an independent and 

impartial tribunal” [emphasis added]. The Supreme Court of Canada has also held 

that an accused’s right to a fair trial is “a principle of fundamental justice” and thus 

entitled to protection under section 7 of the Charter: R v Pearson, [1992] 3 SCR 665 at 

682-683, 77 CCC (3d) 124. 

66 

[1993] 1 SCR 416, 99 DLR (4th) 350. 

67 

L (DO), supra note 24 at 461.


context of that case, the majority of the Supreme Court stressed that the 

incorporation of a judicial discretion to exclude within section 715.1 

would ensure that “s. 715.1 is consistent with fundamental principles and 

the right to a fair trial protected by ss. 7 and 11(d) of the Charter.” 68 

There is also merit to the broader point made by Dickson CJC and 

Lamer J in Corbett that a fair trial encompasses more than what is 

envisioned by section 11(d) or by other Charter sections. For example, 

certain prejudices to the trial process or to the accused that might arise 

from the application of a statutory rule of admissibility, while not 

necessarily cognizable under the Charter, should be remediable by the trial 

judge – the ultimate protector of trial fairness – through the exercise of his 

or her residual exclusionary discretion. 69 

Second, the discretion is necessary to ensure the principles of fairness 

underlying the law of evidence are realized. As came to be understood with 

respect to common law rules of admissibility, rules of admissibility created 

by statute or otherwise cannot be applied mechanically in all 

circumstances. This would not ensure that the goals underlying the law of 

evidence, not least ensuring the accused’s right to a fair trial, 70 are met. 71 

“A discretion exists because existing rules do not cover every situation, and 

may not adequately protect an accused’s right to a fair trial.” 72 The 

Supreme Court in Potvin, in recognizing the existence of a statutory 

discretion in the then section 643(1) (now section 715), so cautioned: “I 

believe that the preferable interpretation of s. 643(1) …confers on [the trial 

judge] a statutory discretion to prevent any unfairness that could otherwise 

result from a purely mechanical application of the section.” 73 [emphasis 

added]. 

68 


69 

Corbett, supra note 2 at 685-697, per Dickson CJ and Lamer J. 

70 

Ibid at 692, per Dickson CJ and Lamer J. 

71 

Paciocco & Stuesser, supra note 1 at 36. 

72 

R v Buric (1996), 28 OR (3d) 737 at 750, 106 CCC (3d) 97 (CA). 

73 

Supra note 24 at 550. I submit that, in light of the Potvin court’s admonition that the 

statutory discretion not be used as a matter of course and their identification of two 

sets of circumstances in which the discretion is exercisable, the court’s use of the 

words “any unfairness” in the above quoted passage should be read with caution and 

not be interpreted as encapsulating a broad notion of fairness. The fact is, in most 

circumstances, evidence made admissible pursuant to section 715 of the Criminal Code 

will be received.


In sum, undoubtedly there is a need for the trial judge to possess a 

residual discretion to exclude any evidence where its probative value is 

exceeded by its prejudicial effect. To require that a trial judge be 

constrained by statutory rules of admissibility, besides being inconsistent 

and arbitrary relating to the equivalent common law rules, would 

undermine the trial judge’s fundamental duty to ensure a fair trial process 

for all parties, especially the accused. This requires ensuring that the 

probative value of evidence received is not outweighed by its 

corresponding prejudice. 

III. THE GENERAL DISCRETION AT COMMON LAW TO 

EXCLUDE CROWN EVIDENCE 

The second discretion is the trial judge’s general discretion at 

common law to exclude Crown evidence where its prejudicial effect 

outweighs its probative value. 74 It owes its existence to Wray, 75 though 

It is fair to say, therefore, that not all statutory discretions are created equal: The 

scope of the exclusionary discretion incorporated into section 715, in light of the 

statements made by the Supreme Court in Potvin, is likely narrower than that 

incorporated into either (former) section 715.1 of the Criminal Code or section 12 of 

the Canada Evidence Act. Having said that, it paradoxically anticipates excluding some 

improperly obtained evidence which is unlike the Supreme Court’s discussions of the 

exclusionary discretions incorporated into section 715.1 of the Criminal Code and 

section 12 of the Canada Evidence Act, in L (DO) and Corbett, where there is no 

mention of either being exercisable against improperly obtained evidence. In this way, 

the exclusionary discretion incorporated into section 715 of the Criminal Code may be 

viewed as being wider than those discretions to exclude incorporated into (former) 

715.1 and section 12 of the Canada Evidence Act. 

Despite the Supreme Court’s concern in Potvin that the scope of the statutory 

discretion in question be kept within strict bounds, it rejected the Wray formulation 

as the weighing exercise to be used in deciding whether the statutory discretion should 

be exercised on any given set of facts. The Court criticized it as being too restrictive, 

stressing that a trial judge’s emphasis should be on: “The protection of the accused 

from unfairness rather than the admission of probative evidence ‘without too much 

regard for the fairness of the adjudicative process’ should be the focus of the trial 

judge’s concern”: Potvin, supra note 24 at 553. 

74 

Paciocco & Stuesser, supra note 1 at 38-39, recognize this form of discretion. 

75 

Admittedly in Wray, the discretion’s existence was only recognized in the obiter 

comments of Martland J. Despite this, there is no question as to its existence: see 

Boulet v The Queen, [1978] 1 SCR 332, 75 DLR (3d) 223; Paciocco & Steusser, supra


since that case its ambit has grown substantially. 76 In Wray, the majority 

decision of the Supreme Court, per Martland J, held that a trial judge has 

the discretion to exclude legally admissible evidence that would operate 

unfairly, arising from their duty to ensure the accused receives a fair trial. 77 

A trial judge exercising that discretion is limited to ensuring the trial itself 

is fair. In short, “a judge cannot look beyond the trial itself in exercising 

this discretion.” 78 In other words, a trial judge has no jurisdiction to 

exercise this discretion to exclude evidence for reason only that it was 

obtained in an improper manner, since this arose during pre-trial 

procedures. 79 

A. The Wray Exclusionary Discretion 

In Wray, prejudice was defined for the purpose of exclusion as 

evidence that could operate unfairly and unjustly toward the accused, as 

opposed to merely unfortunately. 80 The Supreme Court, obviously 

wanting to restrict the scope of this discretion, purportedly to “preserve 

the integrity of the rules of evidence,” 81 held that in order for a judge to 

exercise his or her exclusionary discretion the evidence in question had to 

be gravely prejudicial, of tenuous admissibility, and of trifling probative 

note 1 at 37; Corbett, supra note 2 at 742. See also McWilliams et al, supra note 11 at 5- 

2. 

76 

McWilliams et al, supra note 11 at 5-1– 5-2. The authors correctly attribute the growth 

in the scope of the discretion to the seminal decision in Seaboyer, supra note 56. For 

further comment: see Sopinka et al, supra note 5 at 31; Corbett, supra note 2 at 739, 

per La Forest J (dissenting). 

77 

Wray, supra note 16 at 293. 

78 

AF Sheppard, “Restricting the Discretion to Exclude Admissible Evidence” (1971) 14 

Crim LQ 334 at 336. 

79 

Ibid. Under existing law, there is an appreciation that improperly obtained evidence 

can lead toward an unfair trial, requiring the trial judge to exercise his residual 

exclusionary discretion to prevent such an occurrence. Unlike past practice, pre-trial 

procedures and the trial itself are no longer treated as separate water-tight 

compartments in relation to decisions whether to exercise an exclusionary discretion 

based on the anticipation of an unfair trial. 

80 

Wray, supra note 16 at 293-295. See also Corbett, supra note 2 at 722, per La Forest J 

(dissenting). 

81 

David M Paciocco, “The Proposed Canada Evidence Act and the “Wray Formula”: 

Perpetuating an Inadequate Discretion” (1983) 29 McGill LJ 141 at 143 [Paciocco, 

“Wray Formula”].


force. 82 It was acknowledged that legally admissible evidence “could cause 

errors in reasoning and judgment” 83 on the part of the trier of fact. 

Situations arose where certain evidence (an inflammatory picture, for 

example) would likely cause errors in judgment if received, despite being 

technically admissible. 

This high tripartite standard for characterizing evidence as sufficiently 

prejudicial to justify exclusion was not to survive – as Paciocco notes, 

significantly confining the scope of the discretion undermined the 

discretion’s very purpose of preventing the unfair operation of evidence 

that was legally admissible. 84 Much of the very evidence the exclusionary 

discretion was meant to be employed against could not be characterized as 

gravely prejudicial, of tenuous admissibility, and of trifling probative value. 

Indeed, in Wray the Court held that the improperly obtained evidence in 

that case – an involuntary confession that led to the discovery of the 

murder weapon – was not excludable since the fact that it might “operate 

unfortunately” to the accused was not enough. It had to “operate unfairly” 

to the accused, which was only possible where the impugned evidence 

possessed the three aforementioned attributes, 85 a rare occurrence indeed. 

Unlike the exclusionary discretions recognized in law today, the 

discretion in Wray was unduly focused on the probative value of the 

evidence instead of on the circumstances surrounding how it was 

obtained. If the evidence was of more than “trifling” probative value then 

no matter how improperly it was obtained; or how prejudicial it might be 

to the accused’s case or the fairness of the trial; or how much its 

admittance might cause errors in reasoning and judgment, it would be 

received into evidence. 86 In short, “the concern for probative evidence” 

outweighed “the concern for adjudicative fairness as between the Crown 

and its agents and an accused person.” 87 

As a result of this fundamental flaw, the standard for determining 

whether something was sufficiently prejudicial to justify exclusion was 

relaxed. A more general weighing of probative value and prejudice, outside 

82 


83 

Paciocco, “Wray Formula”, supra note 81 at 143. 

84 

Ibid. 

85 


86 

R v Burlingham, 1995 2 SCR 206 at para 146, 124 DLR (4th) 7. 

87 

R v Clarkson, [1986] 1 SCR 383 at 391-392, 26 DLR (4th) 493.


the Wray formula, arose. Where prejudice outweighed probative value, the 

evidence could be excluded. 88 In Seaboyer, by expanding the common law 

power of a trial judge to exclude technically admissible Crown evidence, 

the Supreme Court was importing the balancing exercise recognized by it 

in Corbett with respect to the exclusionary discretion contained within 

section 12 of the Canada Evidence Act (though not explicitly). Prior to this, 

the exact relationship that had to exist between the potential prejudice 

and probative value of a piece of evidence in order to trigger the common 

law exclusionary discretion remained less than clear. 89 Thankfully, this is 

not the case today. The weight of authority indicates that prejudice need 

merely outweigh probative value for exclusion to result. 

It is worth noting that the Wray test for exclusion, however 

circumscribed, has not been explicitly discarded by the Supreme Court of 

Canada, even though, since Seaboyer, it no longer provides an accurate 

legal description of the general power of a judge to exclude relevant 

evidence. 90 Consequently the general discretion employable against Crown 

evidence existing at common law may (technically speaking) be capable of 

operating under either formulation. 91 Having said this, it is a non-issue 

since the wider balancing test enunciated by the Supreme Court in 

88 

Seaboyer, supra note 56 at paras 610-611; Mohan, supra note 2 at 20-21, 37-38, per 

Sopinka J (balancing probative value against prejudice for the purposes of the 

exclusionary discretion involves a balancing of the benefits of the evidence against its 

costs). 

See also Paciocco & Stuesser, supra note 1 at 3 (recognizing Mohan as the source 

in law of this new formula). Although Mohan is more recent authority, and often cited 

for the proposition that a trial judge possesses a residual discretion to exclude 

technically admissible Crown evidence where its probative value is exceeded by its 

prejudicial effect (see e.g. R v Duncan (2001), [2002] 11 WWR 134 at para 43 

(available on WL Can) (Man Prov Ct); Welsh, supra note 6 at para 35), this proposition 

of law was first formally laid down by the Supreme Court in the earlier case of 

Seaboyer. 

89 

Morris, supra note 2 at 202; Corbett, supra note 2 at 739. This lack of clarity is evident 

in the numerous ways in which the Wray standard was described by different courts in 

past cases. In fact, often the specific tripartite standard (see Section II discussion 

above) was never referred to at all, or at least not in its entirety: see e.g. Richard, supra 

note 60 at 136: “...if the evidence is of limited probative value and highly prejudicial, 

the judge has a discretion [to exclude]”. 

90 

Corbett, supra note 2 at para 739-740, per La Forest (dissenting); Seaboyer, supra note 56 

at paras 40-43. 

91 

See Sopinka et al, supra note 5 at para 2.57.


Seaboyer and Mohan is usually applied by any court grappling with whether 

to exclude a piece of Crown evidence under this form of exclusionary 

discretion 92 and any evidence that might have been caught by the 

restrictive Wray discretion will almost certainly be caught by the wider 

Seaboyer discretion. 

The Wray formulation has also fallen into disuse because it has no 

ability to exclude evidence based on the circumstances in which it was 

obtained. Thankfully, some of the exclusionary discretions which have 

come to be recognized in law, as well as the exclusionary rule brought in by 

virtue of the introduction of subsection 24(2) of the Charter, 93 have come 

to fill the large void left by the Supreme Court in the Wray decision. 

B. The Seaboyer Exclusionary Discretion 

Considering the concepts of prejudice and probative value would help 

illustrate how the discretion articulated in Seaboyer operates. As a starting 

point, both the level of prejudice and probative value are determined by 

reference to the specific facts of a case, and therefore are not to be 

considered in the abstract. 94 

The probative value of evidence is determined primarily by 

considering its credibility, its reliability, and the strength of the inference 

it gives rise to. 95 “The assessment of probative value requires that the 

Crown clearly identify the purpose for which the evidence ... is 

proffered.” 96 A judge contemplating the exercise of his or her exclusionary 

92 

See e.g. Mohan, supra note 2 at 20-21, 37-38; DD, supra note 3; Powell, supra note 2. 

93 

Subsection 24(2) places a duty on courts in certain circumstances to exclude 

unconstitutionally obtained evidence: see generally Paciocco & Stuesser, supra note 1 

at 350; Grant, supra note 46. 

94 

Corbett, supra note 2 at 744, per La Forest J (dissenting). Although La Forest J made 

this point in the context of the statutory discretion that exists within section 12 of the 

Canada Evidence Act, it is equally applicable in this context as well. For an actual 

example of how this approach manifests itself: see Morris, supra note 2, per McIntyre J, 

where the low probative value of the presence of a newspaper article concerning the 

heroin trade in Pakistan rather than in Hong Kong found among the accused’s 

possessions, it still provided for the inference that the accused had apprised himself 

on the sources of supply of heroin and was thus receivable. 

95 

Paciocco & Stuesser, supra note 1 at 35, 41. 

96 

Powell, supra note 2 at para 8.


discretion “must come to some appreciation of the probative value of the 


Prejudice refers to any adverse effects arising from the introduction of 

evidence. 98 For example, evidence can be excluded “where its admission 

would involve an inordinate amount of time that is not commensurate 

with its value.” 99 As stated in R v Collins, 100 for something to count as 

prejudice it need not be shown that it will be adverse to the other party’s 

position. Instead, it must simply have the potential to adversely affect the 

fairness and integrity of the proceedings. The trial judge cannot exclude 

relevant evidence solely for the reason that it tends to prove the guilt of 

the accused. 101 For something to constitute prejudice, it must be more 

than mere speculation or conjecture. 102 In Duguay, 103 the Court held that 

the evidence must either have the potential to render the trial unfair for 

the accused or be susceptible in some way to misuse by the trier of fact. 

Again, here, with respect to the assessment of prejudicial value, there 

is ambiguity in that in the past some courts have focused on prejudice to 

the trial process as concerns only the accused, 104 while others have focused 

on prejudice as concerns the trial process more generally. 105 The latter view 

includes a consideration of the impact evidence can have on accused 

persons, victims, and third parties. The weight of recent authority supports 

the latter interpretation. 106 The factors considered under the prejudice side 

of the equation have included: 

1. a tendency that the evidence is given more weight than it deserves; 107 

97 

R v Duguay, 2005 NBQB 48 at para 88, 277 NBR (2d) 165 [Duguay QB]. 

98 

Paciocco & Stuesser, supra note 1 at 40-41. 

99 

Mohan, supra note 2 at 20-21. 

100 

(2001), 160 CCC (3d) 85 at para 19, 150 OAC 220 (Ont CA). 

101 

R v Tran, 2001 NSCA 2 at para 28, 19 NSR (2d) 18 (NS CA); R v Aziga, 2008 

CarswellOnt 7630 at para 25 (WL Can), 2008 CanLII 66631 (Ont SCJ) [Aziga]. 

102 

R v Kinkead, 1999 CarswellOnt 1264 at para 18 (WL Can), 1999 CanLII 14909 (Ont 

SCJ). 

103 


104 

See, for example, Wray, supra note 16. 

105 


106 

See DD, supra note 3 at para 11 (affirming Mohan, supra note 2). See also Paciocco & 

Steusser, supra note 2 at 40; R v Bartkowski, 2004 BCSC 321 (available on WL Can) 

[Bartkowski]; R v Boyd, 2006 MBQB 128 at para 25, [2006] 11 WWR 721 [Boyd]. 

107 

McWilliams et al, supra note 11 at 5-14.4; R v Paul, 2004 CarswellOnt 1293 (WL Can) 

at para 32, 2004 CanLII 12063 (SCJ) [Paul].


2. might somehow be prejudicial to non-parties, witnesses or complainants (e.g. 

certain lines of questioning in sexual assault cases); 108 

3. might threaten the fairness of the process; 109 

4. might confuse or mislead or raise side issues; 110 

5. might cause unfair surprise (depriving a party of the opportunity to 

respond); 111 

6. might involve an inordinate amount of time; 112 

7. might distort the truth-seeking function of the trial; 113 

8. might unduly inflame the jury’s emotions; 114 

9. might usurp the function of the jury; 115 and 

10. might overwhelm the jury with an aura of infallibility (arises in the context of 

expert evidence) 116 

In considering the level of prejudice, some courts have also mentioned 

the need to consider the mode of trial: is the trial being heard before a 

judge alone or a judge and a jury? In a recent case, Powell, the Ontario 

Superior Court of Justice reasoned that in a judge-alone trial the risk of 

evidence being misused is far less than when it is being considered by a lay 

jury. 117 This is because trial judges are more likely than jurors to “have the 

108 

McWilliams et al, supra note 11 at 5-14.8; Boyd, supra note 106 at para 25. 

109 

McWilliams et al, supra note 11 at 5-14.4; DD, supra note 3 at para 37; Bartkowski, 

supra note 106 at para 12; Boyd, supra note 106 at para 25. 

110 

Paciocco & Stuesser, supra note 1 at 40; Corbett, supra note 2 at 714; McWilliams et al, 

supra note 11 at 5-14.5; Wray, supra note 16 at 297; Paul, supra note 107 at para 32. 

111 

Paciocco & Stuesser, supra note 1 at 40; McWilliams et al, supra note 11 at 5-15; Wray, 

supra note 16 at 297. 

112 

Paciocco & Stuesser, supra note 1 at 40; Corbett, supra note 2 at 714; McWilliams et al, 

supra note 11 at 5-14.7; Paul, supra note 107 at para 32. 

113 

McWilliams et al, supra note 11 at 5-14.4–5-14.5; Bartkowski, supra note 106 at para 

12; Paul, supra note 107 at para 32. 

114 

McWilliams et al, supra note 11 at 5-14.4. 

115 

Ibid at 5-14.6. 

116 

DD, supra note 3 at para 37; Paul, supra note 107 at para 32. 

117 

Powell, supra note 2 at para 10. Curiously, in Duguay QB, supra note 97 at para 113 the 

trial judge states the converse. He says that where there is a jury trial a trial judge 

should generally be very loath to exclude the evidence given the crucial role the jury 

plays in such trials. Although this was not explicitly stated by the trial judge, this 

seems to imply that where a trial is by judge alone, the trial judge should be more 

willing to exclude the impugned evidence. In spite of his statements, the trial judge 

did notably choose to exercise his residual discretion to exclude the impugned 

evidence, to prevent the jury from considering it. I submit that any approach which 

favours exclusion of the evidence in judge-alone trials over that of jury trials is not to 

be preferred for the reasons enumerated in the text above and below.


ability to disregard the prejudicial aspects, if any ...” 118 of evidence by 

properly cautioning themselves. Where a trial is held before judge alone, it 

seems prudent that trial judges be given a little bit “greater latitude to 

consider evidence whose admission might be questioned” 119 were it to be 

put before a lay jury. 120 

Another related factor mentioned by some courts, 121 with the 

potential to have great impact on the admissibility of evidence analysis, is 

whether jury instructions can reduce potential prejudice to a point where 

evidence which would not otherwise have had sufficient probative value to 

overcome prejudice can, as a result of such instruction, gain admittance. 

As noted by the Supreme Court in Mohan, “the possibility that evidence 

118 

R v Andirchow, 2008 ABPC 298, 459 AR 36 at para 20. 

119 

R v Sutherland (2001), 156 CCC (3d) 264 at para 19, 146 OAC 53 (Ont CA) 

[Sutherland]. It also seems prudent that trial judges be given more leeway in their 

discretionary determinations whether the requirements of admittance under any 

specific exclusionary rules are met on the facts of a particular case where the case is 

being heard by a judge alone and not a judge and jury: see R v Poslowsky (1997), 11 CR 

(5th) 141 at para 34-35 (available on WL Can) (BC SC). 

120 

In my view this should not be done as a matter of course. The exclusionary discretion 

exists in part because some evidence is so potentially prejudicial that it should not be 

considered by the trier of fact, regardless of the mode of trial. It is likely for this reason 

that in R v Sutherland, Justice Laskin, while reasoning that judges should be given more 

room to accept evidence they might not otherwise in the presence of a jury, did not 

recommend “a wholesale abandonment” in these circumstances, “of the trial judge’s 

gatekeeper function which requires that he or she exclude evidence where its 

prejudicial value outweighs its probative value.”(Powell, supra note 2 at para 24, 

referring to the Court’s reasons in Sutherland, supra note 119, per Laskin J). I submit 

that this duty on a trial judge in most cases must be discharged. (See, for example, 

Powell, supra note 1 at paras 17-24 where the trial judge decided to exclude the gun 

evidence in spite of the absence of a jury and in spite of his acknowledgement that 

trial judges have a greater ability than lay jurors to disregard any prejudicial aspects of 

evidence.) Only in the most exceptional circumstances should a judge decide to accept 

otherwise excludable evidence for reason only that the trial is before a judge alone as 

opposed to a judge and jury. 

121 

Aziga, supra note 101 at para 25; Paul, supra note 116 at para 23. Interestingly, in R v 

Chretien, 1999 BCCA 411 at para 20, 137 CCC (3d) 87, the Court rejects this factor 

as being one that should be considered in balancing probative value against prejudice, 

in deciding whether to apply an exclusionary discretion. In light of the Supreme 

Court’s clear recognition of this factor in cases such as Mohan (supra note 2 at 24) and 

Corbett (supra note 2 at 693), there is no question as to its existence, notwithstanding 

the contrary statement made in this regard in Chretien.


will overwhelm the jury and distract them from their task can often be 

offset by proper instructions.” 122 In Corbett, the Supreme Court, after 

balancing probative value against prejudice (albeit in the context of an 

implied statutory discretion), decided against exercising an exclusionary 

discretion even though the risk of prejudice arising from introduction of 

the accused’s prior convictions (namely that the jury could conclude that 

the accused is a bad person and has a propensity to commit criminal 

offences and therefore must have committed the crime with which he 

stands charged) was recognized as being high. This was because the risk of 

prejudice could be eliminated (or at the very least minimized) by a proper 

instruction to the jury about the impermissible use of the prior criminal 

record. 123 Nonetheless, the greater the prejudicial effect of the evidence, 

the less likely it seems that it can be sufficiently addressed by way of a 

proper instruction to the jury. 124 

A further factor, which is subsumed within some of the 

aforementioned factors, is the degree to which the evidence might be 

decisive to the ultimate issue of guilt or innocence. Where the evidence is 

likely to influence the ultimate issue, it is fair to say that prejudice would 

clearly need to exceed probative value in order for exclusion to result, to 

lessen the room for close calls. It is also worth noting that in these 

situations the test for admittance within specific exclusionary rules (such 

as the expert evidence rule) is more strictly applied. 125 

Another factor which has been considered by some courts 126 is the 

level of agreement, if any, between Crown and defence as to whether the 

evidence is likely to be prejudicial to the fact-finding process. While the 

exercise of the exclusionary discretion is the sole province of the trial 

judge, there is no doubt that its analysis will often (if not always) be heavily 

informed by the evidence presented by Crown and defence counsel. That 

said, even where there is agreement between counsel that the evidence 

presents no danger and should be admitted, the trial judge still retains the 

122 

Mohan, supra note 2 at 24. 

123 

Corbett, supra note 2 at 121, per Dickson CJ and Lamer J For similar holdings, see 

Saroya, supra note 25 at 257-258; R v Terry, [1996] 2 SCR 207 at para 30, 135 DLR 

(4th) 214. 

124 

See generally R v Grewall, 2000 BCSC 1370 at para 51 (available on WL Can). 

125 


126 

R v Morrisey (2003), 12 CR (6th) 337 at para 22 (available on WL Can) [Morrisey].


discretion to exclude the evidence. Consequently, where he or she has a 

reasonable basis for concluding that the evidence’s prejudicial effect 

outweighs its probative value, the trial judge may exclude the evidence 

regardless of any submissions, joint or otherwise, from counsel that dictate 

the opposite outcome. 

Needless to say, depending on the particular circumstances of any 

case, a variety of factors that serve to inform the level of prejudicial effect 

of the evidence will present themselves. “The relative weight to be assigned 

to factors requires an ad hoc judgment and is not a process that can be 

captured by a bright line capable of yielding a single correct result.” 127 

Once the assessments of prejudice and probative value are complete, a 

balancing of one against the other occurs. Where prejudice is found to 

outweigh probative value, the evidence may be excluded. This exercise 

must be completed by a trial judge before any application of the 

exclusionary discretion, though he or she may not need to refer explicitly 

to this balancing in their reasons for decision. 128 The exclusionary 

discretion, while integral to ensuring the fairness of the trial process, 

should not be viewed as “a blanket discretion for judges to repudiate 

conduct on the part of authorities regarded as distasteful or 

inappropriate.” 129 In other words, where the probative value of Crown 

evidence is found to outweigh its prejudicial effect, even by the slightest of 

margins, the evidence, no matter how objectionable, must be received. 130 

127 

R v Pilon, 2009 ONCA 248 at para 54, 243 CCC (3d) 109. The same can no doubt be 

said of the statutory discretions that exist within statutory rules of admissibility. 

128 

R v Devine, 2008 SCC 36 at para 30, [2008] 2 SCR 283 [Devine]. 

129 

Rothman, supra note 36 at 696, per Lamer J. While this statement was made in the 

context of a different exclusionary rule, a “pure discretion” to exclude (see Section I 

and note 40 above) contained within then section 178.16 of the Criminal Code (supra 

note 23), it is equally applicable to the trial judge’s exclusionary discretion regarding 

Crown evidence at common law established in Seaboyer. 

130 

A properly crafted jury instruction cautioning the jury about the impermissible use of 

the evidence can sometimes provide a piece of evidence, which might not otherwise 

have enough probative value to exceed prejudicial effect, with sufficient probative 

value to make it receivable. This is because a proper jury direction can reduce or 

remove prejudicial effect, such that prejudicial effect no longer exceeds probative 

value: See generally Paciocco & Stuesser, supra note 1 at 44.


IV. THE GENERAL DISCRETION AT COMMON LAW TO 

EXCLUDE DEFENCE EVIDENCE WHERE ITS PREJUDICIAL 

EFFECT SUBSTANTIALLY OUTWEIGHS ITS PROBATIVE VALUE 

The third type of exclusionary discretion concerns defence evidence 

and also owes its existence to the common law. In Seaboyer, the Supreme 

Court of Canada decided to change the common law, giving life to a new 

form of exclusionary discretion: the trial judge can now exclude what is 

otherwise technically admissible defence evidence. 131 “[N]o matter how 

limited this discretion might or might not be in relation to defence 

evidence, the discretion does exist.” 132 

Prior to this case, there existed no exclusionary discretion applicable 

to defence evidence. 133 If defence evidence was found to be legally 

admissible, it would be received regardless of the prejudice it occasioned. 

As a result, the general exclusionary discretion existing at common law 

first recognized in Wray had no applicability to defence evidence, andthis 

continues to be the case under the post-Wray formulation recognized by 

the Supreme Court in Seaboyer and Mohan. 

However, as a consequence of Seaboyer, a trial judge can now exclude 

defence evidence where its prejudice substantially outweighs its probative 

value. 134 This standard is more imposing than the formulation applicable 

to Crown evidence 135 which requires only that prejudice exceed probative 

value, though it is probably not more imposing than the tripartite 

standard for exclusion laid down by the Supreme Court in Wray. The 

discretion to exclude defence evidence “only becomes engaged where the 

prejudicial effect of the evidence substantially exceeds its probative 

value.” 136 

Unlike the discretion regarding Crown evidence, the discretion 

applicable against defence evidence can only be understood with reference 

131 

Seaboyer, supra note 56 at 611. 

132 

R v TJB, 2004 CarswellNfld 122 at para 6 (WL Can), 2004 CanLII 16157 (PC) [TJB]. 

133 

See generally, Paciocco & Stuesser, supra note 1 at 38. 

134 

Seaboyer, supra note 56 at 611; aff’d R v Shearing, 2002 SCC 58 at para 107, [2002] 3 

SCR 33. 

135 

See Paciocco & Stuesser, supra note 1 at 38-39 for a discussion of the rationale behind 

the more imposing standard applicable to defence evidence. 


R v Palma (2000), 149 CCC (3d) 169 at 175 (available on WL Can) (Ont SCJ).


to the fundamental tenet of our criminal justice system that an innocent 

person not be convicted. 

McLachlin J, speaking for the majority of the Supreme Court in 

Seayboyer, explained it this way: 

The right of the innocent not to be convicted is reflected in our society's 

fundamental commitment to a fair trial, a commitment expressly embodied in 

s.11(d) of the Charter. It has long been recognized that an essential facet of a fair 

hearing is the "opportunity adequately to state [one's] case". This applies with 

particular force to the accused, who may not have the resources of the state at his 

or her disposal. Thus our courts have traditionally been reluctant to exclude even 

tenuous defence evidence. For the same reason, our courts have held that even 

informer privilege and solicitor-client privilege may yield to the accused's right to 

defend himself on a criminal charge. 

…. 

The right of the innocent not to be convicted is dependent on the right to 

present full answer and defence. This, in turn, depends on being able to call the 

evidence necessary to establish a defence and to challenge the evidence called by 

the prosecution. As one writer has put it: If the evidentiary bricks needed to 

build a defence are denied the accused, then for that accused the defence has 

been abrogated as surely as it would be if the defence itself was held to be 

unavailable to him. 

In short, the denial of the right to call and challenge evidence is tantamount 

to the denial of the right to rely on a defence to which the law says one is 

entitled. The defence which the law gives with one hand, may be taken away with 

the other. Procedural limitations make possible the conviction of persons who 

the criminal law says are innocent [references excluded]. 137 

It follows that where defence evidence is found to be technically 

admissible, the circumstances which will justify its exclusion will be very 

narrow indeed. 138 A natural consequence of this principle is that evidence 

introduced by the Crown that would almost certainly be excluded by a 

judicial discretion to exclude, may not suffer that fate if introduced by the 

defence. 

R v Morrissey 139 is instructive. There, the defence sought to introduce 

critical evidence of the accused’s relationship with two previous girlfriends 

in an attempt to undercut the Crown’s theory that the shootings in the 

case were a murder/suicide attempt on the part of Mr. Morrissey, as 

opposed to a suicide attempt by Mr. Morrissey gone terribly wrong. The 

137 

Seaboyer, supra note 56 at 607-608, per McLachlin J. 

138 

Seaboyer, supra note 56 at 611. 

139 

Supra note 126.


evidence of disposition, according to the defence, demonstrated that Mr. 

Morrisey, when he got angry or upset at the time of breakdown in a 

personal relationship, turned his feelings of distress on himself as opposed 

to his partners. The evidence was crucial to Mr. Morrisey’s state of mind at 

the material time, since it vitiated the specific intent required for 

murder. 140 

Fuerst J, while recognizing that the relevance of the defence evidence 

involved propensity reasoning, which is generally problematic since it is 

premised on the belief that a person’s disposition is a reliable predictor of 

conduct in a given situation, refused to exclude the evidence, pursuant to 

her exclusionary discretion or otherwise. 141 She underlined that the danger 

of propensity reasoning concerning the accused (that it will do no more 

than blacken an accused’s character) makes Crown evidence of this kind 

impermissible, 142 not defence evidence which seeks to assist an accused in 

making full answer and defence. Because prejudice did not substantially 

outweigh probative value, the evidence could not be excluded. Fuerst J 

also underlined that a trial judge possesses the discretion to relax rules of 

evidence in favour of an accused in order to prevent a miscarriage of 

justice, which she was choosing to exercise if the impugned evidence, 

strictly speaking, was not technically admissible for violation of the similar 

fact evidence rule. 143 Last, the risk that the evidence would be used as 

evidence of Mr. Morrisey’s general disposition was not unduly high since 

the trial was by judge alone. 

In R v Young, 144 expert evidence tendered by the defence addressing 

the effect of alcohol on the human body survived where comparable 

Crown evidence might not have. There, the trial judge refused to apply the 

140 

Morrisey, supra note 126 at paras 7-14 & paras 23-24. 

141 

Ibid at para 25-27. 

142 

Ibid at para 21. This kind of evidence is referred to as “similar fact evidence” when 

tendered by the Crown. It is inadmissible unless it can meet the test for admission set 

down in R v Handy, 2002 SCC 56, [2002] 2 SCR 908 [Handy], a test heavily imbued 

by considerations of probative value and prejudice. Fuerst J refused to qualify the 

defence evidence as “similar fact evidence” since it was not evidence that had been 

tendered by the Crown for the purpose of blackening the character of the accused: at 

para 21. 

143 

Morrisey, supra note 126 at para 26. Even though the evidence can be received in these 

circumstances, this does not entitle it to any weight. Fuerst J notes as much, in her 

reasons at para 24. 

144 

2003 BCSC 1831 (available on WL Can) [Young].


general standard for exclusion applicable to expert evidence tendered by 

the Crown – where prejudice outweighs probative value – to the exercise 

of his exclusionary discretion. The Crown took the position that 

significant indicia of prejudice, identified by the Supreme Court in 

Mohan, 145 namely, its ability to confuse the jury or cause it to put undue 

weight on the evidence, were present on the facts. In any event, argued the 

Crown, the evidence was not probative to any issue in the case. All told 

this meant that the evidence’s prejudicial effect outweighed its probative 

value, meriting its exclusion. Barrow J refused to exclude the evidence, 

pointing out that the issue of intoxication was relevant to the question of 

the accused’s mental state in relation to the offence with which she stood 

charged. 146 More important for our purposes, the trial judge held that 

prejudicial effect did not “clearly” outweigh probative value so the 

discretion was not exercisable. 147 

In balancing prejudicial effect against probative value, there is no 

doubt that some of the factors considered by the trial judge in exercising 

this form of discretion are specific to or figure more predominantly in this 

context and are sensitive to the often delicate nature of the evidence in 

question. In R v TJB, 148 the accused stood charged with sexual assault and 

sought to introduce evidence from three witnesses to demonstrate the 

neighborhood’s view on the complainant’s poor reputation for truth and 

veracity. Gorman J had to ascertain whether to allow a foundation to be 

laid that would then allow the three witnesses to give evidence of the 

complainant’s general reputation for truthfulness in the community. The 

proper foundation being the witnesses’ actual knowledge of the 

community’s view of the reputation of the complainant as to truth and 

veracity in the neighborhood in which she resides. Without this 

foundation, the evidence would be inadmissible. 149 The danger of 

prejudice was clear in that receipt of the evidence might very well lead to 

145 

Supra note 2. 

146 

Young, supra note 144 at para 4. 

147 


148 


149 

TJB, supra note 132 at para 1. As a general rule, such evidence is inadmissible. In R v 

Diu (2000), 49 OR (3d) 40 at 52, 144 CCC (3d) 481 (CA), the Court of Appeal for 

Ontario stated: in “general, the character of a victim of a crime is irrelevant and 

neither the accused nor the Crown may lead such evidence.”


the forbidden inference that, because of the complainant’s bad character, 

she “got what she deserved”. 

While recognizing the highly limited nature of the discretion 

exercisable against defence evidence, Gorman J disagreed with defence 

counsel’s view that defence evidence as to a complainant’s reputation for 

truth and veracity was automatically admissible, with the question being 

one of weight rather than admissibility. 150 As the trial judge noted: 

The inherent “dangers” involved in the presentation of such evidence should not 

be underestimated. We all may have views on the character of others, but 

expressing “our communities” view of such character is much more difficult and 

problematic. It will invariably be based upon hearsay and the worse forms of 

gossip, rumour or an innuendo. In addition, such evidence will always, to a 

certain extent, be colored by our personal views of that person. No one can 

proffer such an opinion on behalf of their community free from such frailties. 151 

Gorman J’s view is the correct one; defence evidence of the kind at 

issue in TJB, or otherwise, is not automatically receivable just because it is 

introduced by the defence on behalf of an accused; it is always subject to 

being excluded by the trial judge where its prejudicial effect substantially 

outweighs its probative value. That said, the discretion must be exercised 

very cautiously, especially relative to the Seaboyer discretion applicable to 

Crown evidence, since the accused’s right to make full answer and defence 

is “such a fundamental principle of justice that it cannot be lightly 

interfered with.” 152 It follows that, where a “proper foundation” as defined 

by relevant jurisprudence is present, defence evidence on the character of 

the complainant, no matter how objectionable and inflammatory, must be 

received. 

It is important to note that a proper foundation is not a perfect 

foundation, but merely one that gives the trial judge a reasonable basis for 

concluding that the witness’s testimony is not confined to his or her own 

opinions or views of the complainant’s reputation for truthfulness, but 

one which is at least in part informed by the neighborhood’s view (which 

clearly the witness must have some personal knowledge of). Thus, in TJB, 

Gorman J allowed testimony of one of three defence witnesses to be 

received, even though the witness had significant difficulty in 

150 

TJB, supra note 132 at paras 5-6. 

151 


152 

Ibid at para 19.


distinguishing between her personal view of the complainant’s character 

and the community’s view of the complainant’s reputation for 

truthfulness. 153 In determining whether a proper foundation for the 

proposed defence evidence has been laid in this context, which in effect 

disabuses a trial judge of their power to exclude this kind of evidence in all 

circumstances, a trial judge’s considerations should include: 

i. Whether the witness’s testimony reveals that he or she might 

be mistaken as to identity of the complainant; 

ii. Whether the witness goes further than merely expressing his 

or her personal opinion as to the complainant’s reputation for 

truthfulness and veracity; 

iii. Whether the witness has personal knowledge of the views of 

community on the complainant’s reputation for veracity and 

truthfulness, or whether his or her opinion is completely 

devoid of personal knowledge and solely reliant on hearsay. 

All the above said, in balancing probative value against prejudicial 

effect for defence evidence, the trial judge may need to consider some of 

the same factors as it does with respect to the discretion exercisable against 

Crown evidence. For instance, in assessing the probative value of defence 

evidence, a consideration of its credibility is undertaken. 154 

Of the four kinds of exclusionary discretions herein examined, it is 

fair to say that the ambit of the discretion applicable to defence evidence is 

the most constrained, though it bears repeating that prior to Seaboyer, 

defence evidence was altogether immune from a judicial discretion to 

exclude. Despite its limitations, the discretion to exclude defence evidence 

has been exercised on a number of occasions and there is no longer any 

question as to its existence. 

153 

TJB, supra note 132 at para 21. Of note, Gorman J exercised his discretion to exclude 

the evidence from the other two witnesses finding that a “proper foundation” was not 

present to support their respective testimonies. Hence, this defence evidence’s 

prejudicial effect was found to substantially outweigh its probative value: at paras 20 

& 22. 

154 

Ibid at para 18.


V. THE GENERAL DISCRETION TO EXCLUDE CROWN 

EVIDENCE TO ENSURE A FAIR TRIAL ARISING OUT OF THE 

CHARTER AND R V HARRER 

The final type of discretion owes its existence to section 11(d) of the 

Charter and to the Supreme Court’s decision in R v Harrer, 155 though it is 

traceable to the dissenting opinions of some Supreme Court Justices in 

cases such as Wray. 156 It has aptly been characterized as a 

“constitutionalized common law discretion”. 157 It permits a trial judge to 

exclude improperly obtained evidence, even in the absence of a Charter 

breach, in order to ensure a fair trial. 158 This discretion seems to fill a void 

left by that in Wray, which (to repeat) left little, if any, room for 

improperly obtained evidence – or any other evidence for the matter – to 

be excluded, because of the high standard that had to be met, and because 

of the refusal to consider pre-trial procedures as a factor bearing on the 

fairness of the trial process itself. It is also fair to say that because this form 

of discretion specifically contemplates the exclusion of improperly 

obtained evidence in order to ensure a fair trial for the accused, the wider 

Seaboyer formulation employable against Crown evidence may not always 

be exercisable against this kind of evidence. 159 When, for example, the 

evidence’s probative value clearly outweighs its prejudicial effect. 

155 

Supra note 13. Interestingly, Paciocco & Stuesser, supra note 1 attribute the source of 

this discretion to the Charter and to Buhay (supra note 14). Buhay does identify the 

discretion at para 40, but is simply affirming the earlier case of Harrer in this regard. 

156 

See generally McWilliams et al, supra note 11 at 5-15. 

157 

Ibid at 5-19; Sopinka et al, supra note 5 at 31. See Harrer, supra note 13 at paras 21-24, 

per La Forest J. 

158 

Harrer, supra note 13 at paras 21-23, per La Forest J; Sopinka et al, supra note 5 at 31. 

The concept of a fair trial recognized in Harrer extends beyond simply that which is 

guaranteed under section 11(d): see Harrer, supra note 13 at paras 21-24. In this way, 

the decision in Harrer is traceable to Corbett and the reasons of Dickson CJC and 

Lamer J that speak to the need for a statutized exclusionary discretion to ensure a “fair 

trial” beyond that contemplated by the fair trial protection housed in section 11(d) of 

the Charter. 

159 

Even if I am wrong and there is in fact complete overlap between these two forms of 

discretion, translating into the reality that either can operate to exclude improperly 

obtained Crown evidence in order to ensure a fair trial, a trial judge would be wise to 

opt for the Harrer discretion as it specifically anticipates exclusion of this kind of 

evidence.


In Buhay, 160 a case in which a Charter breach was found and hence a 

subsection 24(2) analysis undertaken, the Supreme Court recognized these 

two overlapping discretions in its obiter comments – though curiously it 

does not expressly recognize the “constitutional stature” of the 

exclusionary discretion laid down in Harrer. 161 

In Riley, 162 the Court appeared to contemplate an overlap between the 

Harrer and Seaboyer exclusionary discretions (exercisable against Crown 

evidence), stating that “the framework” laid down in these two cases for 

the exclusion of evidence is the one to be employed to exclude hearsay 

evidence where its prejudicial effect exceeds its probative value. But it 

makes no express comment about these discretions’ abilities (or lack of 

abilities) to exclude improperly obtained evidence. 

In Hawkins, 163 the Supreme Court says the discretion at common law 

exercisable against Crown evidence has simply been “constitutionalized” 

by its decision in Harrer. In other words there is only a single discretion 

generally employable against Crown evidence. Thus, according to the 

Supreme Court in this decision, there is complete overlap. If this 

interpretation is accepted to be the current state of the law, then the 

Harrer decision is best viewed as simply having further broadened the 

scope of the common law exclusionary discretion in Seaboyer – by expressly 

recognizing that, unlike the Wray discretion, it is readily employable 

against improperly obtained evidence – and elevated its legal stature by 

“constitutionalizing” it. 

In Harrer, 164 La Forest J, writing for the majority of the Supreme 

Court, characterized the discretion as free-standing and necessary to 

ensure that a trial is fair from the outset. To ensure a fair trial, resort to 

sections 24(1) or 24(2) of the Charter 165 was not always appropriate, nor 

160 


161 


162 

Supra note 18 at paras 22-24 & 32-33. 

163 


164 


165 

Charter, supra note 4, ss 24(1) and 24(2). Section 24(1) provides for the exclusion of 

evidence, which while not obtained in breach of the Charter would if admitted 

undermine the right to a fair trial as defined by section 11(d). In its own words, it 

provides for “such remedy as the court considers appropriate and just in the 

circumstances.” As can be seen, this section applies to prospective breaches of section 

11(d). Section 24(2), on the other hand, provides for the exclusion of evidence


sufficient in all circumstances of a case. 166 As a result, La Forest argued 

that the former common law duty placed on the trial judge to ensure that 

an accused receives a fair trial, when understood in light of section 11(d) 

(which houses the fair trial guarantee) gave rise to a new form of judicial 

discretion to exclude: “a constitutionalized common law discretion” which 

could be used to exclude improperly obtained evidence, even in the 

absence of a Charter breach. This included exclusion before a trial even 

started, if necessary. This not only expands the former common law duty 

placed on a judge to ensure a fair trial, but also elevates it to constitutional 

stature independent of the Charter’s exclusionary provisions. 167 

The new exclusionary discretion was recognized in Harrer for a 

multitude of reasons. First, the discretion recognized in Seaboyer could not 

ensure a fair trial in all circumstances, because evidence which was illegally 

or improperly obtained might still possess enough probative value to 

outweigh any possible prejudice arising from its admission. Thus, it was 

still possible that some improperly obtained evidence whose receipt would 

render a trial unfair could be received into evidence. 168 

Second, improperly obtained evidence might not always be cognizable 

by the Charter for the purpose of exclusion for any number of reasons. 

First, the evidence may not have been obtained in breach of the Charter. 

Second, the evidence may have been obtained in breach of the Charter, but 

would not, if admitted, breach the fair trial protection housed in section 

11(d), making the exclusionary provision based on trial fairness contained 

in section 24(2) inapplicable. 169 Third, in a situation like Harrer, where the 

obtained in breach of the Charter. 

166 

Resort to these sections was not possible in Harrer because of an absence of Canadian 

state action. The impugned conduct involved American police officers: Harrer, supra 

note 13 at paras 1-8. 

167 

Harrer, supra note 13 at paras 21-24. 

168 

Based on what is said by the Supreme Court in Potvin (supra note 24) the same cannot 

be said about the statutory exclusionary discretion incorporated into section 715 of 

the Criminal Code. According to the majority of the Court in that case, the statutory 

discretion contained therein is exercisable against improperly obtained evidence that 

has met the requirements for admissibility contained within the section: see Section II 

discussion above. 

169 

Though such evidence may still be excludable under section 24(2) where the Charter 

breach is particularly serious and where admission of the evidence would bring the 

administration of justice into disrepute: See, for example, R v Stillman, [1997] 1 SCR 

607, 144 DLR (4th) 193.


impugned conduct involves a non-Canadian state agent, the Charter might 

not apply at all. In these circumstances trial fairness might not be 

preserved in the absence of the Harrer discretion. 

Third, by elevating what was until Harrer a statutory or common law 

discretion to exclude to constitutional stature, the Supreme Court has 

created room for the Harrer discretion to operate even in cases not 

involving improperly obtained evidence. McWilliams et al. state that as a 

result of the Supreme Court’s decision in Harrer, a trial judge now has a 

broad discretion to exclude evidence not only where its probative value 

exceeds its prejudice, but also “where its admission would render the trial 

unfair.” 170 That said, Paciocco and Stuesser take a narrower view, stating 

that the exclusionary discretion premised on trial fairness is “most likely to 

be invoked where evidence has been unfairly or illegally obtained”. 171 

In situations where it might not be possible or wise to rely on any of 

the other forms of judicial discretion to exclude, the “constitutionalized 

common law discretion”, recognized in Harrer and clearly beyond the 

reach of Parliament to abolish by ordinary legislative enactment, can 

perhaps be used. 

VI. THE PREDOMINANT EXCLUSIONARY DISCRETION 

Now that we have reviewed each kind of discretion, it is worth 

reconsidering the most important: the trial judge’s free-standing discretion 

at common law, recognized by the Supreme Court in both Seaboyer and 

Mohan, which permits Crown evidence to be excluded where its 

prejudicial effect outweighs its probative value. This discretion often plays 

a determinative role both with regard to the admissibility of evidence and 

with regard to the disposition of a case. As well, it is the discretion a trial 

judge can most frequently employ to preserve the integrity of the rules of 

evidence. When it comes to the decision of whether or not evidence found 

legally admissible is nevertheless to be excluded for reasons of fairness, it is 

the discretion most often triggered. 

This is true for a number of reasons. First, since most rules of evidence 

are grounded in common law this form of discretion is left ample room to 

170 

McWilliams et al, supra note 11 at 5-2. 

171 

Paciocco & Stuesser, supra note 1 at 36-37.


operate. 172 Even in the hearsay context, where evidence can be admitted 

pursuant to a principled approach that assesses whether the impugned 

evidence has sufficient reliability and necessity, assessments which are 

heavily imbued with considerations of probative value and prejudice, there 

is room for this discretion to operate. 173 

Second, its prevailing formulation – that Crown evidence may be 

excluded where its prejudice outweighs its probative value – is broader 

than that of the other discretions, save that which is contained within 

certain statutory rules of admissibility. For example, the formulation in 

Seaboyer, applying to defence evidence, requires that prejudice substantially 

outweigh probative value before the discretion to exclude becomes 

exercisable. The general exclusionary discretion read into most statutory 

rules of admissibility applies only to those sparse 174 statutory rules, with 

the result that its scope is more restricted in the sense that it will be 

exercisable in far fewer situations (even where the standard is the same). 

And, of course, some particular statutory discretions may have particular 

restrictions or freedoms unique to them. 175 

172 

Having said this, it has at least three limits. First, it has no applicability to defence 

evidence. Second, it has no applicability to statutory rules of evidence, though the 

prevailing balancing exercise on which most statutory discretions are (or have been) 

based is the same, namely a weighing of probative value against prejudice. Third, it 

may not always be exercisable against illegally or improperly obtained evidence since 

the “constitutionalized common law discretion” recognized in Harrer and the Charter’s 

exclusionary rule contained in section 24(2) specifically deal with this. 

173 

Welsh, supra note 6 at para 34; Devine, supra note 128 at para 30; R v Khelawon, 2006 

SCC 57, [2006] 2 SCR 787 at para 49. 

174 

I have found only five statutory sections in which such a discretion has been expressly 

incorporated by the courts. That said, it seems likely that most, if not all, statutory 

rules of admissibility must be read as including a judicial discretion to exclude in 

order to remain constitutionally valid: see Section I and accompanying notes above. 

175 

For example, in Potvin, the Supreme Court held that the statutory discretion 

incorporated into section 715 of the Criminal Code is only exercisable in rare 

circumstances, based on a narrow weighing exercise. Having said that, the 

aforementioned limitation only pertains to section 715 of the Criminal Code. Other 

statutory sections (concerning admissibility of evidence at a criminal trial) in which a 

judicial discretion to exclude has been incorporated are not similarly saddled. They 

operate on the same standard as the general discretion from Seaboyer: where the 

prejudice of a piece of evidence outweighs its probative value, it may be excluded. 

What is more, one of the two circumstances in which the judicial discretion to 

exclude contained in section 715 of the Criminal Code becomes exercisable (where


Third, the general discretion to exclude arising out of Harrer and the 

Charter is more circumscribed: It is most likely to be implicated in cases 

where evidence against an accused is improperly obtained. 176 

Finally, in a criminal trial where the liberty of an accused is often at 

stake, more often than not it will be Crown evidence at issue, meaning 

discretions applicable to Crown evidence will most often be triggered. 

VII. 

SITUATING NON-STATUTORY DISCRETIONS: LOGICAL 

RELEVANCE VS. LEGAL RELEVANCE 

One area worth exploring with respect to non-statutory exclusionary 

discretion is its place in the admissibility of evidence analysis. As suggested 

earlier, an exclusionary discretion, regardless of the form it takes, is best 

understood as operating as a free-standing exclusionary rule in the 

admissibility analysis, to be considered after relevance and technical 

admissibility have been established. 177 Nonetheless, some are of the view 

that inherent in the concept of relevance is the requirement to assess the 

evidence in terms of its benefits balanced against its costs. 178 Viewed thus, 

evidence has been obtained through illegal or improper) means that the statutory 

discretion contained in section 715 specifically contemplates excluding “improperly 

obtained Crown evidence” in some circumstances (in order to ensure a fair trial). The 

same cannot be said for the exclusionary discretion recognized in Seaboyer exercisable 

against Crown evidence, which considers only that evidence whose probative value is 

exceeded by its prejudicial effect (though this may well capture most improperly 

obtained evidence). In this way, the statutory discretion contained in 715 of the 

Criminal Code may be viewed as being wider in scope than the Seaboyer exclusionary 

discretion employable against Crown evidence. 

176 

Paciocco & Stuesser, supra note 1 at 36-37; for contrary views, see Delisle et al, supra 

note 8 at 194; Riley, supra note 18 at para 23. Recall also, that the Supreme Court of 

Canada, in Potvin (supra note 24) stated that the discretion incorporated into section 

715 of the Criminal Code could be employed to exclude improperly obtained evidence 

in certain circumstances despite the fact it has met all statutory requirements for 

admissibility. Having said that, I could find no judicial decision in which this 

discretion was utilized in such a manner. 

177 

In Mohan, supra note 2, the majority’s reasons, per Sopinka J, endorse this view. 

178 

For a brief discussion of legal relevance, see Morris, supra note 2 at 193-205, per 

Dickson, Lamer and Wilson JJ (dissenting). For an example of the view complained of 

see Cowles v Balac (2006), 83 OR 3d 660 at para 201, 273 DLR (4th) 596 (CA), Borins 

JA (dissenting on other grounds):


the free standing exclusionary discretion first recognized in Wray is no 

more than a component of the exclusionary rule of relevance and has no 

independent existence. From this perspective, logical relevance is not 

enough. What is required is legal relevance; in addition to establishing 

logical relevance, the determination is made that the benefits of the 

evidence outweigh its cost, making the evidence worth receiving. 179 

This approach has not been the prevailing one and, thankfully, 

authoritative case law does not support it. 180 In R v Morris, the majority of 

the Supreme Court, per Lamer J, made clear that the standard of legal 

relevance has never been the law in Canada. 181 The standard of logical 

relevance is preferable for clarity of legal reasoning and because it makes 

the most sense to discuss the exclusionary discretion separately from and 

after the basic rule of admissibility and specific exclusionary rules have 

been applied. It is necessary these steps be completed first, for they inform 

the analysis taken up by the trial judge at the exclusionary discretion stage. 

This is a reflection of the fact that specific exclusionary rules are but 

specific manifestations of the broader residual discretion possessed by the 

trial judge, 182 itself an exclusionary rule. 

For something to be relevant it has to possess at least some probative 

value – the evidence has to make the proposition for which it is proffered 

more probable than it would be in its absence. So at the preliminary stage 

of the admissibility analysis, one first needs to assess the probative value of 

the evidence in a pointed and narrow way, as required by the rules of 

relevance and materiality, which if not met require the evidence be 

excluded in all circumstances. 183 Relevancy should be defined narrowly. If 

The established test for the admission of evidence at a trial rests on 

relevancy. Under this test, where evidence is tendered by impeachment 

purposes, … the admission of the evidence requires a showing of 

relevance to the credibility of a witness on a material matter and a 

demonstration that the potential value of the evidence for this purpose 

outweighs its potential prejudicial effect. 

179 

Paciocco & Stuesser, supra note 1 at 37. 

180 

See Mohan, supra note 2; DD, supra note 3; Paciocco & Steusser, supra note 1 at 37. 

181 

Morris, supra note 2 at 199-201. See also Corbett, supra note 2 at 719, per La Forest 

(dissenting). 

182 

Corbett, supra note 2 at 715, per La Forest J (dissenting). 

183 

It bears repeating that the analyses that occur under the rules of relevance and 

materiality and subsequently under specific exclusionary rules, such as the hearsay


it is defined too broadly, to include a balancing of costs against benefits, it 

may come to operate in an inclusionary way, leaving little, if any, room for 

the exclusionary discretion to operate. 184 As stated by the Court in R v 

Watson: “A finding that evidence is relevant does not determine 

admissibility”. 185 

Another implication of my comments is that under the rule of 

relevance there is some discretion exercised on the part of the trial judge 

because for evidence to be found relevant it must have some probative 

value. While the standard for relevance is fairly well accepted, it remains a 

question of law which is still somewhat vague and largely a matter of 

common sense. 186 Thus, the question of what is sufficiently probative for 

the purposes of the rule of relevance is open to some debate despite the 

clear holding in Morris, that a minimum amount of probative value is not 

required for the purpose of establishing relevancy; 187 the evidence need 

only have some probative value. 

R v Arcangioli 188 provides the classic example: was the accused’s flight 

from the scene of the crime relevant evidence on the issue of his identity 

as the victim’s stabber? The accused admitted to punching the victim, but 

denied stabbing him. In answering “no”, the Supreme Court concluded 

rule, will invariably involve questions of probative value and prejudice, but are distinct 

from that which takes place under the trial judge’s exclusionary discretion. 

184 

MS Weinberg, “The Judicial Discretion to Exclude Relevant Evidence” (1975) 21 

McGill LJ 1 at 9-10 [Weinberg, “Judicial Discretion”]. 

185 

(1996) 30 OR 3d 161 at 176, 108 C.C.C. (3d) 310 (CA) [Watson]. There is at least one 

notable exception to this. In the context of admitting defence evidence describing the 

bad character of the complainant or the deceased, a finding of “relevance” makes the 

evidence “technically admissible” because no exclusionary rule, like that excluding bad 

character evidence against an accused, exists in law. That is to say, unless a trial judge 

finds that the evidence’s prejudice substantially outweighs its probative value, 

requiring the application of the exclusionary discretion applicable to defence 

evidence, the evidence will be received. In this context then, the admissibility of 

evidence analysis is truncated. This is because the test for admissibility relies 

exclusively on relevance and a weighing of probative value against prejudicial effect: 

Watson, ibid. 

186 

Weinberg, “Judicial Discretion”, supra note 184 at 9-11. For an informative discussion 

of relevance, see Corbett, supra note 2 at 718-722, per La Forest J (dissenting). 

187 

Morris, supra note 2 at 199-200. According to the Supreme Court in Morris, once this 

is established, the weight, if any, to be given to evidence is a question for the trier of 

fact; it has no role whatsoever in the relevancy inquiry. 

188 

[1994] 1 SCR 129, 111 DLR (4th) 48 [Arcangioli].


that because the accused’s flight was equally as indicative of an aggravated 

assault (the Crown’s position), as a common assault (the defence’s 

position), the evidence could not meet the relevancy threshold because it 

did not have any probative value. Had the Supreme Court applied the 

widely accepted standard of relevance, which deems evidence to be 

relevant if it “has any tendency as a matter of logic to advance the 

proposition sought to be proved” (my emphasis), 189 it might have 

concluded that the “flight” did have some tendency, however slight, to 

advance the theory sought to be proved by the Crown, namely that the 

jury could infer from the accused’s flight that he had in fact committed an 

aggravated assault and not a common assault. That is because, even 

though the evidence of “flight” was equally explained by the commission 

of either crime, it still made the accused more, as opposed to less, likely to 

have engaged in either of the impugned acts, including in the act of 

aggravated assault. Thus, it possessed at least some probative value and was 

therefore relevant. 190 

Curiously, the same question of relevance arose in a similar factual 

context in R v White: 191 was the accused’s instant flight following the 

discharge of his firearm equally supportive of the mens rea requirement for 

either the crimes of manslaughter or murder, and therefore excludable 

under the rule of relevance? While the dissenting judges, per Fish J, 

emphatically held that the case was simply a repeat of Arcangioli and 

answered the question in the affirmative, 192 the majority of the Court 

disagreed. 

The majority held that lack of hesitation prior to flight was more 

consistent with a murderous intent than with an accident: “As a matter of 

logic and human experience, one would expect an ordinary person to 

present some physical manifestation, such as hesitation, at a gun in their 

hand accidentally discharging into someone’s chest.” 193 It distinguished 

Arcangioli on the basis that the proposition sought to be proved in that 

189 

Paciocco & Stuesser, supra note 2 at 32; Bartkowski, supra note 106 at para 8. 

190 

In other words, it would have been preferable for the Supreme Court to admit the 

evidence as relevant, then give it little weight as it was equally indicative of the 

commission of two crimes. 

191 

2011 SCC 13, [2011] 1 SCR 433 [White]. 

192 

Supra note 191 at paras 132-191. 

193 

Supra note 191, at para 67, as per Rothstein J.


case was decidedly different: whether the question of flight alone made the 

accused more likely to be guilty of one offense than another, which, it 

concluded, “as a matter of logic and human experience” it did not. In 

White, the issue was whether the accused’s manner of flight made him 

more likely to have possessed the mens rea of a person guilty of murder as 

opposed to manslaughter, which, it concluded, “as a matter of logic and 

human experience” it did. 194 

I submit that the distinction that was drawn by the Supreme Court in 

White to distinguish Arcangioli, as set out above, was unnecessary and takes 

the relevancy inquiry beyond its proper scope. The fact of the matter is, in 

both White and Arcangioli, the evidence, however minimally, increased the 

probability that the accused persons were guilty of the higher offences as 

opposed to the lesser offences. The fact that it may have also equally 

increased the probability that the accused persons were guilty of the lesser 

offences, as opposed to the higher offences, is irrelevant since in neither 

case was the latter proposition the proposition sought to be proved by the 

Crown. 

While White and Arcangioli are perhaps exceptional cases, it is evident 

that what is “relevant” or not is not amenable to a bright line test and 

remains largely a matter of common sense, over which reasonable persons 

can disagree. 195 Thus, the trial judge retains a measure of discretion to 

decide whether something meets the “relevancy” criterion. 

Still, the discretion exercised by the trial judge under the rule of 

relevance is not properly regarded as an exclusionary discretion in the 

sense discussed here for at least three reasons. First, an exclusionary 

discretion “presupposes that [the rule of relevance] has already been 

exercised in favour of admissibility, i.e., that the trial judge has decided 

that the evidence is sufficiently probative to be relevant.” 196 Second, 

courts’ treatment of relevance suggests that most evidence proffered by the 

defence or Crown satisfies this preliminary condition of admissibility with 

194 

Supra note 191, at paras 66-70. 

195 

This point is exemplified by the divergent rulings from different members of the 

Supreme Court in White. Fish J, writing for the dissent in that case, vigorously 

disagreed with the majority’s ruling on the question of relevance, arguing that the case 

was a rerun of Argangioli (supra note 188). Accordingly, because the evidence was 

equally indicative of murder as manslaughter on the issue of intent, the evidence had 

to be excluded as irrelevant. 

196 

Weinberg, “Judicial Discretion”, supra note 184 at 11.


little difficulty as the threshold has become a low one. 197 In other words, 

most evidence will be found relevant, and thus, in most cases, little, if any, 

discretionary power on the part of the trial judge to find that the evidence 

before them is irrelevant exists. 198 In Arp, the Supreme Court of Canada 

made this readily apparent when it opined that no minimum amount of 

probative value is required for a piece of evidence to be relevant. In the 

court’s words, “To be logically relevant, an item of evidence does not have 

to firmly establish, on any standard, the truth or falsity of a fact in issue. 

The evidence must simply tend to increase or diminish the probability of 

the existence of a fact in issue.” 199 

Third, the prevalent view is to define relevance narrowly, with a 

narrow consideration of only the probative value of the evidence. 

This analysis conducted under the rule of relevance is very unlike the 

broad ways that probative value and prejudice are considered by the trial 

judge when exercising an exclusionary discretion, based on the variety of 

factors that present themselves on any given set of facts, particularly the 

general discretion spoken of here that exists at common law and allows for 

the exclusion of Crown evidence where its prejudice exceeds its probative 

value. 

VIII. FOUR SEPARATE DISCRETIONS? 

The characterization of the trial judge’s exclusionary discretion as four 

separate discretions, while in my view supported by authoritative case law 

and by at least one set of legal scholars, 200 is not universally accepted. In 

fact, most scholars take a different view. 

McWilliams et al 201 (as well as Sopinka et al) 202 identify two “broad 

discretions” to which a trial judge may turn to exclude technically 

admissible evidence, namely the discretions to exclude where prejudice 

exceeds probative value and where the admission of evidence would 

197 

R v J-LJ, 2000 SCC 51, [2000] 2 SCR 600 at para 47, per Binnie J; Paciocco & 

Steusser, supra note 1 at 19; Corbett, supra note 2 at paras 715, 720, per La Forest J 

(dissenting). 

198 

Arcangioli, supra note 188 is the exception to the rule: see Section VI above. 

199 

Arp, supra note 2 at para 38. 

200 

Delisle et al, supra note 8 at 184–185. 

201 

McWilliams et al, supra note 11 at 5-2. 

202 

Sopinka et al, supra note 5 at para 2.54.


render the trial unfair. Paciocco and Stuesser identify the same two 

discretions, though they explain the second differently. Specifically, they 

say that the exclusionary discretion premised on trial fairness is “most 

likely to be invoked where evidence has been unfairly or illegally 

obtained.” 203 In this way, it seems these authors understand the scope of 

this discretion to be limited to a discrete context; McWilliams et al 

characterize it as a broad discretion, holding it out as one of the two bases 

under which a judge can exclude evidence. 204 

Admittedly, the characterization of the trial judge’s discretion as 

composed of the two aforementioned types of discretion also has some 

support in the case law. 205 However, it should be mentioned that, while 

both sets of aforementioned authors identify only two types of discretion, 

they do acknowledge “the discretion” retained by trial judge with respect 

to statutory rules of admissibility 206 and “the discretion” applicable to 

defence evidence, 207 but curiously do not characterize these as “kinds of 

exclusionary discretion.” 208 

With respect, this approach is flawed. First, each form of discretion 

identified in this article has a separate juridical source, that is to say a 

separate source in law that explains its existence. Second, some types of 

discretion operate based on radically different standards. By treating each 

kind separately, instead of lumping each together or opting to treat the 

discretionary power differently depending on context, the individual 

standards can be kept clear and the law applied correctly. For example, the 

general discretions to exclude applicable to Crown evidence and defence 

evidence, both expressly recognized by the Supreme Court in Seaboyer, 

speak to very different standards. By separating each the law is kept clear. 

203 

Paciocco & Stuesser, supra note 1 at 36-37. While the authors do not identify the 

source of this kind of discretion with the Supreme Court decision in Harrer (supra 

note 13), clearly the Harrer discretion is the one being referred to. 

204 

Delisle et al, supra note 8 at 204 support McWilliams’s view on the scope of the Harrer 

discretion. 

205 

See, for example, Buhay, supra note 14 at para 40. 

206 

Paciocco & Stuesser, supra note 1 at 37, 38; McWilliams et al, supra note 11, at 5-17. 

207 

Paciocco & Stuesser, supra note 1 at 38; McWilliams et al, supra note 11 at 5-4. Both 

sets of authors, while recognizing these discretions, characterize them as arising in 

certain contexts or as subsets of other, larger discretions. 

208 

The words chosen by Paciocco and Stuesser to describe what, in their view, are the 

two exclusionary discretions recognized in law: supra note 1 at 36.


In the relatively recent case of R v Fattah, 209 it was demonstrated that the 

standards belonging to different exclusionary discretions can be easily 

confused. There, the Court stated that technically admissible Crown 

evidence was subject to exclusion “where its probative value is substantially 

outweighed by its prejudicial effect…” 210 This is the standard appropriate 

for defence evidence, not that of the Crown. 211 

Nonetheless, trial judges must be mindful of not unduly fettering their 

exclusionary discretion power by misinterpreting or misapplying the law. 

Where the standard for exclusion pursuant to a particular discretion is 

met in accordance with applicable law, the evidence should be excluded in 

all circumstances. 

IX. CONCLUSION 

The residual discretion possessed by a trial judge to exclude what is 

otherwise admissible evidence has experienced a revolution. In Wray, the 

Supreme Court of Canada recognized that the trial judge has the 

discretion at common law to exclude legally admissible evidence, albeit in 

very narrow circumstances. Since then, the discretion has morphed into 

no less than four forms. 212 Firstly, the general discretion that can be read 

into statutory provisions allowing for exclusion of Crown evidence where 

its prejudice outweighs its probative value. Secondly, the general discretion 

that exists at common law which allows for the exclusion of Crown 

evidence where its prejudice outweighs its probative value. Thirdly, the 

209 

2007 ABCA 400, 422 AR 357 [Fattah]. 

210 

Fattah, supra note 209 at para 17 [emphasis added]. 

211 

While the law is clearly misstated by the Court, it is not clear if this standard is 

applied by it in deciding against excluding the evidence: Fattah, supra note 209 at 

paras 17-19. 

212 

In McWilliams et al, supra note 11 at 5-20.1 the authors’ reading of Buhay, supra note 

14, in conjunction with other relevant case law allowed them to conclude that the 

Supreme Court may be recognizing a new common law discretion to exclude evidence 

where its admission would bring the administration of justice into disrepute, the 

general standard by which the exclusionary rule contained with subsection 24(2) of 

the Charter operates. If this is so, a fifth form of discretion may soon need to be added 

to the list. It is worth noting that the minority judgment in Wray, endorsing the 

majority view of the Court of Appeal below, argued for the incorporation of this very 

ground into the judicial discretion to exclude recognized by all members of the 

Supreme Court as existing at common law: Wray, supra 16 note at 285.


general discretion that exists at common law which allows for the 

exclusion of defence evidence where its prejudice substantially outweighs 

its probative value; and fourthly, the “constitutionalized common law 

discretion” arising out of the Charter and the Harrer decision which allows 

for the exclusion of evidence to preserve a fair trial. 

This article has shed new light on how each of these discretions 

operates by analyzing each in relation to one another. It has been 

determined that the exclusionary discretions differ quite markedly in their 

scope. For example, the ambits of each of the discretions existing at 

common law, from largest to smallest, may be listed in the following order: 

i. The Seaboyer/Mohan discretion exercisable against Crown 

evidence 

ii. The Harrer discretion exercisable against Crown evidence 

iii. The Seaboyer discretion exercisable against defence evidence 

The Wray discretion is notably absent from the list. This is because, even 

though it may still be good law in that it has not been specifically 

discarded by the Supreme Court 213 it has fallen into disuse. To repeat, this 

is because it has been subsumed by the Seaboyer discretion exercisable 

against Crown evidence – the Seaboyer discretion captures all evidence that 

would have been captured by the Wray discretion. Nonetheless, it is worth 

underscoring where its ambit would lie with respect to the exclusionary 

discretions identified in the above list since, as is evident in this article 

itself, it is still the discretion commonly cited and used as a reference point 

by the many judges and the small group of legal scholars attempting to 

explain the scope and operation of particular exclusionary discretions 

existing in law. Properly understood, the Wray discretion belongs at the 

bottom of the list, since there is no question that its ambit is the most 

restrictive. 

Notwithstanding the findings of this article, it is readily apparent that 

the exclusionary discretions discussed herein are not easily distinguishable, 

nor easily comprehensible, and that there is probably overlap between 

them. In fact, much about the nature of some of these discretions remains 

a mystery. For example, is the balancing exercise that characterizes the 

operation of the discretion to exclude Crown evidence at common law 

213 

Corbett, supra note 2 at para 739–740, per La Forest J (dissenting); Seaboyer, supra note 

56 at paras 610–611. See also Sopinka et al, supra note 5 at para 2.57.


really independent of relevance? While I argue that the correct approach is 

to treat each separately, the balancing of probative value against prejudice 

according to the Supreme Court is still commonly considered as an aspect 

of legal relevance. 214 

As a final point, something need be said about the reasons for the 

dearth of literature on the trial judge’s exclusionary discretion. First, 

according to Weinberg, who studied the trial judge’s exclusionary 

discretion pre-1975, when only the Wray formula was in existence, it is 

largely explainable by the fact that the discretion to exclude is rarely 

exercised, especially where evidence is of high probative value. 215 While 

this claim is less supportable today in light of developments to the 

discretion that have widened its ambit, it still holds a kernel of truth in 

that where the probative value of evidence is high the exclusionary 

discretion would appear to have little room to operate since there is less 

chance that the prejudicial value will be able to outweigh it. 216 This is even 

truer when one considers some courts’ recognition that jury instructions 

can often reduce the level of prejudice – even serious prejudice – to the 

extent necessary to permit evidence which might not otherwise have 

sufficient probative value, to be received. That said, the trial judge’s 

exclusionary discretion remains a prominent factor in admittance into 

evidence decisions in many contexts. 217 This is true notwithstanding the 

fact that this discretion is “residual” in nature, and therefore of necessity, 

to be applied “sparingly so as not to marginalize or trump the many 

specific evidentiary rules which constitute the law of evidence.” 218 

Second, a principled approach, characterized by a balancing of 

prejudice against probative value, is pervading the law of evidence, making 

it difficult to isolate disparate forms of exclusionary discretion for 

214 

Mohan, supra note 2 at 20-21. See also Paciocco & Stuesser, supra note 1 at 38. For a 

recent trial level decision: see Morrisey, supra note 126. 

215 

See Weinberg, “Judicial Discretion”, supra note 186 at 38 and accompanying notes. 

216 

See, for example, R v Muchikekwanape, 2002 MBCA 78, 166 CCC (3d) 144 (Man CA) 

at paras 41-47 [Muchikekwanape]. 

217 

Welsh, supra note 6 (out-of court identification evidence); R v Pena, 1997 CarswellBC 

1202 (WL Can), 1997 CanLII 2087 (BC SC) (videotape evidence); Jabiaranha, supra 

note 7 at para 26-32 (scope of cross- examination); Powell, supra note 2 (post-offence 

conduct); Hawkins, supra note 18 (hearsay); Muchikekwanape, supra note 216 

(photographic evidence). 

218 

Welsh, supra note 6 at para 37.


discussion and withering away room for the free-standing discretion that 

exists at common law to operate. Telling examples of this are the 

emergence of the principled approach to hearsay in R v Khan, 219 and the 

reformulation of the similar fact evidence rule in R v Handy. 220 The latter 

change to the law of evidence adopts a balancing of probative value against 

prejudicial effect exercise into an exclusionary rule itself, 221 which raises 

the question of whether in the context of similar fact evidence, an 

exclusionary discretion, as understood in this article, can be said to exist at 

all, a question which is beyond this article’s purview. 

Third, “the modern trend has been to admit all relevant and probative 

evidence and allow the trier of fact to determine the weight which should 

be given to that evidence, in order to arrive at a just result.” 222 As noted by 

L’Heureux-Dube and Gonthier JJ (dissenting) in L (DO), “A just result is 

best achieved when the decision-makers have all relevant and probative 

information before them.” 223 The Supreme Court of Canada’s recent 

emphasis on the danger that juries may come to an incorrect decision in 

the absence of evidence, militating towards courts receiving more and 

more evidence, does not bole well for the exercise of the judicial discretion 

to exclude. 224 

Given that it is here to stay, efforts must nevertheless be made to 

better understand the nature of the trial judge’s exclusionary discretion. 

While its ambit has changed over the years, there is no question of the 

ongoing need for an exclusionary discretion exercisable in the hands of a 

trial judge to preserve a fair trial and to prevent the untoward effects a 

mechanical application of rules of admissibility (whether common law or 

statutory in origin) can have. Where an exclusionary discretion is not 

exercised when it should be, it is possible that evidence which is highly 

prejudicial will be received with all the attendant dangers that this entails, 

219 

[1990] 2 SCR 531, 59 CCC (3d) 92. 

220 

Handy, supra note 142. 

221 


222 

R v Nikolovski, [1996] 3 SCR 1197 at para 19, 141 DLR (4th) 647, per Cory J, citing 

L’Heureux-Dube and Gonthier JJ (concurring) in L (DO), supra note 24. For further 

support of this proposition, see Corbett, supra note 2 at 720, per La Forest J 

(dissenting) and para 51, per Dickson CJ and Lamer J. 

223 

L (DO), supra note 24 at 454-455. 

224 

Though this trend should not be viewed as a return to the Wray standard for the 

exclusion of technically admissible evidence.


not least the prospect of false conviction. Properly used, the trial judge’s 

residual exclusionary discretion can be used to minimize the risk of 

miscarriages of justice, and more specifically, of wrongful convictions. 225 

Understanding how the trial judge’s residual exclusionary discretion 

operates in its various forms is crucial because of the serious consequences 

exclusion of a piece of evidence can have on criminal trials. Often when 

an exclusionary discretion becomes an issue at trial, the evidence in 

dispute will impact the ultimate issue of guilt or innocence. 226 The judicial 

discretion to exclude is a very important rule of evidence because it can 

exclude otherwise admissible evidence, the presence or absence of which 

can have serious implications for the trier of fact in their role of coming to 

the truth and for the trial judge as trier of law in their role of preserving a 

fair trial for all parties, especially the accused. 

225 

R v Khela, 2009 SCC 4, [2009] 1 SCR 104 at para 90. 

226 

A prime example of this is R v Corbett, supra note 2. The impugned evidence, the 

accused’s earlier conviction for non-capital murder, sought to be excluded by the 

defence at trial, stood to impact the ultimate issue of guilt or innocence with respect 

to the present charge of murder. Since credibility had become the primary issue with 

which the jury had to grapple, evidence of this kind could turn its mind one way or 

the other. The Supreme Court was forced to decide whether or not the trial judge in 

the case should have excluded the evidence of the accused’s prior conviction (holding 

that he had a discretion to do so which was not ousted by section 12 of the Canada 

Evidence Act), deciding on the facts of the case that he had not run afoul of the Charter 

or acted improperly by allowing the evidence to be introduced.

Tattoos and Police Dress Regulations 

J O H N B U R C H I L L 

And the sign said, “long-haired freaky people need not apply” 

So I tucked my hair up under my hat, and I went in to ask him why 

He said, “You look like a fine upstanding young man, I think you'll do.” 

So I took off my hat, I said, “Imagine that, huh, me working for you.” 

“Signs” (1970), The Five Man Electrical Band 


O 

n October 15, 2012, Scotland Yard Police Commissioner 

Bernard Hogan-Howe issued a directive banning all officers and 

staff from getting tattoos that cannot be covered by everyday 

clothing as they “damage the professional image” of the force. The 

directive also required all employees to register details of their currently 

“visible” tattoos with their supervisors before November 12, 2012 or risk 

discipline – including dismissal. 1 

Police dress regulations play a vital role in enhancing both the public 

image of the police and the internal morale or esprit de corps of its 

members. Police officers are issued a specific uniform and are expected to 

conform to a significant list of physical appearance standards. 

Traditionally the showing of tattoos is not among this list. However, with 

more and more people entering the workforce with tattoos, it is not 

surprising that some amount of control on this type of expression is 

starting to be regulated. 

In fact, the Scotland Yard directive is not unique as a number of other 

police agencies in the United Kingdom, the United States, and other 

 

John Burchill holds a J.D. from the University of Manitoba. He was called to the Bar 

in 2011. Until 2012 he was a member of the Winnipeg Police Service where he 

oversaw the investigation of hate crimes and policy development as part of his duties. 

He currently maintains a private law practice in Winnipeg. 

1 

“Tattoo ban for Metropolitan Police officers”, BBC News (October 17, 2012) online: 

BBC News .


common-law countries have recently passed regulations either banning the 

display of tattoos completely or limiting their display subject to the 

discretion of the Chief of Police. Such bans are intended to maintain a 

public image of neutrality and bias free policing. 2 

In late 2007 Menno Zacharias, then Deputy Chief of the Winnipeg 

Police Service, recommended the Service explore drafting such a policy but 

the recommendation was not acted upon. According to Zacharias: 

Image and branding are important in both the private and public sector. 

Organizations such as police agencies should and are concerned with the public 

image they project. The use of uniforms and the stress placed on uniformity of 

action by members of the organization are intended to project a particular image 

that not only projects the authority of the position but also reinforces the values 

of the community police serve. Criminal gangs have long projected their image 

by decorating themselves with tattoos. Police officers openly displaying tattoos in 

my view undermines the image police agencies should be trying to project. 3 

With the coming into force of the new Manitoba Police Services Act on 

June 2, 2012, and the creation of municipal police boards that are 

empowered to establish policies for the effective management of the police 

service and to ensure that police services are delivered in a manner 

consistent with community needs, values and expectations, 4 the intent of 

this paper is to review the issues that have arisen, or could arise, as a result 

of such a directive being put forward again. The intent is not, however, to 

provide an in-depth analysis of all the substantive and procedural rights 

and remedies involved. 

2 

A sample policy from the East Palo Alto P.D. can be found online at 

. Similar “no show” policies exist in Los Angeles (CA), San Diego 

(CA), Honolulu (HI), Houston (TX), Baltimore (MD), Dallas (TX), St. Louis (MO), 

Huntsville (AL), New York State (NY), Des Moines (IA) and Orland Park (IL) to name 

a few. Rules in all 43 police forces in England and Wales prevent officers showing 

tattoos which could cause offence to colleagues or the public. Similar regulations were 

recently introduced in several Australian states as well. 

3 

Menno Zacharias, personal communication, October 25, 2012. 

4 

Police Services Act, SM 2009, c 32, CCSM c P94.5 ss 28(1)(a) and 28(2)(c). For 

background on the Act see Jason E Roberts, “Bringing the Thin Blue Line into Line: Bill 

16, The Police Services Act” (2010) 34:3 Man LJ 72.

Tattoos and Police Dress Regulations 195 

II. TATTOOS AND THE CURRENT GENERATION 

Tattoos date back thousands of years and reflect an affinity for 

humans to mark their bodies to reflect their social, cultural and individual 

identities. They also reflect one of the earliest known forms of 

communication. A tattoo could identify the wearer with a certain group 

while distinguishing him from others. Moreover, the tattoo could 

symbolize or reflect status and place within the society. While it may 

simply be “body art”, it could also be a means by which people express 

their cultural or religious identity, their sense of individuality or their 

personal thoughts, opinions and beliefs. 

While only a few generations ago tattoos were associated with 

criminals, gang members, and other delinquent or marginalized groups, 5 

several recent surveys have shown that tattoos have become mainstream in 

today’s society, particularly among the current generation. Tattoos are to 

this generation what long hair was to their grandparent’s generation. But 

like those generations before them such self-expression has been viewed by 

some as “freaky” and unacceptable in some workplaces—conveying with it 

unacceptable images of laziness, disrespect and/or unprofessionalism. 

In 2010, the Pew Research Center released the results of a 

comprehensive survey into how the current generation in the United 

States viewed their lives, futures and politics, which found that nearly fourin-ten 

(38%) of Millennials (adults coming of age in 2000 or later) have at 

least one tattoo. In that same report, thirty-two percent of Gen Xers 

reported having tattoos, while only 15% of Baby Boomers and 6% of 

Silents (adults born before 1946) had tattoos. 6 

5 

See e.g. Mark Burgess & Louise Clark, “Do the ‘Savage Origins’ of Tattoos Cast a 

Prejudicial Shadow on Contemporary Tattooed Individuals?” (2010) 40 J App Soc 

Psych 746 at 746-747 and Margo DeMello “Not Just for Bikers Anymore: Popular 

Representations for American Tattooing”, (1995) 29 J Pop Culture 37. 

6 

The Pew Research Centre, Millennials: A Portrait of Generation Next (February 2010) 

online: . 

See also “One in Five U.S. Adults Now Has a 

Tattoo”, The Harris Poll (February 2012) online: , which found that 30% of 

American adults aged 25-29 and 22% of those aged 18-24 had tattoos, while only 11% 

of those aged 50-64 and 5% of those over 65 did [Pew Research Centre].


The survey also found that nearly 70% of those adults with tattoos 

had more than one, with a full 18% having six or more. However, of 

adults aged 30 and older who had tattoos, nearly half (47%) had just one. 

Most adults with tattoos, regardless of age, didn’t display them publicly 

with the vast majority (72%) indicating that their tattoos were not usually 

visible. 7 

Police departments are always recruiting. They target the current 

generation, actively looking for outgoing, creative and enthusiastic young 

adults to fill the ranks being vacated by retiring Baby Boomers. In fact the 

majority of police officers serving today have less than ten years in the 

police workplace, with the vast majority of them working front line 

uniform duties. While there is a comprehensive scheme to regulate almost 

every other facet of an officer’s appearance, tattoos are completely absent 

from most police dress regulations in Canada. 

A. Police Dress Regulations 

Many workplaces have rules about dress, physical appearance and 

some even specify the wearing of a particular uniform. Most police dress 

regulations state that dress and deportment play a vital role in enhancing 

both the public image of the police and the internal morale or esprit de 

corps of its members. 

To this end members are issued a specific uniform and are expected to 

conform to a significant list of physical appearance standards dealing with 

everything from the colour of an officer’s socks to their hair length 

(including the length and size of beards, sideburns and moustaches), use of 

makeup, wearing of jewelry and even mirrored sunglasses. Usually these 

policies state that officers may only wear those articles of clothing and 

equipment approved by the Chief of Police and while in uniform will not 

wear pins, badges, ribbons or any adornments on their uniform which are 

not approved by the Chief of Police. 8 

7 

Pew Research Centre, supra note 6 at 57-58. 

8 

See e.g. Vancouver Police Department, Regulations and Procedures Manual, Policy 5.4.7, 

s 14 (2009) online: , 

which states that “Exceptions to the provisions of 

"Personal Grooming and Appearance" as specified in this section may occur with 

permission of the Chief Constable or designate for valid reasons (for example medical 

or religious grounds).”


Such anti-adornment policies are common in policing and were 

designed to establish a convention of neutrality – that the police are free 

from bias or partisan influences. While such policies do not deal with the 

display of tattoos – which can also convey meaning such as group 

affiliation or the values, beliefs, thoughts or opinions of the wearer – the 

main body of these regulations date back many years when the then 

current generation had neither tattoos nor body piercings. Furthermore, 

considering tattoos are not adornments to a member’s uniform, they are 

not likely to be captured by the comprehensive dress regulation scheme 

without a specific amendment. 

To date tattoos have been the subject of only one police grievance 

arbitration in Canada. 9 However, based on recent labour law arbitrations 

regarding the display of body piercings in some private sector workplaces 

in Canada and the move to ban the display of tattoos in several US and 

common-law police forces, it is anticipated that it will become the subject 

of a future grievance as more of the current “tattooed” generation become 

police officers, while the non-tattooed generation hold senior management 

(rule-making) positions. 

In fact, in a recent study by Mark Burgess and Louis Clark, the 

authors found that people who were not tattooed and who were not 

considering getting a tattoo displayed a strong association with the 

traditional delinquent tattoo stereotype. 10 

As police officers are representative of their community, this paper 

could be seen as a preview to a possible labour grievance where the nature 

of a member’s tattoo results in a policy change because of (a) a public 

complaint; (b) an internal complaint; or (c) a preemptive move by senior 

management based on negative stereotypes to avoid such a complaint, 

whether or not such a move is based on any particular officer. 

In fact, this is what happened within the Ontario Provincial Police 

(OPP). In April 2010 a policy was adopted that required members to cover 

up any tattoos that compromised the professional image of the 

department. Shortly thereafter, on April 21, 2010 Constable Jason 

Soblcowicz was ordered to cover up his tattoos after a visiting police 

inspector reported seeing “what looked like a ‘gangbanger’ who had put 

9 

Ontario Provincial Police and Ontario Provincial Police Association (Tattoo Policy Grievance) 

(2 August 2011), (Arbitrator Randi Abramsky). 

10 

Mark Burgess & Louise Clark, supra note 5 at 761.


on a uniform and stolen a cruiser.” Constable Soblocowicz complied with 

the order and subsequently filed a personal grievance while his union filed 

a policy grievance. 

During the arbitration hearing Provincial Commander for Corporate 

Services Noreen Alleyne testified that the provincial police uniform was an 

identifier, a symbol, a brand, and that employees should look the same in 

it. Appearance was important because it conveyed trustworthiness: 

There was a general concern [at the Results Driven Policy Committee meeting] 

that members displaying tattoos were less than professional. There was concern 

that the public might have a negative impression of an officer “totally covered in 

tattoos” [and that] such tattoos were likely to raise questions of confidence and 

trust by the public and did not reflect a professional appearance. She recalled 

stating that, as a civilian and an older, vulnerable adult, if she were stopped by an 

officer at night in an unmarked car who had visible tattoos, she would be 

concerned if he or she was truly a police officer or not. 11 

While Arbitrator Abramsky found the objective of the policy was 

reasonable (that of promoting a professional image of the department to 

the public) it conflicted with the officers’ competing interest in his own 

appearance. “Tattoos are also a form of self-expression… they may 

comprise a fundamental part of the identity of the employee or have 

personally philosophical significance to the employee.” 12 

Ultimately Arbitrator Abramsky found the policy to be invalid. Not 

only because of the expressive nature of tattoos, but also because of the 

stigma attached to having to cover them up; the lack of demonstrative 

evidence showing the adverse effect tattoos had on the business enterprise 

– especially when officers had worn tattoos for many years (even decades) 

without incident or complaint; and the failure to show such policies 

existed anywhere else in the police world. 13 

11 

Supra note 9 at 3. 

12 

Ibid at 17, citing Re Thrifty (Canada) Ltd and Office and Professional Employees 

International Union, Local 378 (2002), 106 LAC (4th) 420 (available on WL Can) and 

(2001), 100 LAC (4th) 162 (available on WL Can) (BC Arb Brd), in regard to some 

items of attire. 

13 

Ibid. See also Calgary Co-operative Ltd. v Union of Calgary Co-op Employees (2006), 145 

LAC (4th) 296 (available on WL Can), in which a uniform dress code requiring all 

shirts be tucked in was successfully challenged by larger employees who felt humiliated 

by the requirement. Arbitrator Ponak agreed, finding the employer had failed to 

establish any business rationale for the policy and did little or no market research 

showing a nexus between the “tuck-in rule” and its business strategy.


Considering that several major police departments in the world, 

including the Vancouver Police Department, 14 do have such polices in 

effect, with more being added yearly, suggests we are merely at the 

beginning of the wave and that Arbitrator Abramsky’s decision may not be 

the last word on this topic in Canada as tattoos become more prominent 

and diverse in mainstream society. 

III. DRESS CODES AND EMPLOYMENT 

A. Human Rights Issues 

Generally, workplace dress codes do not contravene the Human Rights 

Code 15 so long as they do not impose a burden, obligation or disadvantage 

on an individual or group not imposed on others. Basically, the Code was 

not intended to address issues of personal convenience or individual 

preference. However, any dress standard set by an employer should 

advance the business purpose while considering the dignity of the 

employee and the right of the employee, as far as possible, not to have to 

make a permanent change to their personal appearance. 

However, certain uniform job requirements or dress codes may still 

come into direct conflict with religious or cultural dress requirements. 

While discrimination based on a number of enumerated characteristics is 

prohibited in employment, 16 human rights legislation across Canada does 

14 

Supra note 8 at Policy 5.4.9. 

15 

All provinces and the Federal government have enacted similar Human Rights Codes. 

The Manitoba Human Rights Code, SM 1987-88, c 45, CCSM c H-175 [the Code] will be 

used as an example. 

16 

Ibid, s 9(2). These characteristics include: 

(a) ancestry, including colour and perceived race; 

(b) nationality or national origin; 

(c) ethnic background or origin; 

(d) religion or creed, or religious belief, religious association 

or religious activity; 

(e) age; 

(f) sex, including sex-determined characteristics or 

circumstances, such as pregnancy, the possibility of 

pregnancy, or circumstances related to pregnancy; 

(g) gender identity; 

(h) sexual orientation; 

(i) marital or family status;


allow for certain limitations or restrictions on those rights if they are based 

on a bona fide occupational requirement, or a bona fide justification. For 

example, the Code provides that: 

14(1) No person shall discriminate with respect to any aspect of an employment 

or occupation, unless the discrimination is based upon bona fide and reasonable 

requirements or qualifications for the employment or occupation. 17 

Therefore, when dress codes or uniform policies conflict with the 

enumerated characteristics under section 9(2), there is a duty on employers 

to accommodate the person unless discrimination is reasonable in the 

circumstances for that person’s employment or occupation. 18 

While the policy of the Manitoba Human Rights Commission is that 

they do not have authority with respect to dress codes unless there is an 

allegation that the existence or application of the dress code discriminates 

on the basis of a protected activity or characteristic, 19 the Ontario Human 

Rights Commission specifies a number of factors that should be 

considered when promulgating a dress code vis-à-vis religious observances: 

i. What is the exact nature of the religious observance? 

ii. What is the reason for the uniform or dress code? 

iii. What measures can be taken to accommodate the person? Are there 

alternatives? 

iv. Are there health or safety factors involved? 

v. If so, do they involve the health or safety of the employee alone, or are 

there consequences for other employees? 

vi. If so, has the employer shown that to accommodate the employee 

would create a health or safety hazard that would amount to undue 

hardship for the employer? 

As a rule, uniforms such as school uniforms and work uniforms that have no 

health or safety rationale can be modified easily to permit the person concerned 

(j) source of income; 

(k) political belief, political association or political activity; 

(l) physical or mental disability or related characteristics or 

circumstances, including reliance on a service animal, a 

wheelchair, or any other remedial appliance or device; 

(m) social disadvantage. 

17 

Ibid, s 14(1). 

18 

British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 

3 at para 54, 176 DLR (4th) 1 [Meiorin]. 

19 

Manitoba Human Rights Commission, Policy and Procedures Manual, Policy #L-22 

(February 25, 2005), online: .


to wear the required item(s) of clothing. Clothing or gear with a health or safety 

rationale may constitute a reasonable occupational requirement. Nevertheless the 

employer is obliged to accommodate the employee, for example, by seeing 

whether the gear can be modified to permit the person to wear the religious dress 

safely (subject to the undue hardship test), or by examining whether the 

employee can be transferred to another job that may be available in the company 

that does not require the clothing or gear. 20 

In addition to human rights statutes the Charter of Rights 21 also has 

application to government employers. Specifically sections 2, 7 and 15 

provide that everyone has the freedom of religion, thought, belief, opinion 

and expression; the right to life liberty and security of the person; and 

freedom from discrimination based on a number of enumerated and 

analogous grounds similar to those found in human rights statutes. 

As tattoos can convey meaning whether or not they are of any 

religious or cultural significance, they may also be captured by section 2(b) 

of the Charter. However, such rights do not exist in a vacuum, but are 

shaped and formed both by the particular context in which they are 

exercised and the rights of others. Speaking of hate speech, in R v Zundel, a 

majority of the Supreme Court stated: 

The purpose of s. 2(b) is to permit free expression to the end of promoting truth, 

political or social participation, and self-fulfillment. That purpose extends to the 

protection of minority beliefs which the majority regard as wrong or false. Tests 

of free expression frequently involve a contest between the majoritarian view of 

what is true or right and an unpopular minority view. 22 

However, free speech does not include a right to have one’s message 

listened to. In fact, an important justification for permitting people to 

speak freely is that those to whom the message is offensive may simply 

“avert their eyes” or walk away. In cases where it is not possible to walk 

away, the form of expression must be compatible with the function or 

intended purpose of the place or forum of the expressive activity. 23 

20 

Ontario Human Rights Commission, Policy on Creed and the Accommodation of Religious 

Observances at 11 (December 2009), online: . 

21 


Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”). 

22 

R v Zundel, [1992] 2 SCR 731, 95 DLR (4th) 202. 

23 

See also Ross v New Brunswick School District No 15, [1996] 1 SCR 825, 171 NBR (2d) 

321 and R v Keegstra, [1990] 3 SCR 697, 184 AR 217 where anti-Semitic views were


For example, in 1989 the RCMP instituted a change in their dress 

policy that allowed practicing members of the Sikh religion to wear a 

turban and other religious items. A court challenge was subsequently 

launched by members of the RCMP Veterans Association challenging the 

constitutional validity of the incorporation of religious symbols in the 

significant (or dress) uniform of the RCMP pursuant to sections 2, 7 and 

15 of the Charter. 

The Veterans Association felt that the neutrality of the RCMP was 

undermined if the public were obliged to accept a police officer wearing a 

religious symbol as part of their uniform. However, at trial, Justice Reed of 

the Federal Court of Canada held that the interaction of a member of the 

public with a police officer who carries an identification of his religious 

persuasion as part of his uniform does not constitute an infringement on 

the former’s freedom of religion as there is no necessary religious content 

to the interaction between the individuals and there is no compulsion or 

coercion to participate in, adopt or share the officer’s religious beliefs or 

practices. Furthermore, it was noted that the British Army for years had 

allowed Sikh’s to wear turbans and beards. 

The matter was subsequently referred to the Federal Court of Appeal 

which unanimously upheld the trial judge’s decision, stating that: 

Furthermore, we are not persuaded that the incorporation of the turban by itself 

created a reasonable apprehension of bias. Whether or not there is a convention 

of neutrality in policing […] if the appellant’s argument were fully accepted, it 

might lead to the absurd situation that a Christian police officer could interact 

only with other Christians, a woman police officer could only interact with other 

women, a Black police officer only with other Blacks, a Native Canadian only 

with other Native Canadians, and, presumably, a White only with other Whites. 

This could not be tolerated in this country. 

[…] 

The RCMP is a great Canadian institution with a proud and respected tradition. 

By adjusting the uniform to take into account the concerns of the Sikh 

community, the Commissioner was not seeking to weaken the institution but to 

strengthen it. The expressed purpose of the change was to facilitate recruitment 

of minorities, to enable the Sikh community to exercise its religious freedom and 

to reflect the newer multicultural nature of Canada. The Commissioner 

obviously felt that with proper selection, training, supervision, and discipline, 

found to be incompatible with the position of public school teacher.


individuals of all religious persuasions could serve in the RCMP impartially and 

that the force would be made stronger by this program. 24 

Although the challenge to the RCMP’s dress code was made pursuant 

to the Charter, it is obvious from the judge’s ruling that the argument 

would have failed whether it was under the Charter or the federal Human 

Rights Act as the benefits of accommodating the Sikh religion far 

outweighed those of the police dress code in the courts opinion. 

More recently in Multani v Commission Scolaire Marguerite-Bourgeoys, the 

Supreme Court set aside a decision of the Quebec Court of Appeal that 

had upheld a school division’s right to prohibit a Sikh student from 

wearing his kirpan (a religious object similar to a dagger and made of 

metal) on school grounds. While the school’s decision to prohibit the 

wearing of the kirpan was motivated by a pressing and substantial objective 

to ensure a reasonable level of safety at school, it could not be justified as 

minimally impairing the student’s rights. In part the Court held that there 

was no evidence to support the argument that the kirpan was a symbol of 

violence and that it should be prohibited because it sent a message that 

using force was necessary to assert one’s rights and resolve conflict: 

A total prohibition against wearing a kirpan to school undermines the value of 

this religious symbol and sends students the message that some religious practices 

do not merit the same protection as others. On the other hand, accommodating 

[the student] and allowing him to wear his kirpan … demonstrates the 

importance that our society attaches to protecting freedom of religion and to 

showing respect for its minorities. 25 

24 

Grant v Canada (Attorney General), (1995) 125 DLR (4th) 556, at 557-59, 184 NR 346. 

Also see Fraternal Order of Police Lodge No 12 v Newark Police Department (1999), 170 F 

3d 359 (available on WL) (3d Cir) in which the court found that a complete ban on 

beards negatively affected the religious beliefs of two Sikh officers. That decision was 

followed in Riback v Las Vegas Metropolitan Police Department (2008), 104 Fair Empl 

Prac Cas 34, 2008 WL 3211279 (Nev Dist Ct), which granted summary judgment to 

an officer whose beard conflicted with the department’s no-beard policy but whose 

religious practices (Orthodox Jew) required him to have one. However, the Court 

confined their ruling to the officer’s current position which did not involve public 

contact. Furthermore it did not grant summary judgment regarding his request to 

wear a Yarmulke, which was not allowed under the department’s uniform headgear 

policy. 

25 

Multani v Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para 79, [2006] 1 

SCR 256. Although this is a school decision, like policing it is also a tightly controlled 

environment.


In light of such decisions many police departments across Canada 

changed their uniform dress policies to accommodate the wearing of 

religious symbols. As such, accommodation for items that are required to 

be worn by a member’s religion or culture (i.e. clothing, jewelry, hairstyle), 

is provided for in most police regulations. However, tattoos are not. 

This is not just a narrow police issue as other public service agencies 

have also been looking at restricting tattoos in their dress and grooming 

policies – from military personnel, 26 to firefighters, 27 nurses and other 

healthcare practitioners. 28 

In fact, on January 14, 2013, Arbitrator Slotnick declared a policy that 

restricted tattoos at the Ottawa Hospital to be void and unenforceable. 29 

As a result of an amendment to the hospital’s dress code prohibiting 

visible, excessive body piercings or large uncovered tattoos, by employees 

during working hours, a policy grievance was filed by the Canadian Union 

of Public Employees. At the hearing several witnesses testified that their 

tattoos or piercings were a “significant part of their identity and mode of 

expression”. 

The hospital argued that tattoos and piercings could undermine a 

patient's confidence in an employee's professionalism, which in turn 

would negatively impacted health care outcomes. However, like the OPP, 

the hospital was unable to produce any objective evidence to support this 

proposition and, considering the hospital wouldn't accede to a patient's 

negative views about an employee's race or ethnic background, Slotnick 

26 

Lance Bacon, “Troops voice anger over new grooming rules”, Army Times (May 19, 

2012), online: http://www.armytimes.com/news/2012/05/army-troops-voice-angernew-grooming-rules-051912w/. 

The actual tattoo policy can be found at s 1-8(e) of 

Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), RAR 

issue date: 11 May 2012, online on line at . 

27 

Jane Jerrard, “LAFD Inks Groundbreaking Policy on Tattoos”, FireRescue Magazine 

(September 2008), online: . 

28 

Aedan Helmer & Kelly Roche, “Ottawa hospital staff told to hide tattoos”, Toronto 

Sun (April 15, 2011), online: . 

29 

Ottawa Hospital v CUPE Local 4000, 2013 CanLII 643 (ON LA). Contra Baldetta v 

Harborview Medical Center, 116 F 3d 482, 1997 WL 330648 (9th Cir CA) [Baldetta]. 

See also Heather V Westerfield et al, “Patients’ Perceptions of Patient Care Providers 

with Tattoos and/or Body Piercings” (2012) 42:3 J Nurs Adm 160.


queried why should it accept them regarding an employee’s bodily 

adornment that reflected “the diversity that anyone would expect in a bigcity 

hospital”? In the end, Slotnick found that the hospital had “attempted 

to fix a problem that does not exist” and declared the policy void and 

unenforceable. 

A similar situation arose when in 2009, Nadine Bélisle, a daycare 

worker, was successful in overturning an order to cover up a tattoo of a 

dragon on her right shoulder by her employer, the CPE La Pirouette 

daycare. Justice Bouchard of the Quebec Superior Court agreed that the 

tattoo ban violated her rights for freedom of expression. While the 

daycare’s ban was initially upheld by a labour arbitrator, Justice Bouchard 

wrote that the ban rests on prejudices. “Tattooing nowadays is a 

phenomenon that cuts across all levels of society. If it was once associated 

with delinquents, that’s no longer the case.” 30 

B. Collective Agreements 

In Parry Sound v OPSEU 31 the Supreme Court held that extrinsic 

statutes such as the Human Rights Code are incorporated into each 

collective agreement over which an arbitrator has jurisdiction. As noted by 

Justice Iacobucci: 

[I]t is my conclusion that the Board was correct to conclude that the substantive 

rights and obligations of the Human Rights Code are incorporated into each 

collective agreement over which the Board has jurisdiction. Under a collective 

agreement, the broad rights of an employer to manage the enterprise and direct 

the work force are subject not only to the express provisions of the collective 

agreement, but also to statutory provisions of the Human Rights Code and other 

employment-related statutes. 32 

Similarly, where no management rights clause is inserted into a 

collective agreement, it is usually deemed to exist. For example many 

collective agreements between a municipality or police board and its local 

police association do not contain a specific management rights clause; 

however, the right of management to make rules for the control, 

30 

Syndicat des travailleuses des Centres de la petite enfance du Saguenay-Lac-St-Jean-FSSS-CSN c 

Girard, 2009 QCCS 2581 at para 29 (available on WL Can), aff’d 2011 QCCA 1620 

(available on WL Can). 

31 

Parry Sound (District) Social Services Administration Board v Ontario Public Service Employees 

Union (OPSEU), Local 324, 2003 SCC 42, [2003] 2 SCR 157. 

32 

Ibid at para 23.


governance, well-being and efficiency of its police service is often explicitly 

assigned to the Chief of Police by statute. 33 

Therefore police agencies that have implemented a tattoo policy may 

claim that it is management’s right to do so and that it is not subject to 

arbitration. However, this absolute right is tempered in Manitoba by 

section 80(2) of the Labour Relations Act 34 and the principles laid out in 

KPV Co Ltd v Lumber and Sawmill Workers’ Union, which state that any rule 

unilaterally introduced by a company, not subsequently agreed to by a 

union must satisfy the following requisites: 

1. It must not be inconsistent with the collective agreement. 

2. It must not be unreasonable. 

3. It must be clear and unequivocal. 

4. It must be brought to the attention of the employee affected 

before the company can act on it. 

5. The employee concerned must have been notified that a breach of 

such rule could result in discharge if the rule is used as a 

foundation for discharge. 

6. Such rule should have been consistently enforced by the company 

from the time it was introduced. 35 

Like the OPP tattoo policy grievance mentioned earlier, many agencies 

take the position that tattoos do not support the corporate image of 

neutrality and bias free policing, claiming that the restriction is justified in 

the interests of fostering harmonious race relations both within the 

department and within the community. The policy is clear and 

unequivocal, it was brought to the attention of all employees through the 

33 

For example see The City of Winnipeg Charter, SM 2002, c 39, s 166(4) and the City of 

Winnipeg, by-law, No 783/74, Winnipeg Police Service By-law. Police Service By-law 

#783/74, s 2, which states that the Winnipeg Police Service “shall obey all lawful 

directions and be subject to the orders of the Chief of Police.” 

34 

The Labour Relations Act, SM 1987 c L10, CCSM c L10, s 80(2). This section states 

that every Collective Agreement shall be deemed to contain the following provision: 

“In administering this agreement, the employer shall act reasonably, fairly, in good 

faith, and in a manner consistent with the agreement as a whole”. This is not a typical 

provision in labour statutes and, in the absence of such a provision elsewhere; it is a 

matter of interpretation whether there is an implied reasonableness qualification. 

35 

Lumber and Sawmill Workers’ Union, Local 2537 v KPV Co Ltd (1965), 16 LAC 73 

(available on WL Can) (Ont Arb Brd) [KPV].


routine directive notification system and that it applies to all members 

equally and without discrimination. 

While the agency position would be that the dress regulations fall 

outside the collective agreement, most officers are provided with a 

uniform that they are expected to wear. Furthermore, every officer is 

entrusted “with the responsibility for maintaining a high standard of dress 

and deportment. Uniformity is desirable and conformity to Department 

standards is required.” 36 As such the dress regulations may be incorporated 

into the collective agreement, if not explicitly then inferentially as to what 

a presentable appearance is. If the policy is unreasonable it may thus 

properly be the subject of the grievance process. 37 

Furthermore, most collective agreements also contain a grievance 

procedure which is broad in scope, sufficient to include any dispute over 

terms and conditions of employment. For example Article V(2) of the 

Collective Agreement between the City of Winnipeg and the Winnipeg 

Police Association states: 

The word “grievance” used throughout this Article shall mean a complaint 

involving any matter relating to wages, hours of work, other terms or conditions 

of employment, or any other working condition of a member of the Police 

Service, and shall include, without restricting the generality of the foregoing, any 

difference between the parties to the meaning, interpretation, application, or 

alleged violation of this Agreement, or any part thereof. 38 

In addition, as previously outlined by Arbitrator Abramsky, the 

rationale for bringing forward the policy may be unreasonable in the first 

place if it was designed to target a specific officer; it failed to show a 

rational connection between the policy and the intended health or safety 

hazard it was trying to prevent; and that officers with tattoos could not be 

accommodated in a less drastic way without undue hardship to the 

employer. 


Supra note 14 at 5.4.4. 

37 

See Audmax Inc v Ontario (Human Rights Tribunal), 2011 ONSC 315 at para 61, 328 

DLR (4th) 506. Although not a labour arbitration case, the issue was with respect to a 

dress code and whether “tight short skirt and leggings”, an anklet that “jingled”, opentoed 

“slippers” and a “cap” (“Hijab”), were consistent with the company’s dress code 

that explicitly required the wearing of “business attire” at all times. 

38 

Collective Agreement between the City of Winnipeg and the Winnipeg Police 

Association (2010-2012), as cited in the City of Winnipeg (Winnipeg Police Service) v The 

Winnipeg Police Association (23 August 2011), Winnipeg (Arbitrator Arne Peltz) at 74.


While a less stringent policy had previously been adopted by the OPP 

in which only tattoos deemed illegal, offensive, immoral, or presenting an 

unprofessional appearance had to be covered up, such a policy was too 

subjective and it was changed as the force did not want to become the 

arbiter of good taste and morality. However, as previously noted, while 

most Dress Regulations allow an officer to seek an exemption from the 

Chief of Police to wear special clothing, jewelry or hairstyles that are 

required for religious or cultural reasons – the public display of tattoos is 

generally not required for religious or cultural reasons. 39 

Furthermore, the position of many agencies is that tattoos are 

analogous to wearing adornments or pins and that a police officer’s 

uniform is not a forum for fostering public discourse or expressing one’s 

personal, political or cultural beliefs. For example, the City cited Re 

Treasury Board and Almeida & Capizzo, in which an arbitration panel 

upheld the disciplining of two Custom’s officer who refused to remove 

union pins from their uniform. The officers argued, in part, that the 

wearing of the pins was a fundamental freedom protected by section 2(b) 

of the Charter. In dismissing their argument the arbitrator found 

management’s position reasonable: 

[Customs officers] are peace officers; there is a very good reason for them to be 

uniformed, easily recognizable, to exude the appearance of authority and control. 

It can only be supportive of that role not to have that appearance diminished, or 

subject to debate or question by the general public … [the message on the 

buttons] could well have drawn the grievors’ into public debate with those who 

may, for one reason for another, have chosen to take an opposing view … [with] 

the potential for bringing the operations of the employer into public 

confrontation or debate. 40 

39 

However see EEOC v Red Robin Gourmet Burgers, Inc, 2005 WL 2090677 (WD Wash 

Aug 29, 2005). In that case an employee claimed to practice an Egyptian-derived faith 

known as Kemet. As a rite of passage he obtained tattoos encircling his wrists made up 

of a verse from Egyptian scripture. Although Red Robin prohibited employees from 

having visible tattoos, the employee claimed that intentionally covering his tattoos was 

a religious sin. No complaints had been received about the employee and the court 

found no evidence that Red Robin could not accommodate the employee. The court 

rejected Red Robin’s argument that visible tattoos were inconsistent with the 

company’s goals of presenting a family-friendly image. The case was ultimately settled 

with Red Robin entering into a consent decree paying the employee $150,000 and 

making substantial policy and procedural changes. 

40 

Re Treasury Board (Revenue Canada – Customs & Excise) and Almeida & Capizzo (1989), 3


In a similar ruling, the 5 th Circuit Court of Appeals upheld the 

Arlington Police Department’s no-pins policy requiring that an officer 

remove a gold cross pin from his uniform. The Court determined the 

City's uniform standards were proper and that the City was unable to 

reasonably accommodate the officer's needs without undue hardship (i.e. 

the department’s need to appear neutral outweighed the officer’s right to 

outwardly express his beliefs): 

Although the First Amendment protects an individual's right, for example, to 

shout, "Fire!" while riding a surfboard on the Pacific swells, it offers no such 

protection to the same speech uttered in a crowded theater. Visibly wearing a 

cross pin - religious speech that receives great protection in civilian life - takes on 

an entirely different cast when viewed in the context of a police uniform. 

Although personal religious conviction - even the honestly held belief that one 

must announce such conviction to others - obviously is a matter of great concern 

to many members of the public, in this case it simply is not a matter of "public 

concern" …. 41 

C. Legitimate Business Interests 

While a police Association might concede that the Chief of Police has 

the statutory authority to manage the workforce, in accordance with KPV 

the Chief still has the obligation to exercise that discretion reasonably. As 

noted Re Scarborough and IAFF, an employer has no authority to impose its 

personal views of appearance or dress upon an employee except in matters 

of health and safety or for a legitimate business interest: 

[P]rima facie, as long as the employee performs the job or the work for which he 

has been hired the employer has no authority to impose his personal views of 

appearance or dress upon the employee. There is no absolute right in an 

employer to create an employee in his own image. There are exceptions to that 

general proposition … [However] I am of the view that an employee should only 

be subjected to the imposition of such standards not on speculation, but on the 

LAC (4th) 316 at 324-25 (available on QL). 

41 

Daniels v City of Arlington (2001), 246 F 3d 500 at 504 (available on WL) (5th Cir CA). 

See also Rodriguez v City of Chicago (1998), 156 F 3d 771 at 779 (7th Cir CA): “The 

importance of public confidence in the neutrality of its protectors is so great that a 

police department or a fire department … should be able to plead “undue hardship” 

and thus escape any duty of accommodation”; Riggs v City of Fort Worth (2002), 229 F 

Supp 2d 572 at 581 (available on WL) (ND Tex) [Riggs]: "Courts have long held that 

the city though its police chief has the right to promote a disciplined, identifiable, and 

impartial police force by maintaining its police uniform as a symbol of neutral 

government authority, free from expressions of personal bent or bias".


basis of legitimate and cogent business reasons which objectively demonstrate 

that an employee's dress or appearance are affecting his work performance or are 

adversely affecting the employer's business. 42 

The decision in Re Scarborough was affirmed and applied in Re Waterloo 

Police Services Board and WRPA, holding that an absolute prohibition on 

officers with beards could not be sustained where no objective rationale 

for the policy had been demonstrated. 43 

A similar ruling was made in Francis (and Brown) v Keane in which the 

United States District Court refused to dismiss a lawsuit against the New 

York State Department of Correctional Services regarding a grooming 

policy that forbade correctional officers from having dreadlocks. The 

Department of Corrections maintained the policy was necessary to 

maintain safety, discipline, and an esprit de corps among uniformed 

corrections officers. However, the court found there was no objective 

evidence or rationale for the policy and concluded that the hairstyle was 

neither inappropriate nor a safety risk: 

These are the kind of unsupported and conclusory statements that courts 

consistently reject as insufficient to overcome a free exercise challenge … Here, it 

is not at all apparent how the plaintiffs' modified dreadlocks implicated the 

concerns that the defendants claim the directive is meant to address — namely, 

safety, discipline and esprit de corps …The defendants have not provided the 

Court with any evidence to support their argument that the directive, as it has 

been applied to the plaintiffs, even advances their interest in safety … Similarly, 

the defendants have failed to provide any evidence that the directive fosters 

discipline or esprit de corps. 44 

42 

Scarborough (Borough) v International Association of Fire Fighters, Local 626 (Cousins 

Grievance) (1972), 24 LAC 78 at 83-84 (available on QL). Also see Re Du Pont Canada 

Inc, Ajax Works and Teamsters’ Union, Local 1166 (1982), 8 LAC (3d) 24 at 29-30 

(available on QL). 

43 

Re Regional Municipality of Waterloo Police Services Board and Waterloo Regional Police 

Association (2000), 85 LAC (4th) 227 at 252 (available on WL Can), aff’d (2000), 135 

OAC 86 (available on WL Can) (Ont Div Ct). See also Ontario Provincial Police, supra 

note 9. See, however, Constable Matthew Jeary and the Waterloo Regional Police Service 

(April 5 2000), 00-05, online: OCPC , in which the Ontario 

Civilian Commission on Police Services upheld a conviction for insubordination 

where the officer refused to comply with an order from his supervisor to trim his 

beard. Also see Fraternal Order of Police Lodge No 12 and Riback v Las Vegas Police 

Department, supra note 24. 

44 

Francis (and Brown) v Keane, 888 F Supp 568 (SDNY 1995) at 575-76. Also see Booth v 

State of Maryland (2003), 327 F 3d 37 (4th Cir CA), rev’ing in part 207 F Supp. 394 (D


Similarly, in Zehrs Markets Inc v UFCW, an Ontario Arbitration Board 

canvassed the jurisprudence concerning the application of the 

reasonableness criteria from KVP Co Ltd to company rules concerning 

dress and appearance and adopted the comments of Arbitrator Shime as 

the best summary of those criteria: 

First all the cases are in agreement that a company may promulgate rules 

concerning the dress and appearance of employees provided that the rules are 

reasonable. Secondly arbitrators recognize that there is an ingredient of personal 

freedom involved in this type of issue and since the rules concerning hair are 

such that they also affect the employees off duty hours arbitrators have been 

careful to balance the employees personal rights against the legitimate interests of 

the employer. Although the personal freedom of an employee is a concern it is 

not absolute. Thirdly the legitimate concerns of the employer involve both image 

and actual loss of business and those two concepts are obviously interrelated. 

Permeating all the cases is the suggestion that an employer must demonstrate 

that the grievor's appearance has resulted in a threat to its image and consequent 

financial loss or at the very least that on the balance of probabilities the 

employee's appearance threatens its image and therefore threatens a loss of 

business to the company.... Fourthly many arbitrators have alluded to changing 

standards or marked shift in public attitudes or to evolving hair styles and I too 

am of the opinion based on the references in the cases and my own personal 

observations that it is appropriate for me to take official notice that in the 

community there is an evolving standard of dress and hair styles and that the 

community has grown more tolerant in its attitudes. Even since the earlier cases 

where these issues arose there have been not only further changes in dress and 

hair styles but there has been an increasing community tolerance for the variety 

of life styles that are manifest in personal dress and appearance. Fifthly the cases 

have distinguished industries where the employees come into contact with the 

public and those where there is no public contact and apart from issues of health 

and safety tend to be more tolerant in those situations where the employee does 

not have any contact or has minimal contact with the members of the public. 

Sixthly there seems to be a further distinction between hair styles which are neat 

and well trimmed and those hair styles which are unkept or create the impression 

of being dirty or unsanitary. 45 

Md), where a uniformed Rastafarian correctional officer wore his hair in short braided 

dreadlocks. This hairstyle was in violation of the dress code. While the District Court 

upheld the grooming policy as facially neutral and rationally related to the Division’s 

goals of promoting safety, uniformity, discipline, and esprit de corps among the 

correctional staff at the facility, the Appellate Court nevertheless found that it was 

applied in an unconstitutional manner as it did not grant the officer an exemption on 

religious grounds. 

45 

Re Zehrs Markets Inc and UFCW, Local 175 & 633 (2003), 116 LAC (4th) 216 at 245


As noted by the Arbitration Board the nature of the balancing will 

vary depending on the nature of the employer's business; the duties of the 

affected employees; the degree of contact of the employee with the public; 

the degree of the risk and severity of the danger presented by the 

employee's appearance; and the nature of the interference with the 

employee's personal appearance caused by the policy. In all cases, 

arbitrators required employers to demonstrate at least the likely prospect 

of damage to one of its legitimate business interests. However, the mere 

allegation of possible damage to their image was not sufficient and there 

had to be proof of significant complaints or consumer surveys to indicate 

the likely prospect the employer would lose business if it was not able to 

maintain the policy. 46 

More recently, in United Food and Commercial Workers v Westfair Foods 

Ltd, the Alberta Court of Appeal upheld an arbitrator’s decision that a 

policy prohibiting all visible facial piercings and tattoos was unreasonable, 

substituting it with a revised policy permitting discreet piercings where the 

parties could not agree on an acceptable policy. 47 

In part the arbitrator found that Westfair Foods had failed to establish 

that their policy was reasonable. While Westfair Foods claimed all visible 

facial piercings (and tattoos) were detrimental to their business image and 

competitive advantage, other food chains allowed discrete facial piercings 

(even food chains owned by the same parent company). Furthermore 

management was unable to provide any objective evidence that consumers 

responded negatively to facial jewelry. However, without any evidence at 

all on the impact of facial jewelry on consumer behaviour, the arbitrator 

was reluctant to go any further than implementing a policy that allowed 

for discrete facial piercings (i.e. nose studs). 48 

As such, even though a police department policy might be clear and 

unambiguous, issues of adverse or detrimental reliance may arise in 

(available on WL Can), citing Re Dominion Stores Ltd and USWA (1976), 11 LAC (2d) 

401 at 403-404 (available on QL) (Ont Arb Bd) [Dominion Stores]. 

46 


47 

United Food and Commercial Workers Union, Local 401 v Westfair Foods Ltd, 2008 ABCA 

335, 440 AR 249. While the policy also prohibited the display of tattoos, the grievers 

in this case only had facial piercings. 

48 

Ibid. Also see Re Thrifty (Canada) Ltd, supra note 12, in which an arbitrator found that 

Thrifty’s policy prohibiting facial piercings did not respond to any normal objectively 

verifiable exigencies of reputation and image and, therefore, were not reasonable.


implementing such a policy until it can be arbitrated where years of silence 

on behalf of the department regarding the display of tattoos has led union 

members to obtain subsequently prohibited tattoos on the basis they could 

do so without penalty. 49 Such may be the case where the Winnipeg Police 

considered such a policy, but then decided against it. 

D. Objectively Verifiable Exigencies 

Nevertheless some tattoos can express a foreign language, shape, 

number or other symbol that may be inflammatory, offensive or have 

criminal significance which is unknown to management. For example in 

Inturri v City of Hartford, five officers with spider web tattoos on their arms 

appealed the Chief’s order that they cover their tattoos, contending that 

their equal protection rights were violated and that the regulations were 

vague and overbroad. While the officers claimed the tattoos were merely 

decorative and were not intended to express any meaning whatsoever, 

after consulting various sources, the Chief ordered the tattoos covered 

while the officers were on duty because the tattoo was well known as a 

symbol of a white supremacist group. 

While the Chief never suggested the officers’ were racist or that they 

displayed the tattoos as part of any racist or anti-Semitic philosophy or 

statement, his concern was that such tattoos may be interpreted as racist 

and could therefore result in an explosive situation, endangering both the 

officers and the community if not covered. In reaching his conclusion the 

Chief considered the following: 

1 A visual database of extremist symbols, logos and tattoos 

maintained by the Anti-Defamation League (ADL), which 

included the spider web design and an explanation that it was 

favored by "racist convicts" (although the ADL did note that some 

individuals obtained the tattoo for the look, being unaware of its 

racist connotations); 

49 

Estoppel by silence would generally not apply. While silence or inaction may 

constitute a representation, for the purpose of an estoppel, the representation must be 

a legal (not a mere moral or social) duty. As the Supreme Court stated in Ryan v 

Moore, 2005 SCC 38 at para 76, [2005] 2 SCR 53: “estoppel by representation cannot 

arise from silence unless a party is under a duty to speak. Silence or inaction will be 

considered a representation if a legal duty is owed by the representor to the 

representee to make a disclosure…”


2 The racial composition of the City of Hartford (which was almost 

seventy percent non-Caucasian); 

3 A history of troubled race relations between the population of 

Hartford and members of the police department; 

4 The racial composition of the police department; 

5 A consent decree entered into by the department in Cintron v 

Vaughan to prevent racially discriminatory practices after 

allegations of systemic racism were made about the police towards 

racial minority groups; 

6 Article XII of the department's Code of Conduct, which addresses 

discriminatory acts by police officers; and 

7 Information from the FBI on racist groups. 50 

The court affirmed the Chief’s decision, finding that the order was 

rationally related to the department's legitimate interest in fostering 

harmonious race relations both within the department and within the 

community. The court also rejected the claim that the regulation was 

vague or overbroad either facially or as applied. The officers had sufficient 

notice to cover their tattoos and that the burden of covering them with a 

sweatband-type material was minimal. 

As public employees, the officers were subject to special restrictions on 

free expression as were reasonably necessary to promote effective 

government, and the police department had a reasonable interest in not 

offending or appearing unprofessional. The order was not 

unconstitutionally vague because it specifically told the officers that their 

spider web tattoos must be covered. Similarly, the order did not violate the 

officers' rights to equal protection. As public employees, the officers had 

no fundamental liberty interest in their personal appearance, and the 

order requiring covering the spider web tattoos, which could reasonably 

have been perceived as a racist symbol, was rational. 51 

50 

Inturri v City of Hartford, 165 Fed Appx 66, 2006 WL 231671 (2d Cir), aff’ing 365 F. 

Supp. 2d 240 (D Conn. 2005) [Inturri]. Also see Rathert v Village of Poetone (1990), 903 

F 2d 510 (7th Cir CA) where the make-up of a small conservative community was a 

significant factor in upholding a policy banning earrings worn by policemen. 

However, in terms of human rights, such arguments are generally rejected in Canada 

where they are based on perception and there is no evidence of detrimental impact. 

C.f. Trinity Western University v British Columbia College of Teachers, 2001 SCC 31, 

[2001] 1 SCR 772. 

51 

Inturri, supra note 50.


Based on the objective evidence presented by the City of Hartford, it 

could not be said that the policy was unreasonable. Conversely, where no 

evidence is presented, simply taking the position that tattoos in general 

can convey an unacceptable meaning could be seen as vague, overly broad 

and therefore unreasonable. For example, in Stephenson v Davenport School 

District 52 the 8 th Circuit Court of Appeals found that a school district’s 

policy against tattoos was vague and overly broad. 

In that case, the school district introduced a regulation to suppress 

gang activity by banning all gang related activities such as display of 

'colors,' symbols, signals, signs, etc., on school grounds. The policy further 

stated that students in violation of the policy would be suspended from 

school and/or recommended for expulsion. 

Prior to the passage of the policy Brianna Stephenson, an eighth grade 

student in the Davenport Community School District, tattooed a small 

cross between her thumb and index finger. The tattoo was a form of ‘self 

expression’ and she did not consider it a religious symbol. She also did not 

intend the tattoo to communicate gang affiliation. By all accounts, 

Stephenson was a conscientious and diligent student with no record of 

disciplinary problems. However, a school-police liaison officer determined 

that it was a gang symbol and the school ordered Stephenson to have it 

altered or removed otherwise they would initiate disciplinary procedures, 

including expulsion from school. Stephenson chose not to alter the tattoo 

because she did not want a larger tattoo and feared school administrators 

or police would also classify it as a gang symbol anyways. As a result she 

had it removed. 

While the court did not find that the tattoo was protected by her right 

to freedom of expression (by her own admission it had no meaning), it 

found the policy to be vague and overly broad. Sadly, noted the court: 

gang activity is not relegated to signs and symbols otherwise indecipherable to the 

uninitiated. In fact, gang symbols include common, seemingly benign jewelry, 

words and clothing. 

… 

As this litigation demonstrates, common religious symbols may be considered 

gang symbols under the District regulation. The meaning of Stephenson's tattoo, 

a cross, is contested by the parties as Stephenson considers it simply a form of 

"self-expression" while appellees believe it is a gang symbol. A significant portion 

52 

Stephenson v Davenport School District (1997), 110 F 3d 1303 (available on WL) (8th Cir 

CA).


of the world's population, however, views it as a representation of their Christian 

religious faith. Indeed, the list of "prohibited" materials under the regulation 

includes other potential religious symbols [for example] … the six-pointed star is a 

symbol of Judaism as well as of the gangs affiliated with the Folk Nation. The 

District regulation, then, sweeps within its parameters constitutionally protected 

speech. 53 

To treat someone differently than others based on assumptions about 

the person's behaviour or some characteristic associated with the group to 

which the person belongs (i.e. those with tattoos) is a common form of 

discrimination. For example in Hub Folding Box Co, Inc v Massachusetts 

Commission Against Discrimination, 54 a female employee was ordered to 

cover a tattoo of a heart on her forearm because, in her employer’s eyes, a 

woman with a tattoo was putting her sexual immorality on display. The 

tattoo was not visible when the employee was hired, but became visible 

when she began to wear short-sleeved shirts in the summer months. Her 

supervisor, noticing the tattoo, demanded she cover it up or face 

discharge. The employee refused to cover her tattoo and was fired. As a 

result the Court found that the employee had suffered because of an 

outdated and illegitimate stereotypical gender view of her tattoo. 

In affirming its decision, the state Court of Appeals followed a similar 

line of reasoning as in Riggs v City of Fort Worth that employers either 

provide equal workplace treatment or offer a valid, nondiscriminatory 

business reason for their policies. In that case a police officer with 

extensive tattoos on his arms and legs was ordered to wear long pants and 

a long shirt to cover his tattoos because his appearance was deemed to be 

unprofessional. After he suffered from heat exhaustion from the long 

pants and shirt, he was moved to a desk job and then to another unit. He 

subsequently filed a grievance that he was singled out in part because of 

his expressive conduct (i.e. his tattoos). 55 

Although the court did not believe his tattoos were a form of 

expression protected by the Constitution, assuming it was they held that 

53 

Ibid at 1308. 

54 

Hub Folding Box Co, Inc v Massachusetts Commission Against Discrimination (2001), 52 

Mass App Ct 1104, 2001 WL 789248. 

55 

Riggs, supra note 41 at 575. The court took notice that his tattoos included a Celtic 

tribal band, a Celtic design that included his wife’s name, a mermaid, a family crest, 

the cartoon character Jessica Rabbit, and a two foot by two foot full color rendering 

on his back of St. Michael spearing Satan.


the officer was still not entitled to any protection as the Las Vegas Police 

Department had a legitimate interest in promoting the efficiency of its 

public service through its employees and that a police officer’s uniform 

was not a forum for fostering public discourse or expressing ones personal 

beliefs: 

Courts have long held that the city through its police chief has the right to 

promote a disciplined, identifiable, and impartial police force by maintaining its 

police uniform as a symbol of neutral government authority, free from 

expressions of personal bent or bias. 56 

Even where an argument could be made that a tattoo was expressive, a 

hospital’s cover-up order of an employee’s “HIV positive” tattoo was 

upheld where the hospital’s interest in facilitating patient recovery 

outweighed the employee’s expressive rights: 

Even with the greater protections given to speech on a matter of public concern, 

[the hospital’s] interests in facilitating their patients' recovery outweigh Baldetta's 

interest in displaying the tattoo. Several doctors questioned by [the hospital] 

concluded that display of the tattoo would cause stress in severely injured or ill 

patients which could hinder their recovery. Given the precarious state of their 

patients' health, [the hospital] have made "a substantial showing that the speech 

is, in fact, likely to be disruptive” [and the] district court did not err in granting 

summary judgment to [the hospital] on Baldetta's First Amendment claim 

relating to his tattoo. 57 

Similarly, in Swartzentruber v Gunite Corp, an employee was not 

successful in convincing the court that his membership in the “Church of 

the American Knights of the Ku Klux Klan” entitled him to display one of 

the church’s seven sacred symbols tattooed on his arm (a robed figure 

standing by a “fiery cross”). The Court held that whether or not the KKK 

and the display of its “sacred symbol” was a bona fide religious 

requirement, holding that even if it was, allowing him to display the tattoo 

could contribute to a hostile work environment and therefore would 

create an undue hardship on the employer if it were allowed. 

Summary judgment still would be proper even if Mr. Swartzentruber had made 

out a prima facie case, because Gunite has shown that it reasonably 

accommodated his asserted religious observance or practice. As “some would 

certainly view a burning cross as ‘a precursor to physical violence and abuse 

against African-Americans and … an unmistakable symbol of hatred and violence 

56 

Ibid at 581. 

57 

Baldetta, supra note 29.


based on virulent notions of racial supremacy,’” the court agrees with Gunite 

that any greater accommodation would cause it an undue hardship. Gunite 

demanded that Mr. Swartzentruber cover his tattoo because it violated Gunite's 

racial harassment policy and offended other employees. Gunite accommodated 

his tattoo depiction of his religious belief that many would view as a racist and 

violent symbol by allowing him to work with the tattoo covered; [the Civil Rights 

Act] doesn't require more. 58 

IV. CONCLUSION 

Tattoos are becoming mainstream in today’s society and many 

professional employers, including the police, are looking at restricting 

their public display as part of their workplace dress codes. While 

challenges could be made to these “no-show” policies under human rights 

legislation, adverse or detrimental reliance may apply to officers who had 

obtained a subsequently prohibited tattoo on the basis it was allowed by 

years of silence. Permitting the public display of tattoos and knowing it is a 

facet of the current generation, yet implementing such policies as a knee 

jerk reaction to a singular event or in anticipation of a perceived event, are 

likely to fail where no research has been done on public attitudes and the 

impacts of tattoos on the profession. 

However, where a tattoo does have a potential negative image that is 

incompatible with the employer’s legitimate policing interests, requiring 

an officer to cover it up would be a reasonable requirement if not bona fide 

occupational requirement of any dress code. Furthermore, like the City of 

Winnipeg Police Service By-law and Inturri v City of Hartford, Chiefs of 

Police are responsible for the control, governance, well-being and 

efficiency of their police service and are well paid to make difficult 

decisions regarding what is incompatible with legitimate policing interests 

– albeit founded on objectively verifiable business principles and 

community standards. 

Policing is a highly regulated field. Should a tattoo policy be 

implemented by or pursuant to the Manitoba Police Services Act, police 

officers should be mindful of the disciplinary decision in Trembley v Metro 

Toronto Police, where the Ontario Court of Appeal held that: 

The practice of a [policing] is a privilege. The law grants to certain groups a 

monopoly to carry on certain well-defined activities and imposes upon the 

58 

Swartzentruber v Gunite Corp (2000), 99 F Supp 2d 976 (available on WL) (ND Ind).


members of those groups an obligation to prevent abuse and to ensure that the 

monopoly will be exercised for the public good. It is normal that those who enjoy 

these privileges should be subjected to a more rigorous discipline than that which 

applies to ordinary citizens. This discipline is peculiar to them and is not part of 

penal law. 

… 

[B]y joining the Force, [the member] has agreed to enter into a body of special 

relations, to accept certain duties and responsibilities, to submit to certain 

restrictions upon his freedom of action and conduct and to certain coercive and 

punitive measures prescribed for enforcing fulfillment of what he has 

undertaken. These terms are essential elements of a status voluntarily entered 

into which affect what, by the general law, are civil rights, that is, action and 

behavior which is not forbidden him as a citizen. 59 

As such, because of the nature of policing as a profession, officers are 

expected to submit to certain coercive measures and other restrictions 

upon their freedom. With that said, an absolute prohibition on the 

display of tattoos goes beyond what is required to promote the image of a 

disciplined, identifiable and impartial police force while maintaining the 

department’s uniform as a symbol of neutral government authority, free 

from expressions of personal religion, bent or bias. As noted previously by 

the Ontario Arbitration Board, there is “an increasing community 

tolerance for the variety of life styles that are manifest in personal dress 

and appearance.” 60 Even Barbie now sports neck and shoulder tattoos. 61 

As the arbitrator in Inturri v City of Hartford noted, the policy did not 

prohibit all tattoos, only those deemed to be offensive, immoral, or 

presenting an unprofessional appearance. Such a policy was consistent 

with that department’s Code of Conduct and similarly would be 

consistent with any collective agreement or harassment policy regarding 

the “display” of any “disrespectful” printed material. Even then the officers 

in that case were required to cover them up but not to remove them, thus 

minimizing any restriction on their personal freedom of thought, opinion 

and belief. 

59 

Trembley v Metropolitan Toronto Police Force (1986), 55 OR (2d) 570, 29 DLR (4th) 557 

(CA), aff’d (1987) 2 SCR 577, 45 DLR (4th) 318. 

60 

Dominion Stores, supra note 45 at 404. 

61 

Elmira Bayrasli, “The Ink on Tattoo Barbie, So What?” Forbes Magazine (October 24, 

2011), online: .


Social Incrimination: 

How North American Courts are 

Embracing Social Network Evidence in 

Criminal and Civil Trials 

D A N G R I C E A N D D R . B R Y A N 

S C H W A R T Z 


A 

fter the 2011 Stanley Cup finals in Vancouver, infuriated citizens 

turned en masse to Facebook to search for culprits responsible for 

vandalizing cars and looting downtown stores. After a bank 

robbery in Texas, police arrested two bank tellers, the boyfriend of one 

and the brother of another, after being informed that one of the four 

posted, “IM RICH” on Facebook. 1 In New Brunswick, a defendant in a 

person injury lawsuit persuaded the judge to force the plaintiff to archive 

her Facebook account after photos of her zip-lining appeared to 

demonstrate that her injuries were not as serious as she claimed. 2 

Interesting stories like this surface almost every day. Incriminating 

statements made on a social network may end up opening the door to 

more substantial investigations. Sometimes investigators discover the 

evidence, although often it is an individual’s own online “friends”. This is 

 

B.A. (UBC), J.D. (Manitoba). Winnipeg. Articling student-at-law at Baker Newby LLP 

in Chilliwack. The views expressed herein are his own and do not necessarily reflect 

the views or opinions of Baker Newby LLP. 

 

LL.B. (Queen‘s), LL.M. (Yale), J.S.D. (Yale). Asper Professor of International Business 

and Trade Law, University of Manitoba. 

1 

“Facebook bragging nabs 4 in robbery” The Associated Press (22 April 2011) online: 

WLFI.com . 

2 

Sparks v Dubé, 2011 NBQB 40, 374 NBR (2d) 26 [Sparks].


an era where mobile phones equipped with cameras are common and 

internet usage has become widespread, presenting investigators and 

litigators with potential treasure troves of information. 3 A modern 

obsession with sharing personal thoughts and photographs with online 

acquaintances has led to incriminating statements and embarrassing 

photographs proving probative or undermining the credibility of witnesses 

and litigants in a wide range of cases. As a result, courts across North 

America are revising and reinterpreting their evidentiary rules to handle 

evidence gathered from social networking websites. 

This paper takes a comprehensive look at a wide variety of evidentiary 

issues, procedural rules and examples of social networking evidence used 

in criminal and civil cases in both Canada and the United States. Part II 

briefly introduces the major social networks and examines their use by 

courts. Part III addresses some of the general statutes which deal with 

investigators’ and courts’ access to social networking evidence. Part IV 

examines the acquisition and use of social networking evidence in the 

criminal context, including the importance and difficulties of 

authenticating evidence and the various ways in which courts have 

reviewed evidence to prevent prejudice. Part V examines the implications 

of social networking evidence in civil cases, particularly how litigants use 

court processes to discover information about their adversaries. This can 

range from uncovering unknown online defamers, to forcing the 

revelation of pictures or posts from a private section of a social network 

account. Lastly, we look at how civil courts deal with balancing privacy 

concerns with the broader obligation to disclose relevant material. 

II. SOCIAL NETWORKS: AN OVERVIEW 

Social networks are a part of daily life for a large number of Canadians 

and others across the globe. Websites such as Facebook, MySpace, 

YouTube, Twitter and LinkedIn let users share statuses, personal pictures, 

and create personal profiles for themselves, their music bands, or social 

groups. There are estimated to be over 17 million user accounts in Canada 

3 

Charles Foster, “Social Networks are a Treasure Trove of Information” Claims Canada 

(October 2008), online:.

Social Incrimination 223 

on Facebook alone. 4 These websites facilitate individuals sharing aspects of 

their lives with friends, acquaintances, or the public at large, depending on 

the privacy settings of the account. Photos, videos and personal statuses 

can be added to the website from home computers or from smart phones. 

Primarily physically located in California, social networks utilize large 

data storage facilities and rely on proprietary systems to control the upload 

of files and privacy settings used. The scale and complexity of these 

systems 5 means that litigants or investigators must rely upon the 

companies’ retrieval processes, and have very little ability to retrieve data 

deleted from the server. Unlike a personal computer where a single drive 

can be forensically scanned for deleted emails or files, lawyers seeking to 

use evidence from social networks must often pre-emptively capture the 

files themselves, obtain the cooperation of the opposing party, or (in 

criminal investigations) request that the hosting company preserve a user’s 

account. 

Each social networking website has its own unique format and appeals 

to its own niche. In order to appreciate the potential uses of social 

networking evidence, it is important to understand the various companies. 

Several of the most prominent are discussed below. 

A. MySpace 

MySpace, one of the earliest popular social networks, originally gained 

in popularity by allowing anonymous profiles and by catering to music 

fans with its ability to upload music and to customize the look of a profile. 

From its founding in 2003 up until early 2009, it was the predominant 

social network in North America. Cases involving MySpace often involve 

obtaining evidence against sexual predators, proving gang affiliation for 

those who relied on its partial anonymity to brag about their exploits, and 

more recently, providing evidence in civil cases. The main legal issue that 

arises is authentication, because users may create accounts under any 

pseudonym. Generally, profiles were public and available to anyone so, 

4 

Facebook provides estimates for its advertisers: see online: Facebook, 

(Login required). 

5 

The number of users grows every month. One source estimated that by the middle of 

2011, the company had over 750 million monthly user. Jason Kinkaid, “Facebook 

Now Has 750 Million Users” (23 June 2011) online: 

.


unlike other social networks’ evidence, most jurisprudence involved 

proving authorship of potentially damaging posts rather than trying to 

uncover the posts themselves. MySpace is referenced more in American 

case law than in Canadian case law. 

B. Facebook 

Launched in 2004, Facebook allows the creation of user profiles and 

discourages anonymous posts. Originally confined to college campuses, it 

has surpassed MySpace in popularity. 6 The initial terms of service (which 

required users to have an academic email account, use a real name and 

have an actual photograph) have been relaxed to allow anyone with an 

email address to create a profile. However, Facebook still reserves the right 

to disallow fake names. Facebook’s most popular feature has been users’ 

“walls”, more recently changed to “timelines”, where users are encouraged 

to share personal updates, videos and photographs. As users need to 

approve their “friends” and can control who accesses their profiles, there is 

a sense of privacy. Perhaps as a result there is a greater predisposition for 

users to reveal things they might not otherwise share publicly. 

Consequently, evidence from Facebook is becoming increasingly 

important in both criminal and civil trials. In the criminal context, users 

have been convicted of uttering threats, uploading incriminating pictures 

linking them to crime scenes, or posting comments undermining their 

credibility. In family courts, evidence retrieved from Facebook is being 

used to challenge the parenting ability of partners in custody disputes. In 

civil trials and injury lawsuits, defendants are increasingly using discovery 

motions against plaintiffs to uncover Facebook photographs that may 

undermine the extent of plaintiff claims. 

C. Nexopia 

The largest social network run by a Canadian company is Nexopia, 

based in Alberta, and its user base is mainly teenagers. The primary 

references in Canadian courts to this particular social network site refer to 

sexual predators targeting its younger user base and generally, evidence is 

6 

Erich Schonfeld, “Facebook Finally Catches Up To MySpace In The US”. (15 June 

2011) online: .


obtained as part of a larger criminal investigation. 7 Because Nexopia is 

Canadian-based, American laws that limit voluntarily disclosure by hosts 

of user information to law enforcement do not apply. 8 As a result, when 

users sign up they agree to terms that allow the company to screen for 

potentially illegal posts and to disclose them if necessary. 

D. Twitter 

Twitter is a website which allows individuals to post brief “tweets” and 

share them with a broad public audience rather than with a subset of 

online friends. It appears infrequently in Canadian case law and has not 

contributed significant evidence in either Canada or the US. Although a 

very popular site, it does not provide native picture-hosting capabilities 

and restricts posts to 140 characters in length, providing a limited 

opportunity to express oneself or share potentially incriminating evidence. 

Legal discussions have arisen about the unlawful sharing of Canadian 

election results, 9 and controversy arose in the US from attempts to 

uncover the identities of Wikileaks supporters who may have been 

responsible for obtaining stolen government documents. 10 While little case 

law exists in regards to defamation, Twitter’s counsel recently told a forum 

that this area is very common for litigation and its general policy is to 

notify users before handing over their information. 11 For the most part, 

most Twitter accounts are completely public, so any discovery would 

involve attempting to identify the account owner and the author of posts 

rather than uncovering information. 

7 

See R v Innes, 2007 ABPC 237, 423 AR 14. 

8 

US, The Stored Wire and Electronic Communications and Transactional Records Access Act, 

18 USC § 2701-§ 2712 (2012) [SCA] generally limits ISPs from disclosing information 

without a warrant and is discussed later. However, exceptions are made in the US to 

case involving harm to children. 

9 

Canadian Broadcasting Corp v Canada (Attorney General), 2011 ONSC 2281, 105 OR 

(3d) 679. 

10 

In re 2703(d), Order; 787 F Supp (2d) 430 (ED Va 2011) [Re 2703(d)]. 

11 

Alex Macgillivray, “In-House Legal Perspectives” (47 USC § 230: a 15 Year 

Retrospective, delivered at Santa Clara Law, 4 March 2011) (podcast) online: 

http://itunes.apple.com/itunes-u/id432913282>.


E. LinkedIn 

LinkedIn caters to professionals who wish to display their work history 

and other work-related and professional information. As a businessoriented 

social network, LinkedIn is rarely referenced in Canadian 

jurisprudence. Some courts have even purposely denied discovery of 

LinkedIn while granting discovery of other networks. 12 In the US, 

LinkedIn postings have played a role in a small number of commercial 

cases. Evidentiary uses have included attempts to show that a party 

breached non-competition agreements by contacting former clients, 13 to 

establish the geographic location of witnesses with a view to establishing 

the proper forum for litigation, 14 to demonstrate work history, 15 or that a 

party engaged in misrepresentation. 16 

F. YouTube 

YouTube, now owned by Google, is a popular website for sharing 

videos. It is one of the primary Internet video-hosting platforms and the 

source of many cases involving video copyright infringement. For lawyers 

concerned with copyright infringement, a whole series of case law in the 

US involves application of the US Digital Millennium Copyright Act to 

Youtube. 17 Additionally, YouTube has been brought up in the courts 

regarding evidence of threats, 18 association with gang members in rap 

videos, 19 human rights violations involving statements about sexual 

orientation, 20 and even some personal injury videos. 21 While YouTube does 

allow private videos, most videos are public and courts have not generally 

had to deal with civil discovery motions to uncover content. However, in 

instances where the author of the video is not readily apparent, 

investigators may be required to contact YouTube for evidence regarding 

12 

Sparks, supra note 2. 

13 

Graziano v Nesco Service Co, 2011 WL 1219259 (ND Ohio). 

14 

Paltalk Holdings, Inc. v Sony Computer Entertainment America Inc, 2010 WL 3517196 

(ED Tex). 

15 

Blayde v Harrah's Entertainment, Inc, 2010 WL 5387486 (WD Tenn). 

16 

Nationwide Payment Solutions, LLC v Plunkett, 2011 WL 446077 (D Me). 

17 

Digital Millennium Copyright Act, 17 USC § 1201-1205 (1998). 

18 

R v B(R), 2011 ONCJ 118 (available on WL Can) [R v B(R)]. 

19 

R v Sinclair, 2010 ONSC 7254 (available on WL Can) [Sinclair]. 

20 

Pardy v Earle, 2011 BCHRT 101 (available on WL Can). 

21 

Tyrell v Bruce, 2010 ONSC 6680, 92 CCLI (4th) 248 [Tyrell].


authorship. While YouTube is the most common video sharing site, other 

emerging video sharing sites, such as Ustream and BlogTV, that are 

devoted to real-time streaming video, may eventually also find their way 

into court. 

III. EVIDENTIARY LIMITATIONS 

Lawyers and courts wanting to use social networking evidence must 

consider issues involving the rules of evidence. Many precedents and 

statutes that courts contemplate in social networking cases were 

established in the context of a world based on paper and ink documents, 

rather than data created, stored and presented electronically. The 

challenge for courts is to remain faithful to established principles, while 

interpreting and applying them in a manner that is sensitive to the 

practical realities of new technologies. 

A. General Evidentiary Rules of Procedure 

Generally, both Canadian and American evidentiary laws require the 

authentication of evidence; this applies to both criminal and civil trials. 

US rules on admissibility tend not to differentiate between electronic 

evidence and traditional evidence, often admitting electronic evidence as 

“writing”. For instance a California court, in dealing with a photograph 

from a social networking site, utilized laws surrounding writing. 22 In 

addition to American federal laws that limit how social networks can 

release private content, a variety of evidentiary rules at both the federal 

and state level will apply, depending on the nature of the proceeding. 

In Canada, the federal rules of evidence that regulate criminal trials 

recognize electronic evidence as part of the recommendation of the 

Uniform Law Conference of Canada. 23 The Personal Information Protection and 

Electronic Documents Act 24 modernized the Canada Evidence Act. 25 It 

22 

People v Beckley, 185 Cal App 4th 509 at 2 (Cal App 2 Dist 2010) [Beckley]. 

23 

See Uniform Electronic Evidence Act (Uniform Law Conference of Canada, 1997), 

online: . 

24 

SC 2000, c 5, s 56 [PIPEDA]. 

25 

Canada Evidence Act, RSC 1985, c C-5 [Canada Evidence Act].


specifically addresses electronic documents, including general guidelines 

for their admission: 

31.1 Any person seeking to admit an electronic document as evidence has the 

burden of proving its authenticity by evidence capable of supporting a finding 

that the electronic document is that which it is purported to be. 

31.5 For the purpose of determining under any rule of law whether an electronic 

document is admissible, evidence may be presented in respect of any standard, 

procedure, usage or practice concerning the manner in which electronic 

documents are to be recorded or stored, having regard to the type of business, 

enterprise or endeavour that used, recorded or stored the electronic document 

and the nature and purpose of the electronic document. 26 

Provincial evidentiary rules, used in civil trials across Canada, have also 

adopted the Uniform Law Conference recommendations and have similar 

recognition for the admissibility of electronic documents. 27 

B. Jurisdiction 

Unlike traditional evidence, social networking evidence often exists 

only as a digital record in a data center located in a jurisdiction far 

removed from the scene of the alleged crime or tort. In many cases, users 

directly upload photographs and statements to their social networking 

accounts, and thus the evidence may only be available through one of 

these websites. Most social networking companies are located in the US. 

The major ones such as Facebook, MySpace and YouTube are 

headquartered in California and store information there. Any attempt by 

a Canadian litigant to compel the release of information from a social 

network requires the application of American state and federal laws. 

While most social networks are located in the US, American courts 

will generally limit their involvement in Canadian court cases to essential 

elements, such as domesticating production orders. While servers hosting 

the content may be located in California, it typically does not create a 

substantial enough connection to that jurisdiction to give a local court any 

authority to hear the matter. In other cases, a court might hold that while 

it does have the authority to hear a matter, it should refrain from 

exercising jurisdiction but rather leave the matter to be resolved in a more 

26 

PIPEDA, supra note 24. (PIPEDA also allowed companies to release private 

information without consent in accordance with a valid search warrant or subpoena 

under s 7(3)(c)). 

27 

See e.g. Manitoba Evidence Act, RSM 1987, c E150, CCSM c E150, 51.1-51.8.


convenient forum. In Elmo Shropshire v Canning, a California court rejected 

an attempt to sue a Canadian man in their courts for copyright 

infringement after posting a video with an unlicensed song on YouTube, 

noting the proper venue would be a Canadian court. 28 Courts will also 

reject claims that there is a sufficient connection simply because a page was 

viewable in the jurisdiction. A Wisconsin court refused to consider a 

trademark infringement case involving a California company who used the 

same trademark, finding that without active solicitation in a region there 

was insufficient jurisdiction. 29 However, where social networking 

behaviour is purposely directed at an individual or company in another 

jurisdiction, they may be liable to suit in that location. A Florida court 

found that an out-of-state company that purposively directed defamation 

at a Florida company on a website hosted elsewhere had established 

“minimum contact” and thus the court had sufficient jurisdiction. 30 

C. Individual Rights 

Various individual rights assigned by statute, the common law, or by 

constitutional documents or conventions can also impact the evidentiary 

process as it relates to social network evidence. 

1. The Stored Communications Act 

The Stored Communications Act (SCA) 31 is pervasively important in 

obtaining evidence from social network companies based in the US. 

Enacted by the US Congress in 1986 prior to the popularization of the 

Internet, the SCA was initially designed to regulate telecommunications 

carriers and protect their subscribers from unauthorized access to private 

communications. Essentially, it prevents companies that offer “electronic 

communication services” or “remote computing services” from voluntarily 

handing over personal communications and content, including 

photographs, statements, chat messages, or profiles to third parties 

without the subscriber’s consent. A limited number of exceptions are 

made under section 2702, in which law enforcement can obtain the 

28 

Elmo Shropshire v Canning, 2010 Copr L Dec P 30024, (ND Cal). 

29 

Trek Bicycle Corp v Trek Winery, LLC, 2010 WL 744252 (WD Wis). 

30 

Spectra Chrome, LLC v Happy Jack's Reflections in Chrome, Inc, 2011 WL 1337508 (MD 

Fla). 

31 

SCA, supra note 8, §2701-2712.


contents of transmissions in an emergency involving danger of death or 

serious physical injury, or with a valid search warrant issued based on 

reasonable grounds. 32 Exceptions are made to non-content based requests 

such as subscriber information, which may be voluntarily released. 33 

In Crispin v Christian Audiger, California court confirmed that the SCA 

applies to all pictures, posts, messages and communications on Facebook 

and other social networks when privacy settings are available. 34 The court 

quashed a subpoena duces tecum issued by the defendant to Facebook and 

MySpace to hand over private information or messages from the plaintiff’s 

account. This decision also means that an accused in a criminal trial will 

also have no access to obtain private social networking material from 

potential witnesses, as the exceptions listed in the SCA are only available 

to government authorities. 

The only information that a social network may hand over to a nongovernmental 

authority without consent is basic subscriber details. This 

includes, for example, what email an account was registered under, when a 

user started their account, and what internet protocol (IP) address was 

used to create an account. 35 Basic subscriber information may be released 

by a social network to a third party with a valid subpoena domesticated 

wherever the social network is located and issued to the company’s 

registered agents. While the SCA does not affect publicly posted content, 

which litigators or investigators can capture on their own, it means that 

any private content required for a civil trial will have to be produced by 

the party who has access to it. 

2. The Canadian Charter of Rights and Freedoms 36 

As a practical matter in social networking cases, there will rarely be 

legal significance in applying Canadian standards, including the Charter, to 

gathering evidence in the US. The Charter does not ordinarily apply to law 

32 

Ibid § 2702. 

33 

Ibid § 2701. 

34 

Crispin v Christian Audigier, Inc, 717 F Supp (2d) 965 (CD Cal 2010). 

35 

An IP address is a 12 digit identifying number that is assigned by an internet service 

provider (ISP) such as a telephone or cable company to a computer when it accesses 

the internet and can be traced back to find the physical location where a computer 

accessed the internet. 


Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, 

being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].


enforcement activities undertaken abroad by foreign officials, including 

investigations conducted by Canadian officials while in other 

jurisdictions. 37 The admissibility of evidence in Canadian proceedings can 

take into account all the circumstances under which it was originally 

gathered abroad, and so conscripted evidence obtained abroad in a 

fashion contrary to Canadian standards might, for example, be excluded 

because its admission would breach the Charter right to a fair trial. 38 

However, as evidence from social networking websites is gained with 

the cooperation of the US, Charter issues relating to admissibility rarely 

arise. In the US, both state and federal Bills of Rights 39 provide protection 

against unreasonable search and seizure, and statutory and common law 

protections for users of social networks against release of personal 

information usually exist. This generally satisfies the rights owed to 

Canadians under the Charter. 

3. Unauthorized access 

In the US, any attempt to obtain access to private information on a 

social network without the authorization of a valid search warrant, 

emergency exemption, or the consent of the account owner renders an 

individual liable to tort action. There are two possible torts: a civil tort 

under the SCA itself or an independent tort of computer trespass. 40 In 

Canada, however, there has been a case where a court admitted 

unauthorized content accessed by a spouse who knew her ex-husband’s 

password without any reprimand from the court. 41 

IV. CRIMINAL PROCEEDINGS 

A. Obtaining Social Network Evidence 

Obtaining social network evidence in a criminal proceeding has 

become standardized for law enforcement agents. Larger social networks, 

37 

R v Hape, 2007 SCC 26, 2 SCR 292 [Hape]. An exception may be made if there is a 

violation of a binding international human rights obligation: see Canada (Justice) v 

Khadr, 2008 SCC 28, 2 SCR 125. 

38 

Hape, supra note 37. 

39 

US Const amend IV. 

40 

See SCA, supra note 8 at § 2701; Miller v Meyers, 766 F Supp (2d) 919 (WD Ark 2011). 

41 

S(MN) v S(JT), 2009 BCSC 661 (available on WL Can).


such as Facebook and MySpace, have internal departments dedicated to 

handling law enforcement requests and have handbooks available to law 

enforcement with sample forms and dedicated contact lines. Social 

networks and internet companies are obliged under American law to 

release profile information directly to law enforcement once a court order 

is obtained. With proper authorization, social networks in the US may be 

compelled to provide law enforcement with subscriber information or 

with the contents of a user’s account. They may also be mandated to 

preserve or back up a users’ account when presented with a subpoena or 

search warrant. Unlike the US, Canada does not require that website 

operators located in Canada preserve material (when requested) before 

issuing a search warrant. 42 As most social networks are located in the US, 

law enforcement may send a request to a social network to hold 

information while they request a search warrant. 

B. Production Orders 

Law enforcement is not granted unlimited access to a subscriber’s 

account. They are prevented from receiving content information without a 

valid search order under the US’ SCA and then only if: 

the governmental entity offers specific and articulable facts showing that there 

are reasonable grounds to believe that the contents of a wire or electronic 

communication, or the records or other information sought, are relevant and 

material to an ongoing criminal investigation. 43 

Social networks will recognize a foreign subpoena, discussed below, for 

basic subscriber information, but require foreign officials to directly seek 

an American issued search warrant. 

Access to subscriber records in the US, including the name of the 

account owner, the account owner’s email address, date of creation, and 

the IP address used to access the account, requires a court order or an 

administrative subpoena under section 2703 of the SCA. A production 

order issued in Canada under section 487.012 of the Criminal Code 44 

42 

The Department of Justice has circulated a discussion paper that considers whether 

preservation orders should be introduced into the Canadian criminal code. Online: 

. 

43 

SCA, supra note 8 at § 2703 (d). 

44 

Criminal Code, RS C 1985, c C-46, s 487.012 [Criminal Code].


should suffice for the purpose of the American requirement. 45 When 

requesting material, a law enforcement agency should be clear on what 

data they seek and provide the user account number. 

The bar for obtaining an order is fairly low in both the US and 

Canada. For example, regarding the release of confidential government 

documents by WikiLeaks, a request by Twitter and three of its subscribers 

to require a higher standard of proof before allowing release of this basic 

information was denied. 46 A Virginia court found that law enforcement or 

a government entity must show that the record sought without consent is 

“relevant and material” to a criminal case and that the “requirement of a 

higher probable cause standard for non-content information voluntarily 

released to a third party would needlessly hamper an investigation.” 47 

In the US, a court has found evidence obtained via an emergency 

request admissible, as subscriber information does not have a high 

expectation of privacy. 48 Under the SCA there is a provision in the event 

of an emergency where an individual’s safety may be at stake permitting 

social networking companies to release information without a court 

order. 49 The standard in Canada for obtaining a production order is that 

there are reasonable grounds to believe an offence has been, or is 

suspected to have been, committed, and that the document will contain 

evidence respecting the commission of an offence. 

Any attempt to find useful information from subscriber records 

regarding a social networking site will likely require more than one 

production order to prove an account was created or accessed by an 

individual. Social networking sites will generally only require an email 

address to create an account and store an IP address. A second production 

order will be required from an ISP to match the IP address with a physical 

address. For instance, in R v Weavers, 50 police investigating online threats 

sent a production order to MySpace to obtain an IP address, and from this 

IP address they tracked the account to Bell Canada, from whom they 

45 

“MySpace’s International Law Enforcement Guide” (8 July 2008) acknowledges they 

will accept international subpoenas. This guide is not publicly published, but is 

available upon request from MySpace.com. 

46 

Re 2703(d), supra note 10. 

47 

Sparks, supra note 2 at 4. 

48 

US v Beckett, 2010 WL 776049 (Fla CA 11). 

49 

SCA, supra note 8 at § 2702 c (4). 

50 

R v Weavers, 2009 ONCJ 437 (available on WL Can) [Weavers].


obtained a physical location. Any attempt to obtain an IP address should 

note the exact time a user was suspected to log in, as often they are issued 

temporarily and may be reassigned to other subscribers. Often this 

information may be used to obtain a physical search warrant for the 

location. 

C. Search Warrants 

Content from an American based social network may only be accessed 

with a valid search warrant based on probable cause and reasonable 

grounds. Requirements under section 487 of the Criminal Code to issue a 

search warrant in Canada are similar to those of the US. 51 With the 

exception of good-faith emergency requests, Canadian law enforcement 

require an enforceable American search warrant. Processing a search 

warrant is handled by the Canada Mutual Legal Assistance on Criminal 

Matters Treaty with the United States. 52 An investigative request with 

reasonable grounds and sufficient detail should be provided to the 

International Assistance Group in the Canadian Department of Justice, 

the assigned contact for cross-border searches. The International 

Assistance Group, in turn, works with its US counterpart to obtain the 

appropriate warrant. 53 

Companies such as Facebook have dedicated resources to handle 

search warrants, and may provide a large amount of personal information, 

photos, private messages or other information from a user’s account, 

following a proper request by investigators. Although not a common 

occurrence, there have been cases where representatives from a social 

networking company have testified at trial as to the contents of a social 

networking account. 54 

In criminal cases, the ability to access information for the investigative 

process is limited to law enforcement and the prosecution. The SCA 

51 

Criminal Code, supra note 44. 

52 

Treaty between the Government of Canada and the Government of the United States of 

America on Mutual Legal Assistance in Criminal Matters, 18 March 1985, RTC 1990 No 

19. See Mutual Legal Assistance in Criminal Matters Act RSC, 1985, c 30 (4th). 

53 

“The Federal Prosecution Service DESKBOOK ch 43”, online: Public Prosecution 

Service of Canada . 

54 

State v Wiley, 68 So (3d) 583 (La App 5 Cir 2011). A MySpace representative appeared 

on behalf of the prosecution to authenticate an account.


prevents social networking companies from disclosing any content or 

personal posts or photos to non-governmental entities. American courts 

appear to reject attempts by defendants to subpoena information directly 

from a social network. While not binding, a California appellate court in 

People v Yaqoob denied a subpoena request upon MySpace by the 

defendant in an attempted rape case on the basis that such a request 

would violate US federal law. 55 

Canada’s privacy legislation, PIPEDA, is not as stringent as the SCA, 

and section 7(3)(c.1) allows companies based in Canada (including 

internet service providers) to voluntarily release subscriber information or 

content to a government authority without a search warrant in a police 

investigation. 56 If a company chooses to cooperate, any record may be 

handed over without the knowledge or consent of the owner. 

A defendant in Canada could attempt to compel a witness to provide 

a copy of their Facebook account under a court-ordered subpoena under 

section 700(1) of the Criminal Code. 57 Although there has been no case law 

on whether this has been tried, there have been cases where police have 

obtained records through the consent of a witness. For example, in R v 

Spackman, 58 police obtained chat transcripts from Facebook through the 

consent of a witness in a murder case, although the court later excluded 

the chats due to suspicions that the witness was not truthful. 

D. Admitting Social Networking Evidence at Trial 

While a production order or a search warrant may provide potential 

evidence, a large body of case law surrounds when social network evidence 

is admissible. The main considerations are whether the evidence can be 

authenticated, how it can be used, and whether the evidence proves to be 

more probative than prejudicial. 

55 

People v Yaqoob, 2011 WL 264717 (Cal App 4 Dist). 

56 

PIPEDA, supra note 24. Provision 7(3)(c.1) provides immunity to companies who 

release information to law enforcement or a government agency to administer or 

enforce any provincial or national law, as well as if the information relates to national 

defence or international affairs. The SCA, supra note 8, only permits this in an 

emergency (see section 2703). 

57 

Criminal Code, supra note 44, s 700(1). (A witness may be compelled to bring in their 

own documents). 

58 

R v Spackman, 2009 CarswellOnt 4214 (WL Can), 2009 CanLII 37920 (Ont Sup Ct 

J).


1. Authentication 

In both Canada and the US, evidence such as photographs or 

documents must be authenticated before they can be admitted. The 

person introducing evidence must demonstrate to the court that the 

evidence is the untampered product of the particular person to which the 

party wishes to attribute authorship. When evidence allegedly comes from 

a social network and exists electronically, the need to authenticate 

increases as it becomes easier to manipulate. 

Assumptions about who created an account can open the door to 

defence lawyers and lead to an acquittal. There have been cases where 

individuals have created fake accounts, or broken into a home network in 

an attempt to frame their neighbours. In People v Heeter, 59 a woman was 

convicted of trying to submit a false document to court after she created 

an account under her partner’s ex-wife’s name and sent fake emails in an 

attempt to make it look like the woman was harassing her. Most social 

networking sites are accessed freely and do not require verification that a 

person creating an account is doing so under their own name. 

Even if a social networking site captures an IP address of the user or 

creator of an account, this information may not be conclusive. For 

instance, in US v Ardolf, 60 a man was convicted of hacking into his 

neighbour’s wireless signal in order to send fake threats to politicians and 

emails that contained child porn. The defendant had used software 

available online that allowed him to break the password encryption on the 

router. This was only discovered when the neighbour, a lawyer, had his 

company’s security expert install a special piece of hardware which allowed 

him to monitor all computers that accessed his network. Most home 

network security features are rudimentary and can be bypassed or hacked 

with some technical knowledge. 

In Canada, because the broad language of admissibility provided by 

the Canada Evidence Act allows authentication by “respect of any 

standard”, judicial decisions regarding admissibility are not based on rigid 

traditional rules. In the past, courts relied heavily on the “best evidence 

rule”, however with modern technology this rule has been rendered 

obsolete and the question is more about the weight courts should put on 

59 

People v Heeter, 2010 WL 2992070 (Cal App 2 Dist). 

60 

US v Ardolf, 2010 WL 3604099 (D Minn).


the evidence. 61 For instance, in R v Harris, 62 a 23-year-old man was 

convicted of attempting to lure a 14-year-old into having sexual 

intercourse. The court looked at the totality of evidence to prove that 

sexually inviting messages were sent from an account operated by the 

accused. The prosecution presented evidence that the account had the 

name of accused on it and a picture of his dog. The brother of the accused 

testified as to the ownership of the account. Some of the messages 

contained personal details only known to the accused and the victim. 

Forensic software was run on the accused’s computer to reveal some of the 

chat transcripts. The defence raised questions about whether someone else 

may have had access to the computer, but the court found the evidence 

was sufficient to prove the accused’s own authorship. 

Canadian jurisprudence has not discussed in detail whether a 

minimum level of authentication should exist before social networking 

evidence is admissible, nor has it analyzed at length the meaning of “any 

standard”. A number of American decisions however, have provided a 

clearer picture. These cases are useful in determining how courts in both 

countries should approach authentication and outline important 

considerations that should take place before social networking evidence is 

admitted in a trial. 

2. Expert testimony 

The first consideration when handling social network evidence is to 

have an expert available who understands how a social networking account 

is created, or who can testify to the likelihood that a picture has been 

manipulated. This may be a police officer trained in social networking, or 

an independent IT consultant. In People v Beckley, 63 a California court, 

discussing a photograph taken from MySpace and used in a murder trial, 

emphasized the importance of having an expert able to authenticate the 

subject matter of a photo if there is not an independent witness to testify 

to its accuracy. The court also underscored that in the age of computers, 

61 

John Sopinka, Sidney Lederman & Alan Bryant, The Law of Evidence in Canada 3d ed 

(Markham, ON: LexisNexis Canada Inc. 2009) at 1225. This rule prioritized original 

copies or works over replications. With electronically stored information, the only way 

to transfer documents may be to replicate them. 

62 

R v Harris, 2010 PESC 32 (available on WL Can). 

63 

Beckley, supra note 22 at 2.


“it does not always take skill, experience, or even cognizance to alter a 

digital photo.” 64 Widely available computer applications such as Adobe 

Photoshop allow users to manipulate photographs, combine images and 

remove potentially important details in a way that may be unnoticeable to 

the average eye. 

3. Corroborative evidence 

The second consideration is the danger of making assumptions about 

the author of an email or creator of an account without adequate 

evidence. It may be unsafe, for example, to rely on the mere fact that an 

individual owns an account, or that their name or password has been 

used. In Commonwealth v Purdy the court stated: 

Evidence that the defendant's name is written as the author of an e-mail or that 

the electronic communication originates from an e-mail or a social networking 

Web site such as Facebook or MySpace that bears the defendant's name is not 

sufficient alone to authenticate the electronic communication as having been 

authored or sent by the defendant. 65 

There must be a certain threshold created by a separate “confirming 

circumstance.” 66 This confirmation could be made by way of physical 

evidence showing the account or files on an individual’s computer, or 

through the manner in which the defendant characterized him or herself. 

The confirming circumstances can be described in two ways. The first is 

physical authentication and the second is content-based authentication. 

Wherever possible, physical authentication that a suspect created an 

account should be sought. This may require a physical warrant to search 

the suspect’s computer and may require using some form of software to 

forensically scan the computer as was done in R v Weavers 67 or 

Commonwealth v Purdy. 68 Often, a web browser such as Internet Explorer 

will leave logs on the computer containing remnants of chats or messages. 

To ensure a conviction, investigators have even gone as far as to make an 

64 

Ibid. 

65 

Com v Purdy, 945 NE (2d) 372 at 381 (Mass 2011) [Com]. 

66 

Ibid at 449. 

67 

Weavers, supra note 50. 

68 

Com, supra note 65.


arrest when they knew the accused was logged into the account while at 

work. 69 

Content-based authentication relies on the specific content of an 

account or message for personal details or language that may be distinct to 

a suspect. This can be a highly subjective process and should be used with 

care. Morris J of a Texas appeal court discussed it in Tienda v State: 

The inherent nature of social networking websites encourages members who 

choose to use pseudonyms to identify themselves by posting profile pictures or 

descriptions of their physical appearances, personal backgrounds, and lifestyles. 

This type of individualization is significant in authenticating a particular profile 

page as having been created by the person depicted in it. The more particular 

and individualized the information, the greater the support for a reasonable 

juror's finding that the person depicted supplied the information. 70 

The court found that references to events surrounding a murder and posts 

describing the accused being put on an electronic monitoring program 

provided sufficient information for a jury to decide whether the account 

belonged to the accused. 

The presence of information that could be known only to the accused 

or victim may be sufficient to at least provide authentication of evidence 

for the purpose of admissibility. The trier of fact will still need to decide 

whether this is conclusive. A number of opinions demonstrate how courts 

have admitted evidence based on distinctive circumstantial details. In 

People v Fielding, 71 the court found that chat transcripts containing 

information the accused and victim discussed in person provided 

sufficient proximity to allow the transcripts to be introduced. Any alleged 

discrepancies were to go to the weight, or importance, placed on them. In 

People v Goins, 72 the appeals court found the trial judge wrongly excluded a 

MySpace page that could only have been known to the victim and accused. 

The defendant had wished to introduce it and the appeals court 

recognized that it contained “descriptive details of the assault that fit 

within what a reasonable person would consider to be distinctive 

content.” 73 

69 

R v McCall, 2011 BCPC 7 at 13 (available on WL Can). 

70 

Tienda v State, 2010 WL 5129722 (Tex App-Dallas) at 5. 

71 

People v Fielding, 2010 WL 2473344 (Cal App 3 Dist). 

72 

People v Goins, 2010 WL 199602 (Mich App). 

73 

Ibid at 2.


4. Importance of proper authentication 

The importance of corroborative evidence and proper authentication 

should not be understated. Basic content such as a photograph of an 

accused or a basic profile are insufficient; they leave the door open for 

reasonable doubt. In the US, a number of cases have been overturned 

because of the role speculation played. 

In Griffin v State, the Maryland Court of Appeal overturned a murder 

conviction because a trial court allowed a MySpace account to be admitted 

without authenticating it. 74 The lead investigator printed out a copy of the 

profile that they assumed belonged to the girlfriend of the suspect and 

tried to use the photo of the girlfriend and her birth date as 

authentication. The court ruled that the police should have attempted to 

introduce more confirming evidence such as cookies or physical 

authentication. 

Shared computers can also raise problems. In R v Johnson, 75 the 

Ontario Superior Court found the accused not guilty of sexual trafficking 

in part because there were questions about whether it was the accused or 

his girlfriend who was accessing and posting to a Facebook account. In any 

case where key evidence exists as a result of online activities, law 

enforcement will need to collect sufficient evidence to infer that the 

accused was in fact the user of the computer. Many web browsers save 

passwords on a computer so that anyone with physical access to a 

computer may log onto an account and make posts without the consent of 

the user. This is particularly problematic in offices, where a computer may 

be in an unsecure environment, or in a residence, where parents, 

roommates or children may have access to the same computer. 

Where possible, enough confirming evidence should be gathered to 

ensure the judge or jury can infer that there is no reasonable doubt or 

alternative explanation as to who created or used a particular social 

networking account. 

5. Determining admissibility 

When a criminal court is dealing with social networking evidence, 

they are primarily dealing with either incriminating statements or with 

photographs that reveal some insight into the crime. With the 

74 

Griffin v State, 19 A (3d) 415 (Md App 2011). 

75 

R v Johnson, 2011 ONSC 195 (available on WL Can).


prosecution, the court will usually undertake the weighing exercise from R 

v Seaboyer 76 as to whether the evidence is more probative than prejudicial 

(which serves to prevent inflammatory statements or embarrassing 

photographs from distracting the court). When the defence attempts to 

bring in social networking evidence, the main issue is whether the 

evidence is relevant and probative and whether there are any rules barring 

the particular nature of the questioning related to the evidence. 

6. Challenging the credibility of witnesses 

Attempts by the defence to introduce social networking evidence 

occur most often in cases involving sexual assault, to speak to the 

credibility of the complainant. It also occasionally arises in cases where the 

accused claims self-defence. 

In sexual assault cases, courts in Canada are constrained by Section 

277 of the Criminal Code that limits “evidence of sexual reputation, 

whether general or specific” concerning the complainant. 77 Similar rules 

requiring the exclusion of any evidence of past sexual conduct exist in the 

US. For example, in the unreported decision People v Greenspan, 78 the 

court denied a request by the defence to introduce Facebook photos of the 

complainant posing in a sexually suggestive manner. In State v Corwin, 79 

the court prevented the defence from introducing Facebook posts by the 

complainant in which she bragged about getting drunk and waking up 

with bruises. 

Similar limitations may occur in general assault cases. In R v Jilg, 80 the 

British Columbia Supreme Court did not allow the defendant to 

introduce photographs from the complainant’s Facebook page to 

challenge her testimony as to the extent of her injuries from his assault at 

his sentence appeal. The defendant had wished to use Facebook posts 

from after the incident to minimize the severity of the injuries. The court 

found the evidence was not probative of the danger the accused presented 

to society. In State v Makue, 81 a Hawaiian court found that a MySpace 

76 

[1991] 2 SCR 577, 83 DLR (4th) 193. 

77 

Criminal Code, supra 44, s 277. 

78 

People v Greenspan, 2011 WL 809552 (Cal App 4 Dist). 

79 

State v Corwin, 295 SW (3d) 572 (Mo App SD 2009). 

80 

R v Jilg, 2010 BCSC 1476 (available on WL Can). 

81 

State v Makue, 2011 WL 988560 (Hawaii App).


photo of a victim holding a beer had no relevance to whether the 

complainant was credible when he testified he was not drinking on the 

day. There was no evidence that the photograph was taken on the day of 

the assault. In a murder case, People v Mills, 82 the court prevented the 

defence from introducing MySpace photos of the victim holding a firearm 

in making its case for self-defence, since there was no evidence that the 

defendant was aware of the photograph. 

Courts have allowed the defence to introduce Facebook profile 

evidence where there is particular relevance to the credibility of a witness 

or to the defendant’s perception of the events. In R v Garroway, 83 the 

defence was permitted to introduce evidence that a 13-year-old 

complainant in a sexual interference case had lied about her age by listing 

it as 18 on her Facebook profile. An Ontario court acquitted the 

defendant, finding a reasonable doubt as to whether the accused ought to 

have known the girl’s age. Similarly, an appellate court in the US 

overturned a conviction for statutory rape of a youth under 14. The trial 

judge did not permit the jury to consider applying a lesser charge after the 

complainant listed her age as 15 on her MySpace account. 84 

As with all evidence, any attempt to challenge the credibility of a 

witness or a complainant using social networking photographs or 

statements should be done while the witness is on the stand. 85 In R v 

Gardiner, 86 a New Brunswick trial judge refused to allow the defence to 

introduce a witness to testify that the complainant admitted to perjuring 

herself in phone conversation and corroborating Facebook messages 

because they did not fully raise the issue while the complainant was 

testifying. Fortunately for the accused, the Court of Appeal overturned the 

case on the basis that Mr. Gardiner was ineffectively defended. 

It is common for the prosecution to challenge the credibility of a 

defendant who chooses to testify by using their social networking profile. 

As with all character evidence, this should not be used on its own, but 

82 

People v Mills, 2011 WL 1086559 (Mich App). (At 13, the court notes that if the 

accused had been aware of the photograph, it would have been admissible to establish 

a reasonable apprehension of harm). 

83 

R v Garraway, 2010 ONCJ 642 (available on WL Can). 

84 

State v Berry, 238 Or App 277 (Or App 2010). 

85 

The rule in Browne v Dunn (1893) 6 R 67 HL. 

86 

R v Gardiner, 2010 NBCA 46, 260 CCC (3d) 336.


used to rebut the credibility of an accused if they choose to testify. 87 For 

example, in R v Telford, 88 an accused man’s Facebook message to his 

girlfriend, “I bet you don’t want me to see you again,” was used to 

challenge the credibility of his version of events in which he denied 

assaulting her. Furthermore, some courts in the US have allowed evidence 

that is highly prejudicial, and otherwise inadmissible, when a defendant 

testifies about their own character. In Hall v State, 89 the court allowed the 

prosecution to question a woman charged with obstructing justice about 

her Facebook profile. She claimed she was an unwilling participant in 

disposing a body and the prosecution pointed out that she listed a number 

of horror movies and novels amongst her interests and that her summer 

plans included, “I should really be more of a horrific person. It’s in the 

works.”[sic] 90 Likewise, a court in Indiana allowed the prosecution to 

question a father who was accused of murdering his child on statements 

made on his MySpace profile. 91 In those statements, he claimed to be an 

outlaw who was able to “do it and get away”. The father, who admitted to 

violently assaulting his daughter, attempted to claim on the stand that he 

was reckless and should be tried with manslaughter instead of murder. 

The court found that since the father made his character a central issue by 

testifying, evidence of his past statements on his profile were admissible, 

whereas evidence of past criminal actions would not have been. 

7. Probative value versus prejudicial effect 

For courts determining whether to admit potentially incriminating 

social network evidence, one of the central concerns is ensuring that 

inflammatory material with little relation to the matter at hand is not 

considered. The judge must decide whether material genuinely is 

probative, and whether it will potentially introduce prejudice. Fairness and 

integrity of the legal system require that sufficient proof be presented and 

necessitates that immature statements or inappropriate pictures do not 

create any preconceptions of guilt. Even in a case tried without a jury, the 

87 

Paul Atkinson, Proof: Canadian Rules of Evidence (Markham, Ont: LexisNexis, 2007) at 

64. 

88 

R v Telford, 2009 ONCJ 174 (available on WL Can). 

89 

Hall v State, 283 SW (3d) 137 (Tex App-Austin 2009). 

90 

Ibid at 149. 

91 

Clark v State, 915 NE (2d) 126 (Ind SC 2009).


judge should avoid any misleading character evidence unless it is deemed 

essential to the facts of the case. This is important based on the nature of 

social networking. 

Users of Facebook or MySpace often engage in behaviour that may be 

considered ridiculous by traditional societal standards: posting lewd 

pictures, bragging about how intoxicated an individual has become, 

making generally impulsive statements, or even making false or highly 

exaggerated claims regarding their behaviour. However, with the exception 

of some family law cases where one’s behaviour may be applicable to their 

ability to raise children, it is generally not the court or jury’s role to 

become the judge of appropriate taste. 

When admitting social networking profiles and pages, a judge may 

determine that to maintain fairness, some or all posts or photos should be 

excluded and that potential evidence must be shown in a particular way. 

In R v Sinclair, the accused in an Ontario murder trial wanted to 

demonstrate that one of the prosecution’s witnesses and the accused were 

in a gang by showing a rap video downloaded from YouTube. 92 O’Marra J 

ruled that the violent music and lyrics would be overly prejudicial, but 

allowed the admissibility of still photos captured from the video to 

challenge the whether the witness was in a gang with the deceased: 

The YouTube tribute video is not evidence of reputation or proof of previous 

acts of violence. There is no probative value to it to prove a disposition for 

violence on the part of the deceased capable of supporting the probability that 

the deceased was the aggressor. However, the defendant should not be prevented 

from making use of the above described photographs depicted in the video in 

cross-examin[ation] 93 

Similarly, a Texas Court admitted a MySpace video in a murder trial 

of the accused brandishing a firearm because it found the video probative, 

but did not permit the audio. 94 An appeal court reviewing the decision 

found that while a video showing a suspect with a firearm sometime before 

a crime may be prejudicial and inadmissible on its own, it had probative 

value because a witness testified the defendant used the same handgun 

used in the shooting and it demonstrated that the defendant had access to 

the specific firearm. In contrast, a Georgia court found that a YouTube 

92 

Sinclair, supra note 19. 

93 


94 

Brumfield v State, 2010 WL 5187690 (Tex App 1 Dist).


video with violent lyrics about gang lifestyle written by an acquaintance of 

a suspect was not admissible as it was both hearsay and unfairly 

prejudicial. 95 

Courts have been reluctant to admit photographs from a suspect’s 

social networking profile unless they have a highly probative value. 

Generally, they are considered inadmissible character evidence. In US v 

Phaknikone, 96 an appeals court found that photographs from a MySpace 

profile under the user name “trigga” of an accused brandishing a firearm 

was highly prejudicial and not probative of whether an accused robbed a 

bank. It was not relevant to any detail from the robbery and thus 

wrongfully admitted. The appeal court also outlined the evidentiary test 

for admissibility of evidence in a US federal court: 

First, the evidence must be relevant to an issue other than the defendant's 

character. Second, as part of the relevance analysis, there must be sufficient proof 

so that a jury could find that the defendant committed the extrinsic act. Third, 

the probative value of the evidence must not be “substantially outweighed by its 

undue prejudice. 97 

Prejudicial evidence may be admissible in certain circumstances. In US 

v Drummond, 98 a court did not allow the prosecution to admit photographs 

from MySpace of an accused drug dealer posing with large amounts of 

cash and a gun. This was despite the accused having no job or legal 

income source. The court found that it would be prejudicial for a jury to 

convict him because he looked like a drug dealer. However, the court 

stated that if the prosecution could find witnesses to testify that the 

accused had large amounts of cash and the defendant denied this, then “it 

is possible that the relevance of the photos could outweigh any unfair 

prejudice.” 99 The probative value of evidence increases when the 

defendant takes the stand and provides contradictory testimony. 

On the other hand, social networking photographs or profiles can be 

highly probative. In R v S(MC), Facebook pictures played a strong role in 

an attempted murder conviction. 100 The youth, who had a troubled past, 

95 

US v Gamory, 635 F (3d) 480 (CA 11 Ga 2011). 

96 

US v Phaknikone, 605 F (3d) 1099 (CA 11 Ga 2010). 

97 

Ibid at 1107. 

98 

US v Drummond, 2010 WL 1329059 (MD Pa). 

99 

Ibid at 2. 

100 

R v S(MC), 2010 NSPC 26 (available on WL Can) [S(MC)].


depicted himself on his Facebook as “SoulJa” and his chosen profile 

picture depicted him wearing a hat and with a bandana over his face. 

Judge Campbell found this to be very relevant: 

The person who shot Michael Patriquen was a black male wearing a camouflage 

bandana covering his face and a dark baseball cap pulled down to his eyes. That 

description bears a striking similarity to the pictures of M.C.S. posted on 

Facebook, where he is described as S. 101 

The profile picture complemented other circumstantial evidence from 

Facebook. The suspect’s nickname on Facebook matched messages found 

on a cell phone in a stolen vehicle recovered nearby (which belonged to 

the suspect’s grandfather). Other Facebook evidence showed that a jacket 

worn in the shooting and found in the vehicle was the same as one the 

defendant wore in other pictures he uploaded to Facebook. The judge’s 

statements demonstrate that even a prejudicial photograph may sometimes 

be sufficiently probative to justify admission. 

Even highly prejudicial or inflammatory photos may occasionally have 

a legitimate purpose. In Williamson v State, an appeal court affirmed the 

admission of photographs of the accused in an assault and robbery case 

committed by a gang of youths, finding the photos relevant in showing the 

girls acted in concert with each other. 102 Although the court recognized 

that even relevant photographs should be excluded if they are overly 

prejudicial, the court held that: 

The mere fact that a photograph is inflammatory or cumulative is not, standing 

alone, sufficient reason to exclude it. […] Even the most gruesome photographs 

may be admissible if they assist the trier of fact by shedding light on some issue, 

proving a necessary element of the case, enabling a witness to testify more 

effectively, corroborating testimony, or enabling jurors to better understand the 

testimony. 103 

8. Determining weight and context of evidence 

While it is up to the judge to determine whether evidence can be 

admitted or not in a criminal proceeding, it is up to the trier of fact to 

assess the weight or believability of the evidence. Courts should 

acknowledge that statements individuals make on an online chat forum or 

when posting to a social network have a greater likelihood of being 

101 


102 

Williamson v State, 2011 Ark App 73 (Ark App 2011). 

103 

Ibid at 15.


exaggerated or untrue. Anonymous individuals may post things that they 

would not say in person, or they may be attempting to brag to their online 

friends. Furthermore, a post, image, video or message may be unclear, 

reveal only part of a story, or be taken out of context. 

Nevertheless, some Canadian courts have assumed that incriminating 

statements made online are truthful. In R v Tscherkassow, a man’s 

conviction of assault at a gay bar was secured through an eyewitness 

account and with the accused’s own self-incriminating statement on 

Facebook. 104 A prosecution witness testified that the accused bragged 

about “supermanning a fag or a fairy” 105 in one of his status updates. The 

judge rejected the accused’s claim that he lied, determining that 

“[c]ommon sense and reasonableness suggest that one would not post such 

a statement for those reasons where the statement is untrue.” 106 

Similarly, in a tax dispute case, a court rejected a salon worker’s 

contention that his employment history contained inaccurate information: 

Mr. Hall described himself on Facebook as a self-employed hair colour specialist. 

Everything else about him on his Facebook info page he says is true. This is his 

own description of his work status made voluntarily, describing his work during 

the period he worked at the appellant's salon. It was made in a setting where 

nothing seemed to turn on it. Though he now says it alone was untrue and 

dishonest, he cannot explain why this would be the one thing he would choose 

to lie about on Facebook regarding his personal information. 107 

Other courts have approached incriminating social networking 

statements with a more skeptical approach, realizing that there is a need to 

evaluate the context of a post. This has surfaced in cases where individuals 

are accused of making threats and contend they were blowing off anger 

and frustration. In R v Lee, 108 the defendant was acquitted of making death 

threats. The judge was unsure of the context of certain statements and 

remarked that the format of Facebook “diminishes the seriousness that 

can be attached to the words.” 109 In R v Sather, the judge recognized an 

expert witness who testified: 

104 

R v Tscherkassow, 2010 ABPC 324 (available on WL Can). 

105 


106 

Ibid at para 136. 

107 

Shonn's Makeovers & Spa v Minister of National Revenue, 2010 TCC 542 at para 27 


108 

R v Lee, 2010 ONCJ 291 (available on WL Can) [Lee]. 

109 

Ibid at para 9.


…people who profile themselves embellish their character. They deliberately say 

provocative things to elicit a response from their Facebook “friends”. In a sense 

they construct an alternate persona. 110 

Even if an individual’s posts are genuine and serious, courts should be 

cautious when it comes to understanding the context of videos, 

photographs, posts, and messages. 

In R v Huber, 111 a judge downplayed a video posted on YouTube 

because of its limited context. This case became notorious after the video 

of a black man fending off three white attackers in a small British 

Columbia community became widespread. The judge warned of the 

limited weight that often should be put on videos posted online: 

But the YouTube segment is misleading. To view it out of context is akin to 

walking into the middle of a movie. At that stage, characters have already 

formed, the storyline established, and the plot well along. So it is in the case at 

Bar. 112 

Statements themselves or messages must also ensure they are put in an 

appropriate context. Text messages or private communications can be 

challenging. In R v P(N), 113 a judge dealing with a sexual interference case 

between a female care giver and an underage male, acknowledged the 

difficulty of applying a strict legal framework to personal communications: 

Having done so I conclude that drawing inferences from any of this material, for 

or against the positions of the Crown or the defence in this case would ultimately 

involve me in a process of interpretive speculation. I elect not to go there. I 

attach no weight to this material apart from supplying interesting context. 114 

Particularly in a criminal trial, it is important that speculation be 

avoided and appropriate weight be placed on communications. In R v 

Anderson, 115 a Prince Edward Island appeal court overturned a criminal 

conviction of a female soccer coach who was accused of sexually exploiting 

a former player. The trial judge concluded that messages between the 

coach and the player were evidence of an inappropriate relationship. 

However, the appeal court found that the judge overlooked evidence that 

110 

R v Sather, 2008 ONCJ 98 at para 9 (available on WL Can) [Sather]. 

111 

R v Huber, 2010 BCPC 347 (available on WL Can). 

112 


113 

R v P(N), 2010 ONSC 3184 (available on WL Can). 

114 


115 

R v Anderson, 2009 PECA 4 (available on WL Can).


showed that communications between the complainant and other coaches 

and players contained similar language and that “the messages were 

nothing more than adolescent chatter.” 116 

E. Use of Social Networking Evidence 

1. General incriminating evidence 

Often, as discussed above in S(MC), 117 photographs from Facebook 

may be used to connect an individual to clothing worn at a crime. In a 

case yet to go to trial, investigators identified an alleged bank robber after 

matching clothing worn in the robbery to clothing the suspect wore on his 

Facebook account. 118 Occasionally, a Facebook profile picture may even 

serve to raise suspicion about ongoing illicit activities. In R v Huxford, 119 an 

Ontario detective noticed a convicted felon who was not registered to own 

a firearm had posted a profile picture of himself holding a handgun. The 

detective sent a friend request, arranged to sell the felon a firearm and 

proceeded to arrest him when they met. 

Facebook evidence has been used in gaining authorization for search 

warrants. In US v McNamara-Harvey, 120 a Pennsylvania court authorized 

searching the laptop of a man suspected of domestic terrorism, based in 

part on anti-Israel comments he made along with threats about starting a 

riot. In one Canadian case, 121 evidence was excluded after police reported 

a suspect in a robbery was wearing the same bandana in a Facebook photo 

as was worn during a robbery in order to obtain a warrant. On review, the 

witnesses’ descriptions of the colour and the Facebook photo were 

inconsistent. 

In both Canada and the US, social networking photographs have been 

used in civil seizures related to criminal activity. For example, in Nova 

Scotia a court ordered a house suspected of being used for drug trafficking 

116 


117 

S(MC), supra note 100. 

118 

Bill Gallagher, “FBI Arrests Detroit Area Bank Robbery Suspect with Help from 

Facebook” (20 April 2011), online: WJBK Fox 2 . 

119 

R v Huxford, 2010 ONCJ 33 (available on WL Can). 

120 

US v McNamara-Harvey, 2010 WL 3928529 (ED Pa). 

121 

R v Morgan, 2010 ONSC 4258 (available on WL Can).


closed. Pictures of the owner posing with gang symbols and Facebook 

posts referring to a local gang were admitted as evidence that the house 

was posing a threat to community safety. 122 A New York Court ordered a 

car belonging to the father of a convicted drug dealer seized after extensive 

photos of the son driving the car were admitted from the son’s Facebook 

account and the court concluded that the car belonged to the father in 

title only. 123 

Savvy investigators may choose to go onto a social network such as 

Facebook or Twitter and search for posts with incriminating words. Some 

websites like Twitter allow users to extensively search all posts, many of 

which are public. An investigator may also use social networks to track 

down potential associates of a known individual by viewing their ‘friends 

list’. Individuals on the lam have been caught after posting photographs 

taken from the locations where they were staying. They can be 

apprehended after checking their Facebook account after a production 

order had been issued to release the IP address where the account was last 

logged on. Those with privacy settings enabled may be safe from amateur 

sleuths, but they will not be safe from their own ‘friends’ or from a valid 

and enforceable search order. 

2. Alibis and alternative explanations 

Defendants have used photographs to create an alibi or raise 

reasonable doubt by introducing social networking evidence to their 

advantage. In R v Lorette, 124 a defendant accused of inappropriately 

touching a random woman in a bank was acquitted of sexual assault. He 

successfully argued that he had mistaken the woman for a former 

girlfriend after introducing Facebook photographs of a woman who 

resembled the complainant. In R v E(SR) 125 a man convicted of robbery 

mitigated his sentence slightly by using pictures from his Facebook 

account to show that some of the allegedly stolen jewelry was in his 

possession prior to the theft. 

122 

Nova Scotia (Director of Public Safety) v Dixon, 2011 NSSC 5, 297 NSR (2d) 337. 

123 

DiFiore v Mozeb, 918 NYS 2d 836, 2011 WL 893009 (NY Sup 2011). 

124 

R v Lorette, 2010 ONCJ 259 (available on WL Can). 

125 

R v E (SR), 2010 SKPC 145 (available on WL Can).


3. Incriminating association 

Frequently, photographs or videos of individuals making gang handsigns 

or posing with other gang members have been introduced to 

complement other evidence. In US v Cole, 126 a Texas court admitted the 

defendant’s MySpace profile which showed him wearing gang colours and 

listing ‘drug wars’ as an interest. This was used to demonstrate that he was 

aware of a drug conspiracy rather than being an outside contractor 

working as a security guard like he claimed. In US v Sirianni-Navarro, 127 a 

court ordered a wife of a suspected drug dealer to be detained on the basis 

that she had photos of her husband with large amounts of cash on her 

Facebook page and thus likely was a knowing participant in his trafficking. 

In Lawrence v State, 128 photographs of the defendant from his MySpace 

account showing him with gang tattoos and appearing with other members 

of a gang were raised as an aggravating factor in sentencing. In an 

attempted murder conviction, a California court admitted a video from 

the accused’s MySpace page in which the man rapped about his rivalry 

with another gang who he was accused of attacking. This was used to 

corroborate a witness’s account. 129 In a robbery conviction, an Ohio court 

admitted MySpace posts in which the defendant bragged about being in a 

gang. 130 Since being a member of a street gang is illegal in some states, 

courts have blurred the lines around character evidence admitting 

otherwise prejudicial videos from YouTube and MySpace to demonstrate 

gang affiliation. 

4. Incriminating messages 

While some self-incriminating evidence is derived from the desire to 

share photographs or profile information, social networks are also 

becoming a ubiquitous means of communication. As a result, such 

communications are increasingly being used in criminal trials. In R v 

Todorovic, 131 Facebook messages in which a teenage girl expressed to her 

boyfriend that she wanted another girl killed were used to convict her of 

126 

US v Cole, 423 Fed Appx 452 (5th Cir Tex 2011). 

127 

US v Sirianni-Navarro, 2010 WL 5419034 (WD NY). 

128 

Lawrence v State, 2011 WL 1494035 (Tex App-Dallas). 

129 

Ibarra v McDonald, 2011 WL 1585559 (ND Cal). 

130 

State v Coe, 2010 Ohio 1840 (Ohio App 5 Dist). 

131 

R v Todorovic, 2009 CarswellOnt 9949 (WL Can).


being a party to the murder. In sentencing, the judge noted that the 

messages were strong evidence: 

What would, in another age, have shown up in personal notes exchanged 

between intimates, nowadays finds itself digitally recorded in cyberspace. The 

words, and their impact, are no less real, however. 132 

Even apologies made over a social network may be used as evidence. 

In R v F (KR), 133 the court determined an apology found in a message from 

a 17 year old to a 10-year-old girl was indicative of guilt in a sexual assault 

case. Similarly, in R v G (R), 134 the court found a father’s Facebook chat 

message asking if he should “go away, forever” and his failure to deny his 

daughter’s allegation of molestation was evidence of guilt. 

5. Threats and harassment 

Courts increasingly have to deal with threats and harassment 

committed on social networking sites. The challenge is determining what 

is criminal as opposed to what may simply be disturbing or inappropriate. 

As discussed above, the courts in Sather 135 and Lee 136 acquitted two men 

whose rants were made on their own Facebook accounts. In Lee, the 

accused did not direct his comments towards any individual, while with 

Sather there was reasonable doubt about the seriousness of the threats and 

whether they met the legal test: the accused “must intend the words to 

instil fear or intimidate.” 137 Sather had made comments referring to a 

“tactical strike” when discussing the Children’s Aid Society preventing 

him from having custody of his child. Despite this, the court found that he 

never intended to communicate them with any of the staff and thus did 

not mean to intimidate. 

Courts consider evidence differently if posted on an open social 

network or video-sharing site such as YouTube. In R v B(R), 138 two youths 

in Ontario were convicted of public mischief after posting a video 

threatening the President of the United States as a prank. They were 

132 


133 

R v F(KR), 2011 NLCA 2, 304 Nfld & PEIR 171. 

134 

R v G(R), 2010 ONSC 2157 (available on WL Can). 

135 

Sather, supra, note 110. 


Lee, supra note 108. 

137 

Sather, supra, note 110 at para 8. 

138 

R v B(R), supra note 18.


fortunate in that the judge gave them a conditional discharge with 

community service and a limited internet ban. In the US, courts have been 

far less lenient, particularly where the subject has a criminal record or 

appears with firearms. An American court sentenced a convicted felon to 

79 months in jail after he recorded a drunken video depicting him with 

automatic firearms making threats against law enforcement officials and 

posted it to his MySpace account. 139 

In addition, American courts appear more likely to convict individuals 

if they make an attempt to communicate a threatening post in an email or 

draw attention to it by providing a link. In US v Jeffries, 140 a man was 

convicted of making threats after recording a song in which he sang about 

killing a judge and posting it on YouTube and Facebook. In referencing 

the public nature of the post, the judge remarked: 

…it is reasonably foreseeable that some persons would be concerned by the 

content of the Defendant's song and statements and the serious and angry way in 

which he delivered them and would report the matter to some authority, law 

enforcement entity, or court official, such as actually happened in this case. If the 

Defendant shouted his message to a crowd of people who had knowledge about 

the circumstances of his custody dispute, like his sister and potentially her 

friends on Facebook, the likelihood that someone would report the threat only 

increases. 141 

In People v Costales, 142 Costales argued that threats towards an 

entertainer on Costales’ MySpace account were never intended to be 

communicated. The court rejected this argument; Costales had sent emails 

to the singer with links to the webpage where the threats were made. 

In addition to direct threats, online harassment on social networks is 

becoming increasingly common. In Placanica v State, 143 a Georgia court 

found a man guilty of harassment after attempting to repeatedly contact a 

sixteen-year old girl after she had ended their relationship. Online threats 

and harassment made by those with underlying mental illnesses are also 

becoming a problem. The Ontario Consent and Capacity Board routinely 

hospitalizes individuals with clear mental disorders who post death 

139 

US v Villanueva, 315 Fed Appx 845 (Cir 11 Fla 2009). 

140 

US v Jeffries, 2011 WL 613354 (ED Tenn) [Jeffries]. 

141 

Ibid at 10. 

142 

People v Costales, 2010 WL 2044637 (Cal App 2 Dist). 

143 

Placanica v State, 693 SE (2d) 571 (Ga App 2010).


threats 144 or send threatening emails. 145 Another common form of 

harassment is creating fake accounts for the purpose of impersonation, 

although courts do draw a line between creating a website for satire or 

mockery and actions intended to cause real harm. In Clear v Superior 

Court, 146 a Californian court found a man guilty of false personation after 

he created a fake MySpace account for a pastor and made lewd statements. 

The court found that while it was not illegal to make a fake account, doing 

so for the purpose of sending embarrassing messages to get the pastor fired 

was a felony. A similar case in Canada, involving a group of unknown 

individuals creating a fake account under a juvenile’s name to discuss her 

sexual activities, will be discussed further below. 147 

6. Sentencing 

A court may consider social networking evidence in determining 

sentencing. At this stage of the criminal process, the concern becomes 

evaluating a person’s character to determine the likelihood of reoffending 

and necessary deterrents. In Smith, the judge found the ‘arrogantly sinister 

gangster’ image a youth presented on his Facebook account a factor in his 

decision to give that youth an adult sentence. 148 

Social networking and online conduct may directly relate to the crime. 

In R v Desilva, 149 a judge found a man’s decision to upload a sex video of 

his partner onto Facebook was an aggravating factor necessitating a more 

severe sentence. Although the court recognized that the man quickly 

removed the video when contacted by police, Judge Robertson remarked: 

In addition to the deterrence to the accused, this offence is one where general 

deterrence plays an enhanced role. With the proliferation of social networking 

sites, the opportunity to misuse such sites is significant and with devastating 

results to the victims; many of the impacts are significant and long lasting. This is 

144 

Re F(J), 2010 CarswellOnt 8100; Re F(K), 2010 CarswellOnt 7835 (WL Can) (ON 

CCB). 

145 

Re F(K), ibid; Re F(J), ibid; Re H(T), 2010 CarswellOnt 9036 (WL Can) (ON CCB). 

146 

Clear v Superior Court, 2010 WL 2029016 (Cal App 4 Dist). 

147 

AB v Bragg Communications Inc, 2010 NSSC 215, 293 NSR (2d) 222 [AB]. See section 

V(I)(1) of this paper, infra. 

148 

S(MC), supra note 100. 

149 

R v Desilva, 2011 ONCJ 133 (available on WL Can).


one of those rare cases where general deterrence may actually play an enhanced 

and meaningful role in sentencing. 150 

In sexual solicitation cases, the courts have been equally ready to 

condemn deviant social networking behaviour. In R v H (JJ), 151 the judge 

harshly scolded a 23-year-old man whose Facebook conversation with his 

14-year-old foster sister indicated an intention to meet for sexual 

intercourse. While the accused contended he was not planning to follow 

through on their illicit chats, the sentencing judge remarked that, “While 

J.J.H. was not trolling the net, he utilized the net like a dog with a bone 

once the opportunity presented itself.” 152 

Social networking evidence can play a role in determining whether a 

convict is obeying the terms of their probation. One of the primary roles 

of sentencing is to assist in rehabilitating the offender. For instance, 

ordering a sex offender not to access the internet or to refrain from using 

social networks are often mandatory conditions of their release. A 

probation officer may choose to monitor Facebook or other social 

networks to ensure their clients are not violating their conditions. 153 This 

may involve looking at known associates’ friend lists in case a parolee 

creates an account under a different last name or an alias. 

Of course, not all criminals are that savvy. In Hawkins v State, 154 a man 

convicted of indecency with a child was placed on deferred adjudication 

for eight years in which he was forbidden from using the internet. He was 

caught breaching his conditions and his probation was revoked after he 

contacted his probation supervisor on Facebook. 

Individuals with alcohol bans and driving prohibitions who maintain 

a social networking account put themselves at risk if they post 

incriminating pictures of themselves online. In revoking probation for a 

woman convicted of killing a passenger in a drunk driving accident, a 

Connecticut court reviewed evidence taken from her social networking 

account. While her initial parole violation was driving without a license, 

150 


151 

R v H(JJ), 2011 PESC 8, 308 Nfld & PEIR 252. 

152 

Ibid at 35. 

153 

See e.g. In re Ronald A, 2010 WL 445468 (Ariz App Div 1) where a probationary 

officer discovered the creation of a Facebook page contrary to probationary orders. 

154 

Hawkins v State, 2011 WL 168603 (Tex App-Dallas).


the court allowed the prosecution to admit photographs of the woman 

drinking and attending parties to demonstrate that: 

the beneficial aspects of probation were not being served because the defendant 

was engaging in many of the same activities post-incarceration as she engaged in 

before being incarcerated. 155 

In another case, a man’s parole was revoked when Facebook pictures 

of him drinking and smoking marijuana were used to demonstrate that he 

broke the strict terms of his vehicular manslaughter probation. 156 The 

court found that while a high evidentiary standard may still be needed to 

prove a breach of conditions, once a breach has been proven the state only 

needed to show “some indicia of reliability to support its claims.” 157 

When composing sentences or no-contact orders, courts should be 

mindful of the exact terms of the order. While it is common for a court to 

order a person convicted of a crime to avoid contact with the victim, a 

court may also need to determine whether it is necessary to broaden the 

scope of the order. In People v Wente, 158 a court found that a man 

contacting his ex-wife’s friends through Facebook did not breach his “no 

contact” order, as the terms were not specific. The court recognized the 

need to be very clear when drafting orders in the age of social networks: 

“Changes in technology, including the way people communicate, continue 

to present unique challenges to the courts.” 159 

F. Social Networking and Juries 

Ensuring a fair and balanced trial requires the screening of evidence 

for possible prejudice before its presentation to the jury. However, it is 

equally important that jury members themselves do not use social 

networks in a way that creates a perception of unfairness. In Canada, the 

courts have found the presence of social networks on their own does not 

necessarily infer a jury will be prejudicial. In R v Maguire, 160 Coughlan J 

rejected the defence’s request to have a first-degree murder trial conducted 

155 

State v Altajir, 2 A (3d) 1024at 684 (Conn App 2010); aff’d by 33 A (3d) 193 (Conn 

2012) [Altajir]. 

156 

People v Gittens, 2010 WL 3246177 (Cal App 2 Dist) (unpublished). 

157 

Altajir, supra note 155 at 689. 

158 

People v Welte, 920 NYS (2d) 627 (NY Just Ct 2011). 

159 

Ibid at 629. 

160 

R v Maguire, 2010 NSSC 200, 293 NSR (2d) 33.


by judge alone based solely on fears of jury prejudice because of the 

proliferation of online discussion. Even though there were a number of 

Facebook groups and online forums set up to discuss the alleged murder, 

the judge found that the presence of social networking groups “[did] not 

show a general prejudicial attitude in the community as a whole so as to 

justify a change in venue.” 161 However, the judge did recognize that it was 

a potential issue to address during the jury selection process. 162 

Additionally, there have been cases where jurors have been caught 

abusing social networks. Whether the breach is serious depends on the 

circumstance. A West Virginia police officer accused of financial 

improprieties had his conviction overturned when it became known that a 

juror had added him as a friend. 163 A civil trial verdict was overturned 

when it was discovered that the head juror’s Facebook account mentioned 

that he was a relative of a former employee of one of the parties. 164 

However, in People v Rios, a judge refused to order a mistrial based solely 

on a juror sending a friend request to a witness, particularly since the 

witness did not accept the request. 165 Another court rejected an appeal of a 

murder conviction which was based on a juror mentioning online that 

they had been selected for jury duty without discussing the case. 166 

V. CIVIL PROCEEDINGS 

The focus in civil proceedings is on understanding the consequence of 

relationships between individuals or entities, rather than expressly proving 

wrongdoing. Courts often have to resolve conflicts regarding what 

information should be disclosed and what should remain private. Once 

both sides have the evidence, the court then determines whether an injury 

occurred and what the appropriate damages should be. Consequently, in 

civil trials, issues regarding social networking evidence usually involve 

determining relevancy and discoverability. 

161 


162 


163 

State v Dellinger, 225 WVa 736, 696 SE (2d) 38, 2010 WL 2243511 (W Va). 

164 

AG Equipment Co v AIG Life, 2011 WL 888266 (N DA). 

165 

People v Rios, 26 Misc (3d) 1225(A) (NY Sup 2010). 

166 

State v White, 2011-Ohio-2364, 2011 WL 1988324 (Ohio App. 10 Dist 2011).


The relevance of social networking evidence in the context of a civil 

proceeding depends on the issues in dispute. In cases of defamation, the 

challenge with social media is often uncovering anonymous individuals 

hiding behind fake profiles. In personal injury cases, courts ensure a 

plaintiff has provided the defendant with photographs or posts that may 

demonstrate the seriousness of their injuries or validity of their claims. In 

family law, participants may not have the same need to uncover 

incriminating hidden social network evidence as in litigation, but social 

networking content surfaces particularly in child custody cases, as online 

activity may relate to a parent’s ability to raise children. In bankruptcy 

proceedings or disputes over income, photographs may have relevance in 

the ability to finance a lifestyle and may work adversely to claims of 

financial hardship. Additionally, courts are increasingly conducting 

administrative reviews to determine whether social networking content 

posted outside of school or work is grounds for censure. 

For the most part, traditional civil laws of discovery apply and social 

networking profiles and other electronic evidence are treated like any 

other document: 

The pages of a social networking site, including a Facebook page, is a document 

for the purpose of discovery and should be listed in a party's affidavit of 

documents, if relevant ("relating to any matter in issue"). 167 

Legislative or statutory frameworks that apply to social networking can 

affect what evidence is discoverable in civil trials. How various courts have 

applied each province’s discovery rules to social networking evidence will 

be discussed below. 

A. Legislative Frameworks 

Generally, there is a statutory requirement of voluntary disclosure of 

any document relevant to the proceedings. There is often a great deal of 

judicial discretion when voluntary compliance is not forthcoming, or 

where there are disputes over relevancy. Most provinces have broad 

discovery obligations. For example, Manitoba’s Court of Queen’s Bench 

Rules 168 require: 

167 

Ottenhof v Ross, 2011 ONSC 1430 at para 3 (available on WL Can) [Ottenhoff]. 

168 

Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88[MBQB Rules].


30.02(1) Every relevant document in an action that is or has been in the 

possession, control or power of a party to the action shall be disclosed as 

provided in this Rule, whether or not privilege is claimed in respect of the 

document. 

It provides a broad remedy if a party fails to disclose a potentially 

detrimental document: 

30.08(1) b. if the document is not favourable to the party's case, the court may 

make such order as is just. 

Under certain circumstances, courts could also resort to interim 

preservation order rules that authorize individuals to enter property to 

obtain evidence. 169 

Ontario has a similar statutory requirement in the Rules of Civil 

Procedure, 170 which do not differentiate between regular discovery 

procedures and those related to social media. There are separate rules, 

however, for other types of electronic discovery. Rule 29.1.03(4) 171 does 

require certain parties to consult with the “Sedona Canada Principle 

Addressing Electronic Discovery” before preparing a discovery plan. 172 

However, these guidelines are more appropriate to commercial litigation 

where one party may be disclosing thousands of pages of documents, and 

do not provide guidance to the evidentiary considerations relevant to 

social networks. Some have argued that by applying traditional electronic 

discovery rules (such as those in commercial litigation), the courts have 

ignored the strong privacy implications of social network evidence. 173 

169 

Schuster v Royal & Sun Alliance Insurance Co of Canada (2009), 78 CCLI (4th) 216, 83 

CPC (6th) 365 at para 39. (ON Sup Ct J) [Schuster]. Price J discusses the use of courts 

authorizing entry to social networking accounts, although he rejects it as requiring a 

higher degree of proof. 

170 

Ontario, Rules of Civil Procedure, RRO 1990, Reg 194. 

171 

Ibid, s 29.1.03(4). Manitoba has also referred to them in their practice directive. See 

“Guidelines Regarding Discovery of Electronic Evidence” (June 2011) online: 

. 

172 

Sedona Canada, “The Sedona Canada Principles: Addressing Electronic Discovery” 

(The Sedona Conference, 2008), online: http://www.thesedonaconference.org/ 

dltForm?did=canada_pincpls_FINAL_108.pdf. The Sedona Canada Principle is a 

framework for managing costs and timeframes in larger electronic discovery, especially 

for dealing with large discovery requests beyond the scope of those handled in a 

typical case involving social network evidence. 

173 

Andrew C Payne, “Twitigation: Old Rules in a New World” (2010) 49 Washburn LJ 

841 at 865.


British Columbia’s statutes similarly require a broad disclosure of 

documents in its Supreme Court Civil Rules, 174 although it did not 

significantly change the rules for electronically stored information when it 

updated its civil rules in 2010. The court has released a general practice 

direction to deal with electronic documents geared for larger corporate 

suits. 175 The rule for electronically stored information provides a broad 

disclosure requirement, while providing the court with the ability to screen 

any contentious documents for privilege: 

Rule 7-1 .(20) If, on an application for production of a document, production is 

objected to on the grounds of privilege, the court may inspect the document for 

the purpose of deciding the validity of the objection. 

BC’s rules also provide a broad judicial discretion to order documents, 

which would include social networking materials, to be available for 

copying for the opposing party: 

Rule 7-1 (17) The court may order the production of a document for inspection 

and copying by any party or by the court at a time and place and in the manner it 

considers appropriate. 

Nova Scotia, on the other hand, has completely rewritten their civil 

procedure rules, extensively codifying electronic discovery under Rule 

16. 176 These rules cover in depth the need to preserve relevant evidence 

including externally hosted database systems that would be applicable to 

social networking: 

Rule 16.02 (2) A party who becomes aware that a proceeding is to be defended or 

contested, must take measures to preserve relevant electronic information that is 

of one of the following kinds: 

(a) it is readily identifiable in a computer, or on a storage medium, the party 

actually possesses; 

(b) it is accessible by the party to the exclusion of another party, such as 

information in a database the party accesses by password on a computer the party 

does not actually possess. 

174 

British Columbia, Supreme Court Civil Rules, BC Reg 168/2009, r 7-1. 

175 

British Columbia, The Supreme Court of British Columbia, Practice Direction Re: 

Electronic Evidence, online: . 

176 

Nova Scotia, Civil Procedure Rules, NS Reg 370/2008, r 16.


Nova Scotia’s civil rules also provide judges with guidance on how to 

deal with a party’s failure to disclose documents and enumerate situations 

where judges may subsequently order disclosure: 

Rule 14.13(3) –A judge who orders a person to provide access to an original 

source of relevant electronic information may include in the order terms under 

which the access is to be exercised, including terms on any of the following: 

(a) a requirement that a person assist the party in obtaining temporary access to 

the source; 

(b) permission for a person to take temporary control of a computer, part of a 

computer, or a storage medium; 

(c) appointment of an independent person to exercise the access; 

(d) appointment of a lawyer to advise the independent person and supervise the 

access; 

(e) payment of the independent person and the person’s lawyer; 

(f) protection of privileged information that may be found when the access is 

exercised; 

(g) protection of the privacy of irrelevant information that may be found when 

the access is exercised; 

(h) identification and disclosure of relevant information, or information that 

could lead to relevant information; 

(i) reporting to the other party on relevant electronic information found 

during the access. 

Although the changes do not necessarily provide greater access to 

social networking information, they provide clarity for courts in issuing 

orders and recognize the unique challenges of social networks and other 

electronic evidence. Of particular importance is the reference to using 

independent third parties to supervise access and taking appropriate steps 

to protect the privacy of irrelevant information. 

Most of the cases discussed below focus on the nature of discoverable 

evidence. Courts have generally ruled that the truth seeking process 

subverts privacy and the expectation of privacy. Additionally, as social 

network evidence becomes more common in court, formalized court rules 

provide greater certainty for litigants (particularly in non-commercial 

litigation) about what they may expect in the discovery process. 

B. Relevance and Discoverability 

In a contract dispute, a party may be under an obligation to disclose 

emails between internal sources leading to the formation of a contract. In 

an employment dispute, social networking material is generally only 

relevant if it materially affects an individual’s ability to perform their job. 

In many types of disputes, such as family law or employment law, only


publicly available social networking material may be relevant, and an 

extensive discovery process may not be required. However, where litigation 

surrounds a physical injury or a claim relating to emotional well-being, 

material that may be somewhat private, such as photographs or status 

updates, may become relevant and come under a statutory duty of 

disclosure. For instance, the court in Sparks v Dubé, considered 

photographs on a zip-line relevant because the plaintiff claimed she 

suffered ongoing “serious impairment”. 177 

Although there is a general duty to disclose the existence of a wide 

range of potential material, a party only needs to produce photographs or 

posts that are relevant to a trial rather than their entire account. Typically, 

this requires one side to declare what they believe to be potentially 

relevant material. At an early stage, there may be disagreements between 

the sides over disclosure. For example, in Anderson v 45859 Ontario Ltd, 

the court ordered a plaintiff, injured after being kicked by a horse, to 

provide a list of all photographs on her Facebook site along with the 

names of people who appeared in her pictures to determine potential 

relevancy. 178 She claimed that she posted only baby pictures on her private 

site, not relevant to her injuries 

The leading authority on what is discoverable in Canada, referenced 

both in Canadian and American cases, is Leduc v Roman. 179 The plaintiff 

had been injured in a car accident and claimed his enjoyment of life was 

lessened and that he faced severe limitations on his personal life. The 

defendant requested access to the private areas of the plaintiff’s Facebook 

account, believing that relevant pictures demonstrating the true extent of 

the plaintiff’s injuries would be uncovered. The court made some key 

findings. First, any material on a social networking account is potentially 

discoverable as they are documents within the control of the plaintiff. 180 

Secondly, the plaintiff has “an obligation to produce all relevant 

documents in his possession, including any information posted on his 

177 

Sparks, supra note 2 at para 3. 

178 

Anderson v 45859 Ontario Ltd., 2010 ONSC 6585. 

179 

Leduc v Roman, 308 DLR (4th) 353, 2009 CarswellOnt 843 (available on WL Can) 

(Ont CA) [Leduc]. 

180 

Ibid at para 8.


private Facebook profile demonstrating activities and enjoyment of life, 

even if it is contrary to his interests in this action.” 181 

Notably, Leduc opened information on a social network to potential 

discovery regardless of privacy settings. The court adopted the view that 

there is no reasonable expectation of privacy, unlike a private diary, when 

one posts to a website whose purpose is to share photographs and status 

updates. While Facebook and many social networks allow individuals to 

hide content from the general public, the court refused to designate user 

chosen privacy settings as equivalent to legal privilege: 

To permit a party claiming very substantial damages for loss of enjoyment of life 

to hide behind self-set privacy controls on a website, the primary purpose of 

which is to enable people to share information about how they lead their social 

lives, risks depriving the opposite party of access to material that may be relevant 

to ensuring a fair trial. 182 

A difficulty in many cases is that the sides may not agree on what 

material is relevant to a particular claim. Social networks such as Facebook 

allow users to post information in a private area because users have 

legitimate reasons to restrict who can view what information. While Leduc 

made it clear that there is no absolute right to privacy in regards to social 

networking content, there is also no obligation for a party to turn over 

intimate photographs or embarrassing personal messages to opposing 

counsel if they are not relevant to the suit. 183 

In Carter v Connors, 184 Ferguson J conducted a broad survey of general 

evidentiary rules regarding relevancy. The court concluded that all 

evidence that could be logically relevant to a fact would be admissible 

unless it was precluded, either by an existing rule or because it was far too 

prejudicial. Applying this to social networks, the court concluded that the 

threshold was low and that: 

…the success of an application to retrieve an individual's electronic computer 

data principally depends upon the degree of intrusion into the private lifestyle 

choices and electronic activity of the Internet user as well as the probative values 

of the information sought. 185 

181 


182 


183 


184 

Carter v Connors, 2009 NBQB 317, 355 NBR (2d) 235. 

185 

Ibid at para 36.


An item is relevant at the discovery stage even if on its own it is not 

particularly conclusive, but it has a semblance of relevance that could 

possibly lead to a further inquiry or “the answer may lead to the discovery 

of admissible evidence.” 186 The court found exceptions might exist for 

material that involves third party privacy (such as chat messages 

received), 187 or material that may reveal “intimate details of the lifestyle 

and personal choices of the individual” and has otherwise limited 

relevance to key issues. 188 Plaintiffs are much more vulnerable to broad 

discovery obligations. Carter found that by initiating a lawsuit, the plaintiff 

“implicitly accepted certain intrusions into what otherwise might be 

private information the disclosure of which would ordinarily be left to her 

own personal judgment.” 189 While the plaintiff may accept certain 

intrusions, these must be predicated by evidence. Furthermore, the court 

retains a degree of discretion. In Bishop, 190 the court found it could reject 

overly broad requests with unknown relevance or requests where there was 

little probative value and which raised confidentiality issues. 

As in Leduc, where physical injuries have occurred and a plaintiff 

claims they are unable to enjoy life or work, photographs on a social 

network may have a high degree of relevance. The broader the claim for 

damages, the more likely the material will be considered relevant. In 

Murphy v Perger, 191 the plaintiff claimed that she was not able to engage in 

sports and could no longer enjoy life. The court found that photographs 

in a private area of Facebook could be relevant not only for assessing the 

credibility of the claim but also in determining damages. In Leduc, 192 the 

court likewise found that photographs found in a private area would likely 

be relevant to the plaintiff’s claims of loss of enjoyment of life, as they 

would demonstrate how he lived his life since the accident. 

American courts have taken a similar approach. A New York court in 

Romano v Steelcase, 193 an action concerning injuries that occurred when a 

186 


187 

Ibid at para 37. Contra Frangione, infra note 198 which felt that even third parties to a 

suit sacrificed their expectation of privacy on a social network. 

188 


189 


190 

Bishop v Minichiello, 2009 BCSC 358 at para 47, 8 WWR 307 [Bishop]. 

191 

Murphy v Perger, 67 CPC (6th) 245 (available on WL Can). 

192 

Leduc, supra note 179. 

193 

Romano v Steelcase Inc, 907 NYS (2d) 650 (NY Sup 2010) [Romano].


woman fell out of an office chair, found that photos on her MySpace and 

Facebook accounts could be relevant to her claims that she suffered 

permanent injuries and was confined to her bed. The court allowed 

extensive discovery, in particular because her Facebook profile appeared to 

show her smiling outside her house and mentioned that she had travelled 

out of state. The court found “[p]laintiffs who place their physical 

condition in controversy, may not shield from disclosure material which is 

necessary to the defence of the action.” 194 

Where a plaintiff claims severe emotional distress or post-traumatic 

stress, American courts have been willing to allow the defence access to 

private communications and posts on social networks, as they may be 

relevant to the plaintiff’s emotional state. In EEOC v Simply Storage 

Management, 195 two plaintiffs sued a former employer for emotional pain 

and suffering and loss of enjoyment of life after alleged sexual harassment 

by a supervisor. The court ordered the plaintiff to turn over information 

relevant to their emotional claims as well as possible alternative 

explanations for their suffering. This included any posts, pictures, groups 

joined, or applications “that reveal, refer, or relate to any emotion, feeling, 

or mental state, as well as communications that reveal, refer, or relate to 

events that could reasonably be expected to produce a significant emotion, 

feeling, or mental state.” 196 The court limited disclosure of 

communications with third parties to those necessary to provide context to 

issues of emotion, and did not require disclosure of pictures posted by 

others. The court limited the precedent set by stating that such discovery 

obligations were only relevant to claims that went beyond “garden variety 

emotional distress”. 197 

When a plaintiff claims that they permanently cannot work or have 

some form of brain injury from an accident, a court may hold that their 

entire account, including private communications, may be relevant to the 

validity of the claim and their capacity to communicate. In Wice v 

Dominion of Canada General Insurance Co, 198 the court determined that any 

194 

Ibid at 5. 

195 

EEOC v Simply Storage Management 270 FRD 430 (SD Ind 2010). 

196 

Ibid at 9. 

197 

Ibid at 12. 

198 

Wice v Dominion of Canada General Insurance Co, 75 CCLI (4th) 265 (available on WL 

Can).


social networking material could be relevant to whether the plaintiff 

needed the services of a personal assistant due to alleged brain damage and 

ordered the plaintiff to preserve everything in his account. In Frangione, 199 

the plaintiff’s claim of a catastrophic brain injury resulted in the master 

ordering the plaintiff’s entire profile, including private messages, to be 

disclosed. The messages were determined relevant in showing how the 

plaintiff, who claimed he could only focus for a few minutes at a time, had 

lived his life since the accident. However, the master did not distinguish 

between personal communications such as messages, and private posts 

shared to a larger circle of friends when rejecting the plaintiff’s concerns 

over privacy. Other courts, such as Carter 200 and Bishop, 201 have taken a 

different approach. Instead of turning over personal communications to 

determine usage, they ordered production of either computer logs or those 

logs maintained by the internet service provider. 

C. Court-Ordered Disclosure 

As discussed earlier, American federal law prevents social networks 

from releasing user’s content to non-governmental entities without the 

consent of the account holder. In a civil action, the burden falls upon the 

parties to an action to uphold various duties to preserve their social 

networking accounts, to disclose documents and other evidence, and to 

permit the other party to inspect relevant material. In the age of social 

media, at least one court has made it clear that lawyers are legally obliged 

to alert their clients to the admissibility of evidence: “[it is] incumbent on 

a party's counsel to explain to the client, in appropriate cases, that 

documents posted on the party's Facebook profile may be relevant to 

allegations made in the pleadings.” 202 Ideally, the parties will voluntarily 

deliver all potentially relevant material including pictures and posts from 

their social networking accounts. However, concerns over privacy and 

relevancy as well as animosity between the parties often make courtmandated 

disclosure necessary. 

In Leduc, the court acknowledged that it was the plaintiff’s obligation 

to disclose information. However, the defendant could request court 

199 

Frangione v Vandongen, 2010 ONSC 2823 (available on WL Can) [Frangione]. 

200 

Carter, supra note 184 at 38. 

201 

Bishop, supra note 190. 

202 

Leduc, supra note 179 at para 28.


oversight if they did not feel the disclosure was forthright or contained all 

relevant material. 203 The judge found two possible ways to infer whether 

hidden material may exist. First, the court could consider account specific 

information such as public profile pictures and privacy settings. 204 

Additionally, the court could: 

infer from the social networking purpose of Facebook, and the applications it 

offers to users such as the posting of photographs, that users intend to take 

advantage of Facebook's applications to make personal information available to 

others. 205 

Not all claims result in the same inferences. In Schuster v Royal & Sun 

Alliance, 206 the court declined a discovery request based on the mere 

existence of a plaintiff’s Facebook account because no relevant material 

existed on the publicly listed profile. 

In both Canada and the US, courts have exercised their discretion in a 

variety of ways. In some cases, the judge has sanctioned failure to disclose 

relevant material by forcing unfettered production of an entire account. In 

Bass v Miss Porter’s School, 207 a Connecticut court presided over a case in 

which the plaintiff claimed intentional infliction of emotional distress 

after being expelled from school. After the defendant complained that the 

plaintiff was not disclosing all posts related to their emotional state of 

mind following the expulsion, the judge undertook a sample comparison 

between the plaintiff’s entire Facebook account and what information had 

been disclosed. The court ordered the plaintiffs to hand over the entire 

contents of their account to the defendants after finding their voluntary 

disclosure to be insufficient. In Frangione v Vandongen, 208 an Ontario 

master ordered a plaintiff who claimed he could only sit for 20 minutes at 

a time to turn over private communications such as messages and chat 

transcripts in addition to photographs and posts. 

Some states have extremely broad disclosure rules that require almost 

all material, even if only peripherally related to the case, be disclosed. 209 In 

203 


204 


205 


206 

Schuster, supra note 169 at para 39. 

207 

Bass ex rel Bass v Miss Porter's School, 2009 WL 3724968 (D Conn). 

208 

Frangione, supra note 198. 

209 

See Pennsylvania, Pennsylvania Rules of Civil Procedure, Pa RCP No at r 4003.1. This


McMillen v Hummingbird Speedway, Inc, 210 a Pennsylvania court rejected any 

notion of privacy or confidentiality concluding that, since Facebook and 

MySpace’s privacy policies indicate that a site operator might require 

access to a person’s account, there was never a reasonable expectation of 

privacy. In Romano v Steelcase, 211 a New York court ordered the plaintiff to 

sign a consent form authorizing MySpace and Facebook to release 

personal information from the plaintiff’s social networking account. 

Conversely, in Canada, the judge in Ottenhof v Ross recognized that a 

request for a password and intensive access to an account would likely be 

“overly intrusive unless the party is claiming as part of his or her damages 

claim a level of disability that inhibits his or her computer time.” 212 

In some cases, courts have sought methods outside of the traditional 

scope of discovery to verify disclosure. In Barnes v CUS Nashville LLC, 213 

frustrated with the parties’ inability to determine relevant material 

voluntarily, the judge offered to “friend” the plaintiff and review posts and 

pictures. In Lodge v Fitzgibbon, 214 a New Brunswick court ordered the 

plaintiff’s attorney in a medical malpractice suit to let the defendant’s 

attorney view the plaintiff’s Facebook account at the plaintiff’s counsel’s 

office to screen for potentially relevant material. Furthermore, some 

American courts have taken a ‘hand-over-the-keys’ approach. They have 

ordered one side to turn over passwords to their accounts or sign a 

consent form authorizing a social network such as Facebook or MySpace 

to provide as much information as possible. Usually this is a last resort 

after it becomes apparent that a plaintiff may be exaggerating a claim or 

injury. 

Lastly, computer logs may be requested where the fundamental issue 

in a case requires information on a party’s computer usage. In Bishop v 

Minichiello, 215 the plaintiff claimed he was suffering from fatigue because of 

rule allows discovery of material related to peripheral materials such as potential 

witnesses. 

210 

McMillen v Hummingbird Speedway, Inc, No 113-2010 CD, (Pa CP Jefferson 2010) 

online: . 

211 

Romano, supra note 193. 

212 

Ottenhof, supra note 167 at para 3. 

213 

Barnes v CUS Nashville, LLC, 2010 WL 2265668 (MD Tenn). 

214 

Lodge v Fitzgibbon, 2009 NBQB 332, 352 NBR (2d) 225. 

215 

Bishop, supra note 190.


an accident. The defendant claimed the plaintiff’s fatigue was a result of 

late night usage of Facebook, rather than lingering effects from the 

accident. The court ordered the plaintiff to turn over his hard drive to a 

third party expert who would produce logs indicating how long and at 

what times the plaintiff used his computer. The court found that the logs 

could provide the relevant information without disclosing the content of 

message or posts. 

D. Preserving and Producing Social Networking Evidence 

Each party in litigation has a duty to preserve and disclose relevant 

material once there is a reasonable prospect that there will be legal 

proceedings. Unless a litigant has a reason to suspect their adversary is 

failing to disclose all of the relevant material or is not preserving evidence, 

then the discovery process can proceed with minimal court oversight. 

Commencement of litigation triggers the duty to preserve potentially 

relevant material, including a social networking account. In Ottenhof v 

Ross, the court made it clear that the plaintiff was required to preserve his 

Facebook page “in the same way that any litigant is required to preserve 

potentially relevant documentation”, 216 and outlined the proper way to 

conduct disclosure: 

The pages at a social networking site or internet site including a Facebook page is 

a document for the purpose of discovery and should be listed in a party’s 

affidavit of documents, if relevant (“relating to any matter in issue”). The mere 

existence of a Facebook account is insufficient to require its production on 

discovery. Whether it is listed in the affidavit of documents or not, the 

responding party is entitled to cross-examine on the affidavit of documents to 

determine firstly if it exists, secondly the relevance of the contents, and finally 

production of the relevant portions for which privilege is not claimed. 217 

It may not be necessary to hand over the entire account to the 

opposing party; archiving an account and providing an itemized list of 

photos and potentially relevant messages or statuses may be sufficient. To 

facilitate this process, sides may choose to agree in advance on a period of 

updates or photographs potentially relevant to the process. Lawyers 

seeking to assist their clients in preserving material, or who wish to capture 

material from an adversary’s account, can manually review relevant 

216 

Ottenhof, supra note 167 at para 3. 

217 

Ibid.


material or use preservation tools, both freely and commercially 

available. 218 While some courts may admit screenshots or even printouts, it 

is far more reliable to capture original sources or generate a time stamped 

archive. 

Furthermore, changes in technology may provide an alternative to the 

“hand over the keys” approach when a court wishes to order full 

production of information. In the fall of 2010, Facebook introduced a 

feature that allows any user to archive and export their entire account into 

a handy backup in which all photographs, posts, and messages are saved. 219 

An order to export such an archive would in many cases be a more direct 

and efficient approach than one requiring a party to hand over passwords 

and account information to the court or opposing party. 

E. Ex Parte Motions and Adverse Inferences 

Courts are recognizing the challenge of preserving social networking 

evidence, since accounts are easily closed and photographs or statuses 

permanently deleted. As a result, they are beginning to grant motions 

designed to preserve information or impose adverse consequences on 

parties who appear to be deleting relevant information. For example, in 

Terry v Mullowney, the court drew an adverse inference against a plaintiff in 

a personal injury lawsuit after he shut down his Facebook account midlitigation, 

concluding he had likely posted incriminating evidence 

undermining his claim before deleting the account. 220 

The trend moving forward in e-discovery may be the use of ex parte 

motions prior to discovery. While parties have a general obligation to 

218 

There are a variety of ways that both social networking sites and the private sector 

provide solutions to discovery requirements. For example, Facebook has an archive 

function that allows a user to down load a copy of their entire profile. Companies 

such as Hanzo Archives , have software capable of backing up Facebook, Twitter, Linked and 

YouTube media. They also have useful tools for companies to integrate with 

enterprise backup solutions for automating preservation of content. There are other 

tools that exist for those looking to capture posts by other users. Some browsers, such 

as Apple’s Safari, allow users to save a webpage as a template and similar add-ons are 

available for Mozilla’s Firefox. 

219 

Craig Ball, “Facebook Feature Could Ease Cloud-Based EDD” (23 February 2011), 

online: Law Technology News . 

220 

Terry v Mullowney, 2009 NLTD 56, 285 Nfld & PEIR 19.


preserve relevant documents once litigation has begun, an ex-parte motion 

may pre-empt a party’s deletion of damaging information. 221 In Sparks v 

Dubé, 222 the defendant became aware that the plaintiff had a Facebook 

account. On the account were publicly accessible photographs of her 

participating in a zip-line course, shopping, and relaxing on a beach, 

appearing to contradict her claims that she was seriously injured. The 

court noted that it was very simple and quick for a party to delete relevant 

material once the plaintiff became aware of its potential impact on their 

claim, and that this fear had played out in the past: 

Weighing in favour of the hearing being held ex parte is the real and legitimate 

concern that any data that might be deleted from her Profile in violation of a 

Preservation Order made if both parties were present for this motion, would very 

likely be impossible to resurrect after the fact. 223 

The court attempted to set a balance between privacy and the need to 

preserve evidence. The court allowed the ex parte motion to supervise 

discovery of the Facebook account because public photographs posted 

after the accident were relevant to determining the plaintiff’s injuries and 

it was likely that more material was available in hidden areas. However, the 

court denied the ex-parte order for access to the plaintiff’s YouTube, 

Twitter and LinkedIn accounts, as there was no evidence they contained 

relevant material. 

In granting the motion, the court engaged in a multi-step process. 

First, the moving party was required to show the social networking 

account sought is under the other side’s control and the content passes a 

“semblance of relevance” test. 224 Second, the court allowed the defendants 

to deliver an order to the plaintiff’s attorneys requiring them to appoint 

either another lawyer from their firm, or an independent agent to oversee 

the process. Additionally, the court issued a temporary interlocutory 

injunction restraining the plaintiff from deleting material. Next, the 

plaintiff downloaded and preserved the material in the presence of the 

third party, who would supervise the process, record the times and verify 

221 

Usually only granted in cases where advance notice might cause irreversible harm, in 

an ex-parte motion one side requests a court order without alerting the other side. 

222 

Sparks, supra note 2. 

223 


224 

Ibid at para 51.


that the entire material was saved. 225 Last, confident that a backup of the 

material had been made, the court ordered the plaintiff to ensure all 

photographs or potentially relevant material were disclosed on her list of 

documents for future inspection. 226 

Nevertheless, despite this decision, not all hearings may permit 

discovery requests to uncover hidden content. While essentially all 

jurisdictions have civil rules allowing discovery in litigation, some 

provinces have statutory arbitration hearings to reduce litigation costs in 

certain proceedings such as automobile claims. In Prete v State Farm Mutual 

Automobile Co, 227 the Financial Services Commission of Ontario rejected a 

request by an insurance company to force a claimant to disclose 

information from his social network. 

As well, the nature of social networking forums make the requirement to disclose 

images on such forums procedurally burdensome in the context of an 

administrative law tribunal. Active participants in these sites post and remove 

images frequently. The images do not necessarily have the date upon which they 

were created. It is not uncommon for adults to post their baby pictures. This 

practice exemplifies the reality that an image may be posted on a date relevant to 

the claim but was not created at a relevant time. It would be a procedural 

quagmire to set guidelines for the preservation and production of these images in 

a manner that would render them reliable evidence in a process that is required 

to provide a speedy, accessible and fair process for dealing with disputes relating 

to the Schedule. 228 

F. Denial of Discovery Requests 

Any attempt to request discovery of information from a social 

networking profile should begin with a factual basis. The party requesting 

the information should clearly explain how the evidence requested would 

be relevant to the case. Requests for discovery of social networking 

material may be denied if done at a late stage in a trial, or if a party cannot 

demonstrate the relevance of the material sought. 229 While courts may be 

open to inference, an ex-parte application requires “evidence of irreparable 

harm must be clear and not speculative.” 230 American Courts have 

225 


226 


227 

Prete v State Farm Mutual Automobile Co, 2011 CarswellOnt 1019 (WL Can) (FSCO). 

228 


229 

See e.g. Schuster, supra note 169. 

230 

Ibid at para 27.


followed a similar test, denying discovery requests where a party has failed 

to establish a “factual predicate with respect to the relevancy of the 


The timing of discovery requests for social networking must generally 

happen early enough in the process to provide both sides ample time to 

gather evidence. A defendant cannot delay a discovery request in the hope 

that a plaintiff will continue to post incriminating social networking 

evidence. Unless a litigant can show that the evidence obtained 

demonstrates substantial or unexpected change in circumstances, courts 

are likely to deny late requests to access private material. As well, parties 

have an ongoing duty to disclose any relevant material they post after 

initial discovery that shows a change in circumstance. 232 Even where 

material may be otherwise admissible, the courts are most likely to limit 

discovery if it risks delaying the trial, especially if there is a failure at an 

initial discovery meeting to inquire about photographs or social 

networking material. 

In Kent v Laverdiere, the defendant had failed to ask the plaintiff about 

the existence of possible photographs. 233 Concerned that reopening 

discovery would risk delaying the trial, the master declined the request. 

However, the master did note that had the request come earlier, she would 

have likely allowed discovery for claims of loss of enjoyment of life as some 

pictures appeared to show the plaintiff smiling, which would have met the 

threshold for the semblance of relevance. Conversely, it would have 

denied discovery for claims such as loss of comfort, care or guidance made 

by the parents of the plaintiff since these could not be determined from 

the plaintiff’s Facebook account. 

G. Costs 

In civil cases, where a party seeks material with limited relevancy or 

fails to disclose relevant material they may also be liable for costs. In 

Schuster, the court warned the defendant that, “the party who has failed to 

comply with its obligations or who has asserted without justification that 

231 

McCann v Harleysville Ins Co of New York, 78 AD (3d) 1524 (NY AD 4 Dept 2010) at 

1525. 

232 

Kent v Laverdiere, 2009 CarswellOnt 1986 (WL Can) (Ont Master). 

233 

Ibid at para 34.


the other has failed to do so, will be accountable for the costs it has 

caused.” 234 

H. Authentication, Context, and Prejudice 

Social networking evidence in civil trials is far less likely to face a rigid 

admissibility test or the same evidentiary burdens that occur in a criminal 

trial. Prejudicial evidence may be more relevant to damages or the 

relationship between the parties than in a criminal context. Furthermore, 

there is less concern over authentication and the quality of evidence. 

Pictures or videos taken from a social networking site may be admitted, 

even if they are grainy or of poor quality. A federal court admitting 

YouTube videos in a royalty dispute commented: “The Court has viewed 

the videotapes and while not likely to win any award for cinematography, 

they may be no worse, for example, than the quality of some surveillance 

videos used in trials.” 235 

This does not mean that authentication and contextualization are 

unnecessary. Where one party attempts to introduce evidence they claim 

to have received from a social network, the courts may require them to 

disclose how they obtained the evidence and explain its relevance. In 

Knight v Barrett, 236 a New Brunswick court asked the party attempting to 

present evidence to annotate a Facebook printout and provide details on 

how they came to possess the printouts. A Kentucky court noted that in a 

civil trial, a photograph taken from Facebook did not require a high level 

of authentication as testimony describing the subject matter of the photo 

would suffice. 237 The court acknowledged that while photos can be faked 

or altered, it is up to the litigants themselves to challenge the evidence and 

put forward those allegations for consideration. 

Social networking evidence may be denied admittance if the only 

purpose is to challenge the credibility of a claimant or to put the litigant in 

an unflattering light and it is highly prejudicial. While this is a general 

evidentiary rule, it is especially important in social networking cases where 

profiles may contain highly embarrassing information that may be 

234 

Schuster, supra note 169 at para 48. 

235 

Society of Composers, Authors & Music Publishers of Canada v Maple Leaf Sports & 

Entertainment Ltd, 2010 FC 731 at para 31 (available on WL Can). 


Knight v Barrett, 2008 NBQB 8 at para 8, 331 NBR (2d) 199. 

237 

Lalonde v Lalonde, 2011 WL 832465 (Ky App).


unconnected to the litigation. In Kinlock v Edmonds, 238 a female youth sued 

a police officer who tethered her while in police custody. The court denied 

attempts to admit photos of the plaintiff using drugs obtained from her 

Facebook page, recognizing the defendant’s strategy of trying to portray 

the plaintiff in an unflattering light. On the other hand, had the case been 

a child custody dispute, drug use by one of the parties might have been 

highly relevant to their parenting ability. 

Courts should be careful when dealing with printouts or testimony 

from a social network. Material posted by a litigant must be differentiated 

from material that may be posted by an acquaintance or automatically 

generated by the system. While a photograph posted by a friend featuring 

a plaintiff or a defendant may have relevancy, most social networking sites 

allow friends to comment or leave posts on an individual’s page without 

approval. For example, in an employment law case, an Alberta court 

overturned an employee’s dismissal for allegedly making harassing 

comments. The court concluded that another individual without approval 

likely made the comments, and the mere presence of statements on the 

employee’s Facebook wall had no relevance to the employee’s ability to 

perform their job. 239 

At least one recent decision appears to show a judge misinterpreting 

how social networks function. In a child custody dispute, an Ontario judge 

criticized a father for uploading a video of his daughter to YouTube and 

juxtaposing it next to an unsavory video. 240 While the father’s decision to 

upload a video may have been questionable and relevant, many social 

networks such as YouTube or Facebook dynamically generate 

advertisements or related content, often based on the computer settings or 

search terms of the person viewing the pages. Courts should ensure that 

only pictures, video or posts are admitted as evidence and not peripheral 

advertising or related links. 

I. Use of Social Networking Evidence 

Social networking evidence has uses in a variety of different suits. 

238 

Kinloch (Guardian ad litem of) v Edmonds, 2008 BCSC 1684 (available on WL Can). 

239 

Alberta Distillers Ltd v UFCW, Local 1118, 2010 AWLD 1108, 2009 CarswellAlta 1467 

(WL Can). 

240 

Bekeschus v Doherty, 2011 ONCJ 232 at para 23 (available on WL Can) [Bekeschus].


1. Uncovering the Unknown Defendant: Defamation 

In most civil actions, the parties are known at the onset of an action; a 

plaintiff will know the identity of another driver in a collision or an exspouse 

in a family dispute. However, as the internet allows individuals to 

create a social networking account under a false name, it is easier for a 

person to post libellous content anonymously. In cases where a statement 

or post is clearly defamatory or a profile is clearly false, users may report 

the content and the company may voluntarily remove a post or block an 

account. In the US, social networks are protected from being held liable 

for content by the Common Decency Act, 241 which limits their duty to 

monitor content. 

When an individual decides that defamation made on a social 

network is sufficiently harmful to warrant litigation and the identity of the 

person uploading libel is not readily apparent, an individual may need to 

rely on a discovery process. The plaintiff would need to start an action and 

request a court order to obtain subscriber information and IP address 

from a social networking company. A second court order might then be 

required from a Canadian Internet Service in order for them to pair the IP 

address with a physical address. Handling cross border defamation cases 

can be costly, and will generally require legal resources in both 

jurisdictions to obtain the identity of an alleged defamer. In Canada and 

the US, the legal tests needed to uncloak an anonymous individual are 

similar; both set a high evidentiary threshold to prove that defamation has 

occurred. 

On the Canadian side, social networking companies and internet 

providers will generally require a production order before they will release 

any information. In AB v Bragg Communications, 242 a Nova Scotia court 

considered a defamation case in which a phony Facebook profile was 

created by an unknown perpetrator for the sole purpose of embarrassing 

the plaintiff. The court ruled that a production order would be issued only 

if there were no other means by which the plaintiff could obtain the 

information. The fact that the Facebook page was anonymous satisfied 

241 

US, Communications Decency Act of 1996, 47 USC § 230. Section 230(c)(1) provides 

immunity to providers of interactive computer services from materials posted by users 

of their site. 

242 

AB, supra note 147.


that requirement: 243 the court held that there is no general public interest 

in cloaking a defendant in anonymity for the purpose of libelling or 

destroying the reputation of another. 244 

To obtain the account information from Facebook or other social 

networks, a litigant will need to get their Canadian subpoena 

domesticated by an American court in the jurisdiction where the social 

network is located. A social network, upon receiving a subpoena, will 

notify a user of the request for their subscriber information. If a user 

wishes to quash the subpoena, they have the ability to challenge the 

production order. The court looks at whether a prima facie libel was 

established, and then considers whether the merits of potential public 

interest reasons for allowing a user to remain anonymous: “Requiring at 

least that much ensures that the plaintiff is not merely seeking to harass or 

embarrass the speaker or stifle legitimate criticism.” 245 The court may also 

look at whether an alleged defamation was likely to have caused harm, and 

whether there was actual libel. In Krinsky v Doe 6, the court quashed a 

subpoena when it did not find the comment to be truly defamatory. 246 

When it comes to social networking, courts are most likely to look at 

the entire context of a discussion to differentiate between crude comments 

and posts that may genuinely damage a reputation. In Finkel v Dauber, a 

court rejected a defamation suit in which outrageous statements were 

made about the plaintiff. 

While the posts display an utter lack of taste and propriety, they do not 

constitute statements of fact. An ordinary reader would not take them literally to 

conclude that any of these teenagers are having sex with wild or domestic animals 

or with male prostitutes dressed as firemen. The entire context and tone of the 

posts constitute evidence of adolescent insecurities and indulgences, and a vulgar 

attempt at humor. What they do not contain are statements of fact. 247 

Online defamation cases are growing, and the courts are probably wise 

to maintain a high threshold related to discovery and vicarious liability so 

as to avoid entangling themselves in petty disputes where the costs of 

litigating would be disproportionate to the actual damages of defamation. 

243 


244 

Ibid at para 20 (Referencing Warman v Wilkins-Fournier, 2010 ONSC 2126, 100 OR 

(3d) 648). 

245 

Krinsky v Doe 6, 159 Cal App (4th) 1154, (Cal App 6 Dist 2008) at 1171. 

246 

Ibid at 1180. 

247 

Finkel v Dauber, 906 NYS (2d) 697 at 703 (NY Sup 2010).


2. Personal Injury 

The most common use of social networking evidence in personal 

injury claims is the determination of damages, particularly the extent of 

injury and the amount of damages. Some cases involve plaintiffs seeking 

claims beyond statutory maximums or standardized insurance company 

payouts for general damages. The evidence may not eliminate all damages, 

as the courts are likely to issue general damages for pain and suffering, but 

may be used to demonstrate that a plaintiff’s ongoing claim is exaggerated. 

For example, a British Columbia court reduced the claim for future 

earnings loss of a 22-year-old who suffered a back injury, after discovering 

Facebook photos that showed her white water rafting, playing soccer and 

climbing. 248 Another court minimized damages to an accident victim who 

claimed she could no longer engage in activities after Facebook 

photographs appeared of her hiking and riding a bike, raising doubts 

about whether the injuries affected anything other than her ability to run 

long distances. 249 A court refused to issues further damages for a boy 

injured in three separate accidents after Facebook photos showed him 

playing football and other sports indicating his knee injuries had healed. 250 

An Ontario Court in Kourtesis v Joris 251 found that Facebook photos of the 

plaintiff celebrating and in social poses indicated that she still enjoyed life, 

and therefore was not eligible for increased benefits beyond those 

authorized under the province’s no-fault insurance scheme. Similarly, an 

Ontario judge limited damages to a girl who received a scar across her face 

in a car accident. The court found the injuries were not seriously 

interfering with her life as “she socializes, dates and has even gone to the 

extent of providing her picture on the computer program Facebook.” 252 In 

Tyrell v Bruce, 253 an Ontario judge rejected the plaintiff’s entire belated 

claim for severe injuries after the defendant uncovered evidence of the 

plaintiff dancing in a rap video. 

248 

Skusek v Horning, 2009 BCSC 893 (available on WL Can). 

249 

Bagasbas v Atwal, 2009 BCSC 512 at para 5 (available on WL Can). 

250 

MacIntyre (Litigation Guardian of) v Pitt Meadows Secondary School, 2010 BCSC 256 


251 

Kourtesis v Joris, 2007 CarswellOnt 4343 (WL Can) (ON Sup Ct J). 

252 

Goodridge (Litigation Guardian of) v King (2007), 161 ACWS (3d) 984 at para 128 

(available on WL Can) (Ont Sup Ct J). 

253 

Tyrell, supra note 21.


While there have been cases where social networking evidence 

undermines a plaintiff’s case, courts have recognized that they must be 

placed within the context of medical reports and other testimony. In 

Mayenburg v Lu, the court put little weight on the defence’s admission of 

photographs of the plaintiff hiking, dancing, and bending, noting that the 

plaintiff’s claimed not that she could not do these things, but that she 

would “feel the consequences afterwards”. 254 The court warned the 

defence against trying to create a “straw person who … cannot enjoy life at 

all.” 255 In Raun v Suran, the court held, despite admitting a video from 

Facebook that showed the plaintiff capable of athletic moves including 

jumping out of a pool, that the plaintiff still deserved “fair and reasonable 

amount for his pain and suffering and loss of enjoyment of life.” 256 

Furthermore, some courts have recognized that a plaintiff who 

presents a positive image on a social network may not be putting forward 

an image that genuinely reflects their suffering or their actual medical 

condition. In Cikojevik v Timm, 257 a BC court found that photographs of 

the plaintiff smiling and engaging in activities such as running did not 

contradict doctor’s testimony that she suffered from depression and head 

injuries. An Alberta court found that Facebook photographs of a man 

riding a bike were not persuasive compared to medical evidence about the 

painful foot injuries he suffered after falling through a faulty platform 

while playing laser tag: 

While Mr. DeWaard's Facebook profile is not completely consistent with his 

evidence at trial, I am prepared to accept that Facebook profiles may contain an 

overly positive perspective regarding one's abilities and interests or a certain 

amount of puffery. 258 

Social networking evidence is unlikely to drastically affect reasonable 

claims, but those who wish to exaggerate their injuries will face far more 

scrutiny. In many cases, the threat of having to divulge personal materials 

may be more of a tactical maneuver, in order to acquire a settlement prior 

to trial. For example in Sparks v Dubé, where the court ordered the 

254 

Mayenburg v Lu, 2009 BCSC 1308 at para 40 (available on WL Can). 

255 


256 

Raun v Suran, 2010 BCSC 793 at para 25 (available on WL Can). 

257 

Cikojevic v Timm, 2010 BCSC 800 at para 124 (available on WL Can). 

258 

DeWaard v Capture the Flag Indoor Ltd, 2010 ABQB 571 at para 41 (available on WL 

Can).


supervised download of a plaintiff’s Facebook profile, the case was settled 

out of court shortly after the ex-parte ruling was issued. 259 

3. Income Assessment 

In cases where the income of a party or their ability to work becomes 

an issue (including bankruptcy suits, spousal support, or access to social 

service benefits), social networks and particularly photographs may provide 

probative and relevant information into the lifestyle an individual lives 

and their access to financial resources. Vacation photographs or 

participation in expensive activities may provide reasonable grounds for a 

court to doubt the credibility of claims related to poverty, financial 

hardship and inability to work. 

For example, a BC court refused to discharge a man from bankruptcy 

and debts to a former girlfriend after his creditors introduced photographs 

from his Facebook account showing him at an expensive social club on 

numerous occasions. 260 A judge rejected a father’s attempts to reduce his 

child support obligations, finding that Facebook photographs depicting 

him on a motorcycle and his girlfriend skydiving contradicted his claims of 

financial hardship. 261 In Cikojevic v Timm, the Master rejected an earlier 

motion by the plaintiff to get an advance on damages after the admission 

of numerous photographs from her Facebook account demonstrated her 

ability to afford activities such as snowboarding and golf. 262 An Ontario 

court, on the other hand, rejected a former husband’s attempt to end 

spousal support because he felt his wife could afford to vacation in Paris 

and Cancun. 263 

In addition, social networking evidence has been used to challenge an 

individual’s credibility regarding their ability to work. A court rejected a 

father’s contention that he was not capable of working due to medical 

259 

“Facebook photo seizure settlement reached” CBC News (1 March 2011), online: CBC 

News . 

260 

Jabs, Re, 2010 BCSC 1325 (available on WL Can). 

261 

Kolodziejczyk v Kozanski, 2011 ONCJ 6 (available on WL Can). 

262 

2008 BCSC 74 at para 47 (available on WL Can). 

263 

Vacaru v Vacaru, 2010 ONSC 7020 (available on WL Can). The wife had clicked a 

‘like’ button on Facebook that indicated she wanted to visit those destinations despite 

her relative financial inabilities. This is very different from uploading photographs of 

her actually vacationing.


issues after reviewing submissions from his Facebook account and finding 

statements that he was self-employed and evidence that he regularly biked 

and engaged in off-road motor sports. 264 

Courts in the US have denied social security benefits or increased 

support payments for individuals whose social networking profiles appear 

to contradict their medical health concerns. An Arkansas court refused to 

overturn an administrative decision denying a woman’s application for a 

permanent disability pension because of her alleged mental incapacity, 

noting she spent all day on Facebook and had little difficulty engaging in 

activities when she wanted to. 265 A New Jersey appellant court took judicial 

notice of a Facebook photograph of a woman smoking in a review of 

whether she was fairly denied permanent disability benefits, noting that 

such evidence appeared to contradict her claims that she was unable to 

work on account of severe asthma. 266 A New York court determining 

spousal support amounts found that Facebook entries about a woman 

belly dancing were relevant to the effect an alleged accident had on her life 

and whether she was unable to leave the house to find employment. 267 

4. Family Law 

While most civil trials limit the ability to introduce prejudicial 

character evidence, in family law almost any picture, status update or link 

shared may be relevant to the capacity of a parent to raise a child. Often, 

the character of the individuals is the central issue, and the only legal issue 

for a court to determine is the weight to be given to social networking 

evidence once admitted. 

Increasingly, profiles and posts of parents and former spouses have 

tended to lead to adverse rulings against one of the parties. It may be that 

former spouses are still connected as ‘friends’ through a social network, or 

a mutual friend may be willing to pass on material from another’s account, 

or the information may appear through the discovery process. In some 

cases, online activity is relevant to the decision. Social networks will often 

reveal photographs or statements indicative of lifestyle choices that may 

reflect badly on a parent in a court case. 

264 

R(CM) v R(OD), 2008 NBQB 253, 337 NBR (2d) 90. 

265 

Conners v Astrue, 2010 WL 903416 (ED Ark). 

266 

Purvis v Commissioner of Social Sec, 2011 WL 741234 (DNJ). 

267 

BM v DM, 927 NYS (2d) 814 (NY Sup 2011).


For example, a father whose Facebook profile contained inappropriate 

language and homophobic jokes was denied access to his children. 268 

Another father was denied joint parenting control after the court reviewed 

his Facebook account, noticing crude and obscene references to porn 

stars, links to a page referring to his former spouse as crazy and other 

derogatory material alongside photos of his child. 269 A young mother who 

uploaded photographs of herself smoking marijuana, drinking and 

dancing to Facebook was denied custody of her child and unsupervised 

overnight visits. 270 In another case, a wife won sole custody after her 

husband made repeated negative comments about her and appeared to 

stalk her by posting photographs of her car parked at a friend’s house on 

his Facebook account. 271 

However, not all social networking material impacts negatively on a 

decision. One judge rejected as immaterial that a mother used to work as a 

stripper and had salacious photos on her Facebook account, stating, 

“[c]onduct, save as it bears upon the care of the children, is irrelevant to 

my determination of temporary custody and access.” 272 A BC judge 

rejected a mother’s contention that a disheveled photograph taken of a 

father with his daughter likely showed him on drugs, noting the 

alternative explanation that it was a sleepy morning photo taken while 

camping. 273 

5. Education Law 

Educational institutes are also coming to terms with social networking 

usage by students. Unlike private law cases involving employers, 

universities and schools are more limited in how they can use comments 

on a social network; many are “government actors” and thus their students 

may be protected by either Section 2(b) of the Canadian Charter of Rights 

and Freedoms 274 or by the First Amendment in the US. 275 In Pridgen v 

268 

Westhaver v Howard, 2007 NSSC 357, 260 NSR (2d) 117. 

269 

M(MJ) v D(A), 2008 ABPC 379 at para 52 (available on WL Can). 

270 

W(JWA) v B(A), 2008 NBQB 157 (available on WL Can). 

271 

Byram v Byram, 2011 NBQB 80, 376 NBR (2d) 241. 

272 

Dearden v Dearden, 2009 ONCJ 90 at para 11 (available on WL Can). 

273 

D(K) v S(J), 2010 BCSC 1160 (available on WL Can). 

274 

Charter, supra note 36, s 2b. 

275 

US Const amend I.


University of Calgary, 276 a student successfully appealed a University 

decision to reprimand him for comments made in a Facebook group 

regarding a professor’s teaching style. The Court rejected the University’s 

assertion that “expression in the form of criticism of one's professor must 

be restricted in order to accomplish the objective of maintaining an 

appropriate learning environment.” 277 

While courts have found that students may criticize teachers, 

educational institutes do have the ability to discipline students for 

comments that violate the law or risk disrupting classes. An Ontario court 

upheld the decision to expel a law student who, after being warned, 

continued to post comments that his fellow students were “subhuman” 

and which made reference to killing sprees. 278 The court rejected the 

student’s contention that the comments were made out of school and 

agreed that the comments could create fear and apprehension amongst 

classmates. It also differentiated between acceptable social networking 

statements and that which could be held against a student: 

This court is mindful of the historical importance of encouraging free speech on 

university campuses, and rigorously defending the right of students to debate 

difficult and often highly unpopular issues with passion. However, free speech 

has its limits, including the making of threats and defamation of character. 279 

Courts in the US have taken a similar approach finding that online 

postings can be grounds for dismissal if they are likely to disrupt class. In 

JC ex rel RC v Beverly Hills Unified School District, 280 the court agreed with a 

school’s decision to suspend a student who created YouTube videos 

mocking another student. It found that statements or posts made on the 

internet could be grounds for removal if it is “foreseeably likely to cause a 

substantial disruption of school activities” and a “sufficient nexus exists 

where it is “reasonably foreseeable” that the speech would reach 

campus.” 281 The court also noted that it is reasonable foreseeable that 

material posted on the internet would reach the school. Similar 

276 

Pridgen v University of Calgary, 2010 ABQB 644, 325 DLR (4th) 441. 

277 


278 

Zhang v University of Western Ontario, 2010 ONSC 6489 at para 27, 328 DLR (4th) 

289. 

279 


280 

JC ex rel RC v Beverly Hills Unified School Dist, 711 F Supp 2d 1094 (CD Cal 2010). 

281 

Ibid at 1107.


suspensions have been upheld where threatening social networking videos 

have been produced in jest if they “materially and substantially disrupt the 

work and discipline of the school.” 282 

VI. CONCLUSION 

This paper examined the legal issues related to discovering and 

utilizing evidence from social networks and looked at the ways courts have 

dealt with it in terms of both criminal and civil law. In criminal 

proceedings, investigators have tools to obtain evidence directly from the 

social networks when reasonable grounds exist. They must then proceed to 

prove the authenticity of the material as well as ensure that the probative 

value outweighs potential prejudice. In Canada, local investigations can be 

assisted by the Department of Justice to obtain the necessary court orders 

in the US. Defence lawyers faced with social networking evidence should 

be aware of issues regarding authentication, context and potential 

prejudice. 

In civil proceedings, parties are obligated to produce any evidence that 

is relevant to an issue which depends on the nature of the claim or the 

dispute. In litigation particularly, it is incumbent on counsel to advise 

their clients on the risks of using social networks, as well as their 

obligation to preserve relevant material even if it is adverse to their case. 

Anyone involved in a dispute should be aware that procedural fairness and 

the truth seeking process will generally outweigh personal privacy 

concerns, and courts have the power to compel individuals to uncover 

their digital lives to assist in dispute resolutions. 

Social networks have only been around a few years and the law in 

these areas will continue to grow. Some of the cases covered spring from 

misunderstandings of the private nature of a social network. Others are 

the result of a compulsion to seek attention despite the consequences. 

In large part, the use of social networking has resulted in traditional 

means of communicating inner secrets and private thoughts being 

displaced with keyboard strokes and chat transcripts. This paper is not 

intended to dissuade individuals from using social networks. From 

connecting long lost friends to helping overthrow dictators, the benefits of 

282 

OZ v Board of Trustees of Long Beach Unified School Dist, 2008 WL 4396895 (CD Cal).


new forms of communication are numerous. However, any form of social 

incrimination, public or private, may find itself admissible in a court.


Pine Tree Justice: 

Punitive Damage Reform in Canada 

B O Y D M C G I L L 


S 

ince the decision of the Supreme Court of Canada in Whiten v Pilot 

Insurance Co, the dire predictions of some academic and industry 

commentators have largely failed to come true. 1 Fears abounded that 

Whiten’s $1,000,000 award of punitive damages 2 would open the 

floodgates, with Canadian courts becoming swamped in the perceived 

morass of American tort law. 3 In Manitoba, punitive damage awards since 

Whiten have become neither larger nor more frequent. 4 The anxiety of the 

commentators, although not fully realised, reflects the precarious position 

of the law governing punitive damages in Canada. Many of their fears 

were reflected in the decision of Binnie J (and LeBel J in dissent) in Whiten 

 

B.A., LL.B. (Manitoba). Articling student-at-law at the Manitoba Prosecution Service. 

The views expressed herein are his own and do not necessarily reflect the views or 

opinions of the Manitoba Prosecution Service. 

1 

Whiten v Pilot Insurance Co, 2002 SCC 18, [2002] 1 SCR 595 [Whiten SCC]. 

2 

Following the practice of the Supreme Court of Canada, I have used the term 

“punitive damages” in this paper instead of “exemplary damages.” The terms are 

synonymous. 

3 

See e.g. Rudy V Buller, “Whiten v Pilot: Controlling Jury Awards of Punitive Damages” 

(2003) 36 UBC L Rev 357; Roger G Oatley, “Punitive damages in Canada: Whiten v 

Pilot Insurance, “The Insurer from Hell”” (Winter 2002) 21 Advocates’ Soc J No 3 14; 

Canadian Underwriter, “Court upholds $1 million punitive award against Pilot” (1 

March 2002), online: Canadian Underwriter ; Eleni 

Maroudas & Sivan Tumarkin, “Significant Damage Awards Including Punitive and 

Economic Loss Awards Across Canada and the Meaning of “Serious Impairment” in 

Threshold Cases”, online: Samfiru Tumarkin LLP . 

4 

See Appendix I for recent punitive damage awards in Manitoba.


itself. Perennial concerns about punitive damage awards are unresolved. 

Chance, not systemic safeguards, has prevented a flood of cases that would 

undermine the legitimacy of the system of punitive damages. 

This paper will argue that punitive damages serve a valuable function 

in Canadian law and ought to be preserved as an exceptional remedy in 

appropriate cases. The jurisprudential basis for awarding punitive damages 

is solid, but measures need to be taken to preserve that philosophical basis. 

A number of problems, some old and some new, are unresolved by the 

decision in Whiten. Moreover, public confidence in this scheme is at risk 

of eroding. The omnipresent influence of American politics and popular 

culture informs public perception in Canada. Problematically, the law 

governing punitive damages has few safeguards to prevent the type of case 

that will provoke public outrage. American states have tried various proactive 

and reactionary approaches to the punitive damages “problem”. 

Provincial legislatures should act, informed by the varied American 

experience, to address the weaknesses in the system. 

II. HISTORY OF PUNITIVE DAMAGES 

The history of punitive damages, in one form or another, is thousands 

of years old. 5 The ancient precursors to modern punitive damages had a 

similar function but operated much differently. For example, the Code of 

Hammurabi and Roman law formally required, without discretion, that 

damages be multiplied by prescribed factors in certain types of cases as a 

form of approbation of particularly undesirable conduct. 6 In the common 

law world, punitive damages as we know them have existed in England 

since Wilkes v Wood and Huckle v Money in 1763. 7 The first reported 

American case arose in 1784. 8 In Canada, punitive damages were first 

considered by the Supreme Court in 1886 in Collette v Lasnier, where 

5 

See Michael Rustad & Thomas Koenig, “The Historical Continuity of Punitive 

Damage Awards: Reforming the Tort Reformers” (1993) 42:4 Am U L Rev 1269 at 

1285-86; see also Whiten SCC, supra note 1 at para 41, Binnie J. 

6 

Rustad and Koenig, supra note 5 at 1284-86. 

7 

Wilkes v Wood, (1763), Lofft 1, 98 ER 489 CP (Eng); Huckle v Money, (1763), 2 Wils 

KB 206, 95 ER 768. 

8 

Genay v Morris, (1784) 1 SCL (1 Bay) 6 (SC Sup Ct).

Pine Tree Justice 289 

“exemplary damages” were pleaded but not awarded. 9 Only in Wilkes v 

Wood did Pratt LCJCP recognise a jury’s discretionary power to award 

damages “designed not only as a satisfaction to the injured person, but 

likewise as a punishment to the guilty, to deter from any such proceeding 

for the future, and as a proof of the detestation of the jury to the action 

itself.” 10 Since Wilkes v Wood, punitive damage awards have been a 

consistent feature of common law legal systems. As described below, these 

awards present unique practical and jurisprudential problems. They have 

persisted in an environment of constant attack and questioning for 350 

years. Many times, judges, academics and law-makers have had to defend 

the existence of punitive damages. 11 The modern foundation for punitive 

damages lies in the House of Lords decision in Rookes v Barnard. 12 

Ironically, this decision (and the significant House of Lords case of Cassell 

& Co Ltd v Broome 13 ) is itself antagonistic to the idea of punitive damages. 

In Canada, the law of punitive damages has been allowed to grow 

without legislative intervention. For example, in 1991, the Ontario Law 

Reform Commission’s Report on Exemplary Damages advocated for a 

number of changes in the law, but stopped short of recommending 

legislative action. 14 No province in Canada has legislated in the area of 

punitive damages. By contrast, the majority of American states have passed 

laws constraining the use of punitive damages in various ways. 15 

III. WHAT ARE PUNITIVE DAMAGES? 

Punitive damages in Canada, the United States and England and 

Wales are distinct from compensatory damages, which include aggravated 

9 

Collette v Lasnier (1886), 13 SCR 563 (available on WL Can). 

10 

Wilkes v Wood, supra note 7. 

11 

See Rustad & Koenig supra note 5 at 1298 for a discussion of “The Nineteenth- 

Century War on Punitive Damages”; see also Anthony J Sebok, “What Did Punitive 

Damages Do? Why Misunderstanding the History of Punitive Damages Matters 

Today” (2003) 78 Chi Kent L Rev 163 at 182 for a discussion of the nineteenthcentury 

debate between Simon Greenleaf and Theodore Sedgwick. 

12 

Rookes v Barnard, [1964] 1 AC 1129, [1964] 1 All ER 367 [Rookes]. 

13 

Cassell & Co Ltd v Broome, [1972] 1 AC 1027, [1972] 1 All ER 801 [Broome]. 

14 

Ontario Law Reform Commission, Report on Exemplary Damages (Toronto: Queen’s 

Printer for Ontario, 1991) [Report on Exemplary Damages]. 

15 

See Appendix II for details of specific American laws.


damages. The difference between aggravated and punitive damages has 

been “a source of confusion” 16 in the law, according to Lord Devlin in 

Rookes. In Broome, Lord Hailsham LC went further: “My own view is that 

no English case, and perhaps even in no statute, where the word 

‘exemplary’ or ‘punitive’ or ‘aggravated’ occurs before 1964 [the year 

Rookes was decided] can one be absolutely sure that there is no element of 

confusion between the two elements in damages.” 17 Prior to Rookes, 

English law made no intelligible distinction between punitive and 

aggravated damages. 18 Despite this attempt at clarifying the terminology, 

only eight years after Rookes, Lord Hailsham LC devoted three pages of 

Broome to an explanation of these terms. 19 Indeed, the Supreme Court of 

Canada has itself many times felt it necessary to attempt to explain the 

intractable distinction between aggravated and punitive damages. 20 

In The Law of Damages, Professor Waddams clearly distinguishes 

punitive damages from compensatory damages: 

An exception exists to the general rule that damages are compensatory. This is 

the case of an award made for the purpose not of compensating the plaintiff but 

of punishing the defendant. Such awards have been called exemplary, vindictive, 

penal, punitive, aggravated, and retributory, but the expressions in common 

modern use to describe damages going beyond compensatory are exemplary and 

punitive damages. “Exemplary” was preferred by the House of Lords in Cassell & 

Co. Ltd. v. Broome, but “punitive” has also been used in many Canadian courts 

including the Supreme Court of Canada in H.L. Weiss Forwarding Ltd. v. Omnus. 

The expression “aggravated damages,” though it has sometimes been used 

interchangeably with punitive or exemplary damages, has more frequently in 

recent times been contrasted with exemplary damages. In this contrasting sense, 

aggravated damages describes an award that aims at compensation but takes full 

16 


17 


18 

Julius Stone, “Double Count and Double Talk: The End of Exemplary Damages?” 

(1972) 46 Australian L J 311 at 314-18. 

19 

Supra note 13 at 17-19. 

20 

See e.g. Whiten SCC, supra note 1 at paras 156-58, LeBel J; Vorvis v Insurance 

Corporation of British Columbia, [1989] 1 SCR 1085, 58 DLR (4th) 193, McIntyre J 

[Vorvis]; Fidler v Sun Life Assurance Co of Canada, 2006 SCC 30, [2006] 2 SCR 3 at 

paras 50-55, McLachlin CJC and Abella J; McKinley v BC Tel, 2001 SCC 38, [2001] 2 

SCR 161 at para 85, Iacobucci J; Norberg v Wynrib, [1992] 2 SCR 226, [1992] 6 WWR 

673, LaForest J; Hill v Church of Scientology, [1995] 2 SCR 1130, 126 DLR (4th) 129, 

Cory J [Hill].


account of the intangible injuries, such as distress and humiliation, that may 

have been caused by the defendant’s insulting behaviour. 21 [citations omitted] 

However, exactly what constitutes aggravated damages is not clear. 

Professor Cooper-Stephenson draws a line between aggravated damages 

and other non-pecuniary damages, separating damages for pain and 

suffering from aggravated damages: 

Aggravated damages are simply a variety (or possibly sub-head) of non-pecuniary 

damages. They too compensate for intangible loss, but in particular for hurt 

feelings caused by the nature of the defendant’s conduct. Thus Lord Diplock has 

spoken of them as “additional compensation” for “injured feelings,” where the 

plaintiff’s “sense of injury resulting from the wrongful physical act is justifiably 

heightened by the manner in which or motive for which the defendant did it.” 

The range of injured feelings will of course vary with the circumstances, but it 

often embraces such emotion as humiliation, indignity, degradation, shame, 

indignation, and fear of repetition. Operating in effect as a balm or solatium for 

mental distress, aggravated damages closely resemble other non-pecuniary 

damages, especially those for pain and suffering. The distinction between them 

lies mainly in causal sequence. Whereas damages for pain and suffering cover 

distress caused by the physical injuries themselves, aggravated damages cover 

distress caused by the character or form of the defendant’s misbehaviour. 22 

The confusion in terms stems from a fundamental confusion in 

purpose. It is difficult to draw a meaningful line between compensatory 

damages for pain and suffering and aggravated damages for mental distress 

caused by the defendant’s exceptionally bad conduct. Moreover, both 

aggravated damages and punitive damages require proof of exceptionally 

bad conduct by the defendant, over and above an ordinary finding of 

liability. According to the Ontario Law Reform Commission, the overlap 

in both purpose and process is problematic: “… as long as the courts are 

required to employ the same standard of conduct to trigger both a 

compensatory award and an exemplary award, confusion will remain with 

respect to both aggravated and exemplary damages.” 23 The confusion 

between the different types of damages led the Commission to call for 

aggravated damages to be abolished. 24 It advocated for exceptional 

misconduct to be compensated through punitive damages and for run-of- 

21 

SM Waddams, The Law of Damages, 3d ed (Toronto: Canada Law Book, 1997) at 483. 

22 

K Cooper-Stephenson, Personal Injury Damages in Canada, 2d ed (Toronto: Carswell, 

1996) at 527. 

23 

Report on Exemplary Damages, supra note 14 at 29. 

24 

Ibid at 30.


the-mill mental distress to be included in a general calculation of 

compensatory damages. 

A. The State of the Law in Canada 

First in Hill, 25 then in Vorvis 26 and Whiten, the Supreme Court of 

Canada drew the boundaries of the law surrounding awards of punitive 

damages in Canada. Whiten is the leading case. The facts of the case are 

summarised concisely by Binnie J: 

The appellant, Daphne Whiten, bought her home in Haliburton County, 

Ontario, in 1985. Just after midnight on January 18, 1994, when she and her 

husband Keith were getting ready to go to bed, they discovered a fire in the 

addition to their house. They and their daughter, who had also been upstairs, 

fled the house wearing only their night clothes. It was minus 18 degrees Celsius. 

Mr. Whiten gave his slippers to his daughter to go for help and suffered serious 

frostbite to his feet for which he was hospitalized. He was thereafter confined to 

a wheelchair for a period of time. The fire totally destroyed the Whitens’ home 

and its contents, including their few valuable antiques and many items of 

sentimental value and their three cats. 

The appellant was able to rent a small winterized cottage nearby for $650 

per month. Pilot made a single $5000 payment for living expenses and covered 

the rent for a couple of months or so, then cut off the rent without telling the 

family, and thereafter pursued a hostile and confrontational policy which the 

jury must have concluded was calculated to force the appellant (whose family was 

in very poor financial shape) to settle her claim at substantially less than its fair 

value. The allegation that the family had torched its own home was contradicted 

by the local fire chief, the respondent’s own expert investigator, and its initial 

expert, all of whom said there was no evidence whatsoever of arson. The 

respondent’s position, based on wishful thinking, was wholly discredited at trial. 

Pilot’s appellate counsel conceded here and in the Ontario Court of Appeal that 

there was no air of reality to the allegation of arson. 27 

On these facts, a jury awarded Daphne Whiten $287,300 in compensatory 

damages and $1,000,000 in punitive damages. The trial judge also 

awarded prejudgment interest on the compensatory damages and ordered 

Pilot to pay Daphne Whiten’s legal costs, which were substantial: 

$320,000. 

All of the Ontario Court of Appeal justices concurred that punitive 

damages were warranted in this case, but the majority ruled that 

25 


26 


27 

Supra note 1 at paras 2-3.


$1,000,000 was too high and reduced the punitive damages to $100,000. 

Laskin JA, dissenting on this point only, would have upheld the jury 

award. At the Supreme Court, Binnie J (for McLachlin CJ and L’Heureux 

‐Dubé, Gonthier, Major, and Arbour JJ) restored the jury award. LeBel J, 

dissenting, upheld the judgment of the majority of the Ontario Court of 

Appeal. 

The majority judgment in Whiten did not substantially change the law 

governing punitive damages, but Binnie J used this case as an opportunity 

to clarify and consolidate rules from previous cases. Guided by an overarching 

desire to “keep this remedy within reasonable limits,” 28 Binnie J 

laid out ten principles that should govern these cases. Those principles are 

summarised as follows: 

1. The English categorical approach to punitive damages is rejected. 

2. The objectives of punitive damages are punishment, deterrence 

and denunciation. 

3. Because the primary vehicle for punishment is the criminal law, 

punitive damages are exceptional. 

4. “[T]ime-honoured pejoratives” are not helpful; a principled 

approach is desirable. 

5. A court should make the lowest award that will rationally achieve 

one of the objectives of the law. 

6. Using punitive damages to force a defendant to disgorge ill-gotten 

profits is legitimate. 

7. Fixed caps or ratios do not sufficiently account for the many 

variables that will arise. 

8. Punitive damages should be awarded if, but only if, other damages 

are not sufficient to achieve the objectives of the law. 

9. Juries should be instructed on the function of punitive damages 

and given guidance on how to assess an appropriate award. 

10. Punitive damages are not at large; appellate courts may intervene 

if the award “exceeds the outer boundaries of a rational and 

measured response.” 29 

Despite this attempt to clarify the law governing punitive damages, 

Canadian courts have struggled to interpret these subjective guidelines. 

Since Whiten, appellate courts have frequently split on the issue of when 

28 


29 

Ibid at paras 66-76.


punitive damages should be awarded and, if so, how large the awards 

should be. 30 Whiten has not provided Canadian courts with a reliable 

method of determining when punitive damages are appropriate and how 

large awards should be: the numerous split opinions at the appellate level 

reflect the uncertainty in the law. Much is left to opinion: the nature of 

the defendant’s conduct, the rationality of the award vis-à-vis the objectives 

of punitive damages and the quantum of awards, whether from judges or 

juries. 

Although Binnie J wished to jettison “time-honoured pejoratives” in 

favour of a principled approach, the reality is that the varied and colourful 

pejoratives judges have used to describe conduct deserving of punitive 

damages reflect the inherent subjectivity of the exercise. In Hill (approved 

of by Binnie J in Whiten), Cory J allowed punitive damages “in situations 

where the defendant's misconduct is so malicious, oppressive and highhanded 

that it offends the court's sense of decency. … It is the means by 

which the jury or judge expresses its outrage at the egregious conduct of 

the defendant.” 31 The degree of outrage particular facts generate in a 

particular trier of fact is not amenable to objective measurement. In the 

words of Blair JA, dissenting in McIntyre, “‘Outrage’ is not a sound 

yardstick for measuring legal policy.” 32 At the trial level in Whiten itself, the 

jury pleaded with the trial judge for some guidelines to determine the size 

of a punitive damage award. After consulting with both counsel, Justice 

Matlow candidly acknowledged, “I don't know that I can really be of all 

that much help to you,” and urged them to figure out for themselves 

“what that magic figure should be.” 33 Once the jury conjures up that magic 

figure, it is “almost invulnerable to interference by an appellate court.” 34 

30 

See e.g. Elgert v Home Hardware Stores Limited, 2011 ABCA 112, 510 AR 1; Hockley v 

Riley, 2007 ONCA 804, 88 OR (3d) 1; McIntyre v Grigg (2006), 83 OR (3d) 161, 274 

DLR (4th) 28 (Ont CA) [McIntyre cited to OR]; Keays v Honda Canada Inc, (2006) 82 

OR (3d) 161, 274 DLR (4th) 107 (Ont CA); Asselstine v Manufacturers Life Insurance 

Co, 2005 BCCA 292, 254 DLR (4th) 464; Fidler v Sun Life Assurance Co of Canada, 

2004 BCCA 273, 239 DLR (4th) 547; Barrick Gold Corp v Lopehandia (2004), 71 OR 

(3d) 416; 239 DLR (4th) 577 (Ont CA); Ferme Gérald Laplante & Fils Ltée v Grenville 

Patron Mutual Fire Insurance Co (2002), 61 OR (3d) 481, 217 DLR (4th) 34 (Ont CA); 

Brisson v Brisson, 2002 BCCA 279, 213 DLR (4th) 428. 

31 

Hill, supra note 20 at para 196. 

32 

McIntyre, supra note 20 at para 144. 

33 

Whiten v Pilot Insurance Company (1999), 42 OR (3d) 641 at 656; 170 DLR (4th) 280


The difficulty appellate courts have had in applying Whiten is a direct 

result of the subjective discretion it leaves to them: Binnie J allowed “that 

an appellate court is entitled to intervene if the award exceeds the outer 

boundaries of a rational and measured response to the facts of the case.” 35 

As this guidance is not a clear standard of review, it is unsurprising that 

different judges have interpreted it in different ways. In jury trials, there 

are no reasons for awards and appellate courts are therefore left the 

unenviable task of divining whether the particular award is a “rational and 

measured” response. As Canadian law does not permit a jury to provide a 

rationalisation for its decisions, nor to be informed of a reasonable range 

of awards, it is unsurprising that appellate courts differ on whether the 

“magic” number was pulled from the air by the jury on a rational and 

measured basis or for some other, unsupportable reason. 

Whiten itself perfectly illustrates the subjectivity problem. At the 

Ontario Court of Appeal, Laskin JA upheld $1,000,000 in punitive 

damages despite the award being more than sixty times higher than the 

previous upper limit in this type of case. 36 He justified the award in part 

because of the high award in Hill. Hill, of course, first laid out the standard 

of appellate review affirmed in Whiten. 37 Finlayson JA (for the majority), 

also purporting to apply the standard in Hill, reduced the $1,000,000 

award to $100,000, and explained his decision plainly: “I do not propose 

to justify my intervention on any basis other than that I think the award is 

simply too high.” 38 Again, at the Supreme Court, Binnie J and LeBel J 

both adhere to the test devised by Cory J in Hill but arrive at different 

conclusions about whether the punitive damages were rational and 

measured. The subjective element in these cases is evident even in Binnie 

J’s comments on Whiten in 2011 to a reporter from The Globe and Mail: “It 

seemed to me that on a human scale, a massive injustice had been 

(CA), quoting Matlow J [Whiten CA]. 

34 

Riches v News Group Newspapers Ltd, [1986] QB 256 at 280G, [1985] 2 All ER 845 

(Stephenson LJ) [Riches]. 

35 

Whiten SCC, supra note 1 at para 76. 


Whiten CA, supra note 33 at 656-657. 

37 

Hill at para 197. 

38 

Whiten CA, supra note 33 at 661.


corrected and a very powerful message sent to the insurance industry … 

Occasionally, you feel that you have really made a difference.” 39 

One unequivocal result of Vorvis and Whiten is the availability of 

punitive damages as a remedy in any type of case. Canada was never 

restricted by the English categorical approach set out in Rookes, but Vorvis 

and Whiten have clearly said that punitive damages are available in cases of 

negligence and, controversially, in contract. 

There is much to commend the system of punitive damages in 

Canada, as described in Whiten. Undeniably, the $1,000,000 award of 

punitive damages awarded to Daphne Whiten had a strong deterrent, 

punitive and denunciatory effect on Pilot Insurance specifically and the 

insurance industry in general. After being wretchedly mistreated by her 

insurer in a time of great need and vulnerability, the award of punitive 

damages was surely sweet vindication for her and her family. Furthermore, 

punitive damages offered recourse in Whiten that would not be available 

elsewhere. What Pilot Insurance did was likely not criminal. Simple 

compensatory damages would have no deterrent effect on Pilot: they 

would simply delay a payment that ought to have been made in the first 

place. The system of punitive damages is a valuable tool for expressing the 

censure of Canadian society for egregiously bad conduct. 

When combined with contingency fee arrangements with lawyers, 

punitive damages can enhance access to justice. The potential for a 

substantial windfall—especially post-Whiten—entices lawyers to take on 

cases. This possibility of over-compensation enhances the ability of 

plaintiffs to find legal representation and to have their cases adjudicated. 

IV. PROBLEMS WITH PUNITIVE DAMAGES 

A. Windfalls 

The foremost problem with punitive damage awards in every 

jurisdiction is discomfort with the “windfall” problem. First and most 

importantly, tort law is meant to be compensatory and damages are 

designed to restore a plaintiff to his or her original position. 40 By their very 

39 

Kirk Makin, “An insider's glimpse at a court in transition; Retiring Justice Ian Binnie 

reflects on his most memorable cases, and rebukes those who say the court has lost its 

way,” The Globe and Mail (24 September 2011) A8. 

40 

Allen M Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed (Markham, ON:


nature, punitive damages are not compensatory. They are punishment, 

added on top of whatever is necessary to compensate. There is a deep 

discomfort about plaintiffs receiving money they do not deserve, among 

the public and the courts alike. Punitive damage awards, especially in the 

United States, can be very large. When an Alabama jury awards a man 

$4,000,000 in punitive damages because his BMW is scratched, the public 

blood boils. 41 The case of Stella Liebeck, awarded $2,700,000 by a jury for 

spilling hot coffee in her lap, has become emblematic of public outrage 

over punitive damage awards that seem very far removed from any 

compensatory function. 42 The details of these cases that would mitigate 

public outrage are not so sensationalist and therefore rarely publicised. 43 

Public outrage is also fuelled by widespread reporting of frivolous 

claims that are ultimately dismissed. The notorious case of Pearson v Chung 

attracted much media attention for its comical facts: an administrative 

judge sued a dry cleaner for more than $67,000,000 for losing his pants. 44 

This case attracted enormous media attention likely in part because of its 

comical aspects. However, one tort reform lobby group issued a press 

release holding up the case as an example of the need for reform, perhaps 

thereby unintentionally lending some legitimacy to the case and 

entrenching the public perception that such lawsuits are pervasive. 45 Public 

perception is always difficult to assess, but in one American study from 

1992, the authors found that 83% of jurors held a negative opinion of 

plaintiffs in civil suits and felt that there were too many frivolous 

lawsuits. 46 Since then, the media have given much press to the cases noted 

above and others, “tort reform” held a prominent place in the 2000 and 

LexisNexis, 2011) at 4-5; Whiten SCC, supra note 1 at paras 146-147 (LeBel J). 

41 

BMW of North America, Inc v Gore, 517 US 559 (1996) (available on WL) [BMW v 

Gore]. The award was greatly reduced on appeal, as discussed later in this article. 

42 

Liebeck v McDonald's Restaurants, PTS, Inc, 1995 WL 360309 (N Mex Dist Ct 1994) 

[McDonald’s]. 

43 

See Hot Coffee, 2011, DVD: (The Group Entertainment, 2011). 

44 

Pearson v Chung, 961 A 2d 1067 (available on WL)(DC App Ct 2008). 

45 

American Tort Reform Association, “ATRA Cheers Defense Verdict in Infamous 

‘Pantsuit’” (25 June 2007) online: American Tort Reform Association 

. 

46 

Valerie P Hans & William S Lofquist, “Jurors Judgment of Business Liability in Tort 

Cases: Implications for the Litigation Explosion Debate” (1992) 26:1 Law and Soc’y 

Rev 85.


2004 American presidential election campaigns, and lobby groups such as 

the US Chamber of Commerce and the American Tort Reform 

Association have escalated their lobbying in favour of restricting plaintiff’s 

rights. Given those developments in the last twenty years, it seems unlikely 

that public attitudes have shifted towards favouring plaintiffs. Although 

not on precisely the same point, a 2005 Angus Reid poll found that 61% 

of Americans supported “[t]ort reform to limit lawsuits against doctors and 

manufacturers.” 47 

In Canada, we do not see the size or frequency of punitive damage 

awards that Americans do. 48 However, it is undeniable that Canadian 

public opinion on a great number of issues is informed by the American 

experience and the omnipresent American media and entertainment 

behemoth. The public scorn for punitive damage awards is 

understandable, given the media climate, but judges too are 

uncomfortable with plaintiff windfalls. In Rookes, Lord Devlin called them 

an “anomaly”; 49 Lord Hailsham LC in Broome called them “unmerited”, 50 

Both Binnie J and LeBel J refer to the in terrorem arguments about the 

American experience with plaintiff windfalls and attempt to distinguish 

the Canadian situation. 51 Binnie J, among others, has tried to reconcile 

these windfalls with policy principles by arguing that punitive damages are 

a reward for performing the valuable public service of exposing execrable 

conduct: “In the present case, for example, no one other than the 

appellant could rationally be expected to invest legal costs of $320,000 in 

lengthy proceedings to establish that on this particular file the insurer had 

behaved abominably. Over-compensation of a plaintiff is given in 

exchange for this socially useful service.” 52 The notion of plaintiffs as 

“private Attorneys General”, 53 rewarded by a windfall payment, is 

discussed further below. 

47 

Angus Reid Public Opinion, “Differing U.S. Views on Liability Limits” (8 May 2005) 

online: Angus Reid . 

48 

Steven R Schoenfeld, Michael A Penny & John A Terry, “Understanding Litigation in 

Canada” (2001) NYLJ 16 April 2001. 

49 


50 


51 

Whiten SCC, supra note 1 at paras 39 and 148. 

52 


53 

Associated Industries of New York State Inc v Ickes, Secretary of the Interior, et al, 134 F 2d


B. Confusion between civil and criminal law 

By definition, punitive damages incorporate punishment and censure 

as goals among their other objects. 54 In Whiten, LeBel J is resigned to the 

entrenchment of punitive damages as a remedy in the system of Canadian 

law, but nonetheless comments on how Whiten particularly and punitive 

damages generally tend to distort the function of tort law: 

The award of punitive damages in discussion here leads us far away from this 

principle. It tends to turn tort law upside down. It transmogrifies what should 

have remained an incident of a contracts case into the central issue of the 

dispute. The main purpose of the action becomes the search for punishment, not 

compensation. Perhaps, at some time in the future, this will be viewed as part of 

a broad intellectual and social movement of privatization of criminal justice, 

consonant with the general evolution of society. For the time being, without 

using in terrorem arguments, such an award has a potential to alter significantly 

what would appear to have been the proper function of tort law. 55 

This criticism of punitive damages has a long pedigree. Undeniably, 

punitive damages blur the line between criminal and civil law. As LeBel J 

identifies, it is a step towards the privatisation of criminal justice. The 

blurring of these lines was described with colourful indignation by Foster J 

in Fay v Parker: 

What is a civil remedy but reparation for a wrong inflicted, to the injury of the 

party seeking redress,—compensation for damage sustained by the plaintiff? How 

could the idea of punishment be deliberately and designedly installed as a 

doctrine of civil remedies? Is not punishment out of place, irregular, anomalous, 

exceptional, unjust, unscientific, not to say absurd and ridiculous, when classed 

among civil remedies? What kind of a civil remedy for the plaintiff is the 

punishment of the defendant? The idea is wrong. It is a monstrous heresy. It is 

an unsightly and an unhealthy excrescence, deforming the symmetry of the body 

of the law. 56 

Two representative cases will demonstrate the practical implications of 

the confusion and overlap between punitive damages in a civil trial and a 

criminal prosecution on the same facts. 

694 (2d Cir 1943) at para 5. 

54 

David G Owen, “A Punitive Damages Overview: Functions, Problems and Reform” 

(1994) 39 Vill L Rev 363 at 373-382. Owen identifies five functions of punitive 

damages: 1. Education 2. Retribution 3. Deterrence 4. Compensation 5. Law 

Enforcement. 

55 


56 

Fay v Parker, 53 New Hampshire Reports 342 (1872) at 382.


1. AJ v WD 57 

In WD, the plaintiff, AJ, alleged gruesome sexual and physical abuse 

by the defendant, WD, her stepfather, beginning when she was eleven or 

twelve years old. She filed her statement of claim in March of 1992—one 

year prior to the laying of criminal charges—and sought general and 

punitive damages. WD was criminally charged with rape, unlawful 

intercourse and gross indecency in March of 1993. The charges of rape 

and unlawful intercourse were dismissed. WD was convicted of one count 

of gross indecency in October of 1995 and sentenced to six months’ 

imprisonment. The civil case was not decided until April of 1999. 

WD was convicted in the criminal trial only of gross indecency for an 

act of fellatio, but in the civil case AJ was able to prove substantially more: 

a pattern of physical and sexual assaults over several years, including many 

incidents of forced sexual intercourse. 58 The trial judge awarded AJ over 

$100,000 in compensatory damages, but refused to consider punitive 

damages for these brief reasons: “While I recognize that there is authority 

for the awarding of punitive damages notwithstanding a criminal 

conviction and sentence, I am of the view that the authorities suggest that 

the awarding of exemplary and punitive damages in addition to a criminal 

sentence is the exception.” 59 

2. McIntyre v Grigg 60 

In this case, Grigg hit McIntyre with his car while driving impaired in 

September of 1996. He caused her serious and permanent physical and 

psychological damage. Grigg was criminally charged with driving with a 

blood alcohol content over .80, impaired driving causing bodily harm and 

operating a motor vehicle in a manner dangerous to the public causing 

bodily harm. At the criminal trial, the breathalyser evidence was excluded 

under section 24(2) of the Charter as the police had not properly informed 

Grigg of his right to counsel. Grigg was convicted of the provincial 

Highway Traffic Act offence of careless driving and fined $500. 

In the civil trial, a jury awarded McIntyre $250,000 in general 

damages, $100,000 in aggravated damages and $100,000 in punitive 

57 

AJ v WD, 1999 CanLII 14143 (Man QB) [WD]. 

58 


59 


60 

Supra note 30.


damages. It was proven at the civil trial that Grigg was driving while 

impaired by alcohol. At the Ontario Court of Appeal, McMurtry CJO and 

Weiler JA agreed that there was a need for an award of punitive damages, 

but reduced the award to $20,000. Blair JA would not have awarded 

punitive damages at all. Blair JA felt that an award of punitive damages 

would undermine the criminal proceeding and valuable legal principles: 

“Outrage” is not a sound yardstick for measuring legal policy (although it may 

form a basis for applying it). In this case, for example, the jury’s level of outrage 

led them to make a punitive damage award of $100,000. It is hard to conceive of 

an impaired driving offence where a fine of that dimension, or even a fine of 

$20,000 (the amount of punitive damages upheld by the majority here), would be 

imposed. Would it follow that judges or juries in civil cases such as this are 

entitled to superimpose their version of a “fine” on the defendant even though 

the defendant was required to pay a fine perfectly in keeping with the principles 

of sentencing in criminal law, and to do so just because the fine imposed does 

not accord with their “level of outrage”? Or, because they felt that the 

misconduct in question before them was broader than the misconduct proved in 

the criminal proceeding? 

A judge or jury in the civil proceeding cannot know the answer to this latter 

question – or, indeed, to the question of whether the fine imposed in the 

criminal proceeding was appropriate for that proceeding – without knowing all 

of the evidence and all of the factors underlying the disposition of the criminal 

proceeding. They cannot know these dynamics of the parallel criminal case 

without having tried it. There is a well-founded policy against the duplication of 

legal proceedings. I do not see how the preservation of public order and the 

tempering of harm done to the public good – the objectives of punitive damages 

– are advanced by allowing judges or juries in civil cases to override what they 

may perceive to be imperfections in the criminal proceedings, except in the truly 

rarest of cases. 61 

The majority dealt with the issue of the criminal trial differently, and 

specifically feels that its award of $20,000 in punitive damages is a more 

appropriate punishment than the criminal court’s $500 fine: 

In our view, a court in a civil proceeding should generally demonstrate deference 

to the decision of the other court. Otherwise, the review of the appropriateness 

of a penalty administered in a criminal court, for example, could be viewed as a 

collateral attack on that decision. In our opinion, the “disproportionality” test 

enunciated by Binnie J. in Whiten in relation to the wrongful conduct and the 

penalty imposed is one that should be approached with considerable caution. 

We believe that the facts in the present case present one of those rare 

instances where the disproportionality test applies. It was rational for the jury to 

61 

Ibid at paras 144-145.


conclude that punitive damages would denounce Andrew Grigg’s conduct and 

signal the need for general deterrence of impaired driving. Given Andrew Grigg’s 

fine of $500, punitive damages would not amount to double punishment, and 

indeed would be more appropriate punishment. 62 

3. Whiten 

In Whiten, Binnie J did address the obvious conflicts that will arise 

between criminal law and punitive damages, although no such issue arose 

on the facts of that case itself: 

Third, there is recognition that the primary vehicle of punishment is the criminal 

law (and regulatory offences) and that punitive damages should be resorted to 

only in exceptional cases and with restraint. Where punishment has actually 

been imposed by a criminal court for an offence arising out of substantially the 

same facts, some jurisdictions, such as Australia and New Zealand, bar punitive 

damages in certain contexts, but the dominant approach in other jurisdictions, 

including Canada, is to treat it as another factor, albeit a factor of potentially 

great importance. The Ontario Law Reform Commission, supra, recommended 

that the “court should be entitled to consider the fact and adequacy of any prior 

penalty imposed in any criminal or other similar proceeding brought against the 

defendant.” 63 [citations omitted] 

Compensatory damages also punish. In many cases they will be all the 

“punishment” required. To the extent a defendant has suffered other 

retribution, denunciation or deterrence, either civil or criminal, for the 

misconduct in question, the need for additional punishment in the case 

before the court is lessened and may be eliminated. In Canada, unlike 

some other common law jurisdictions, such “other” punishment is 

relevant but it is not necessarily a bar to the award of punitive damages. 

The prescribed fine, for example, may be disproportionately small to the 

level of outrage the jury wishes to express. The misconduct in question 

may be broader than the misconduct proven in evidence in the criminal or 

regulatory proceeding. The legislative judgment fixing the amount of the 

potential fine may be based on policy considerations other than pure 

punishment. The key point is that punitive damages are awarded “if, but 

only if” all other penalties have been taken into account and found to be 

inadequate to accomplish the objectives of retribution, deterrence, and 

denunciation. 64 

62 

Ibid at 80-81. 

63 


64 

Ibid at para 123.


4. Analysis 

The first problem arising from Binnie J’s analysis in Whiten is pointed 

out by Blair JA in McIntyre: “Outrage is not a sound yardstick for 

measuring legal policy.” 65 Despite its inherent subjectivity, Binnie J 

legitimised outrage as the sole basis for a jury to impose punitive damages. 

In the criminal system, the outrage, per se, of the sentencing judge is not 

really a factor to be considered in determining an appropriate sentence 

under section 718 of the Criminal Code. 66 Punishment is not an objective 

of sentencing in the scheme of the Criminal Code: rather, punishment is 

the end result of the sentencing process, which has different objectives. 

The sentencing objectives of the Criminal Code are: denunciation, 

deterrence, protection of society, rehabilitation and the promotion of a 

sense of responsibility in offenders. Again, the objectives of punitive 

damages are: punishment, deterrence and denunciation. 67 When assessing 

punitive damages, punishment is a valid objective in itself; a desire to 

punish is not a legitimate starting point for a sentencing judge. The jury 

considering punitive damages and the judge considering a criminal 

sentence are not engaged in identical processes: even if working from the 

same proven facts, they are required to consider different factors in 

arriving at their conclusions. 

The second problem is that neither Binnie J nor the judges in WD or 

McIntyre address a fundamental problem with accounting for criminal 

sanctions in civil cases: it is the sequence of cases that determines the 

penalty the offender/defendant will suffer. The plodding pace of civil 

justice in Canada means that it is far more likely for criminal proceedings 

to be concluded prior to a decision in a parallel civil case. Even when the 

civil statement of claim is filed before criminal charges, as was the case in 

WD, the criminal process will probably conclude first, given the Charter 

right to be tried within a reasonable time. 68 

The principle articulated by all of these judges is that one should not 

be made to pay twice for the same conduct. However, if we imagine a case 

65 


66 

Criminal Code, RSC 1985, c C-46 s 718 [Criminal Code]. “Outrage” could be a factor 

subsumed in the objective of denunciation, or in the aggravating factors at s 718.2. 

67 

Whiten SCC, supra note 1 at para 68. 

68 

Canadian Charter of Rights and Freedoms, s 11(b), Part I of the Constitution Act, 1982, 

being Schedule B to the Canada Act 1982 (UK), 1982, c 11.


where the civil trial concludes first and punitive damages are awarded for 

egregious conduct, we can be certain that if there is a subsequent criminal 

conviction for the same acts that a sentencing judge will not account for 

those punitive damages in determining a fit criminal penalty. Binnie J has 

not addressed this inconsistency. If the principle against double 

punishment is to be accepted, it ought to be applied universally. There is 

no principled basis for awarding punitive damages to the plaintiff in this 

hypothetical scenario but denying them to AJ in WD. 

The Criminal Code itself addresses at least one scenario where an 

offender/defendant may be required to pay twice. See section 741.2 of the 

Criminal Code: “A civil remedy for an act or omission is not affected by 

reason only that an order for restitution under section 738 or 739 has 

been made in respect of that act or omission.” 69 Here, the Criminal Code 

specifically permits double recovery by a plaintiff. A restitution order made 

under section 738 could require an offender to pay the victim what are, 

essentially, compensatory damages. Section 741.2 does not prohibit a 

parallel civil remedy concerning the same matter. Certainly, Canadian law 

does not prohibit double recovery or double punishment as an absolute 

rule. Manitoba has another scheme whereby a civil punishment can be 

imposed despite the existence of a parallel criminal penalty: The Criminal 

Property Forfeiture Act. 70 This Act permits the province to seize proceeds of 

crime and specifically disregards the significance of criminal proceedings. 71 

Under this scheme, an offender can be convicted criminally for some 

activity and then have the province seize property used in the commission 

of the offence. The CPFA is as much double punishment as punitive 

damages are. Both schemes have purposes that are aligned with but not 

identical to the goals of the criminal justice system. Punishment in one 

arena does not necessarily satisfy the needs of the other. 

The third issue raised by Binnie J’s formulation of the law is that the 

worst cases are the ones least likely to attract punitive damages. Although 

it is an oversimplification, compare Whiten to WD: Daphne Whiten 

received $1,000,000 for being mistreated by an insurance company while 

AJ received nothing for years of physical and sexual assault by her 

stepfather. Apart from the question of the financial capacity of the 

69 

Criminal Code, RSC 1985, c C-46, s 741.2. 

70 

The Criminal Property Forfeiture Act, SM 2004, c 1, CCSM c C306 [CPFA]. 

71 

Ibid, s 9(1), although this section was recently repealed on June 14, 2012.


respective defendants, the biggest factor at play was the criminal 

conviction of WD. This conviction was enough for Monnin J to dispose 

briefly of the entire question of punitive damages. 

Almost by definition, the worst conduct is most likely to attract 

criminal penalties. Canadian society has expressed its collective 

repugnance at the worst of human conduct in the criminal law. A plaintiff 

who is the victim of egregiously bad conduct is more likely to be the victim 

of something criminal and therefore least likely to be awarded punitive 

damages. The near-prohibition on punitive damages following a criminal 

conviction is a strong factor undermining the legitimacy of this entire 

scheme. Was the damage to Casey Hill’s reputation really worth $800,000 

while AJ’s years of suffering, abuse and psychological trauma were worth 

nothing? 72 Was the Church of Scientology’s behaviour $800,000 worse 

than that of WD? Obviously, other factors were involved in the punitive 

damage awards in these cases, but for AJ in WD, the criminal conviction 

was a complete bar to recovery of punitive damages. 

The fourth problem is that Binnie J pays only lip service to the 

substantial differences between criminal and civil proceedings, even when 

arising out of ostensibly the same underlying facts. There will be very few 

cases where exactly the same facts are proven in criminal and civil cases 

arising out of the same proceedings. There are a myriad of differences 

between a criminal and a civil case and many are of fundamental 

importance. The largest is the standard of proof: on the same evidence, a 

civil trier of fact can conclude that something did happen, while a criminal 

trier of fact may not. Obviously, the evidence that a criminal trier of fact 

even gets to hear is substantially restricted by tighter criminal rules of 

evidence. Most importantly, the accused in a criminal case cannot be 

compelled to testify. The different rules of evidence mean that the civil 

trier of fact may get to hear substantial evidence that a criminal trier of fact 

will not. McIntyre demonstrates clearly how the exclusion of relevant 

evidence because of a Charter breach can fundamentally change the 

findings of fact and the outcomes in civil and criminal cases. 

Given that the same things are highly unlikely to be proven in parallel 

civil and criminal cases, it seems quite rash to dismiss a claim for punitive 

damages (as Monnin J did in WD) on the basis of a criminal conviction 

72 

Hill, supra note 20, where the Supreme Court of Canada upheld $800,000 in punitive 

damages because of the Church of Scientology’s slander of Casey Hill.


that could be based on different evidence, proven to a different standard, 

decided in an entirely different framework and that attracted a sentence 

based on objectives exclusive to Part XXIII of the Criminal Code. 

Canadian law generally prohibits the re-litigation of the same action or 

issue. The law has many protections to prevent this from happening: 

“principles of the plea of autrefois acquit, res judicata, the rule in Kienapple v 

The Queen, the maxim nemo debet bis vexari pro una et eadem causa and 

section 11(h) of the Canadian Charter of Rights and Freedoms.” 73 Notably, 

none of these principles are argued in cases of dual civil/criminal 

processes. If double punishment for the same acts were truly the courts’ 

concern, res judicata would prevent civil litigation on the same facts as a 

previous criminal prosecution. Acquittals would be as persuasive as 

convictions when assessing punitive damages. The differences in process, 

procedure and rules reflect another fundamental difference between 

parallel civil and criminal cases: committing a crime (i.e. a wrong against 

the Crown) is not equivalent to committing a wrong against another 

person. 

C. Judges and Juries 

When a judge sentences an offender for a crime, one of the guiding 

considerations is that similar sentences should be given to similar 

offenders for similar crimes. 74 No such principle governs awards of 

punitive damages. Instead, juries and trial judges are given little guidance. 

The principle of rational relation to the purposes of punitive damages 

from Whiten stands in the stead of the principle of similarity that governs 

criminal sentencing. Binnie J advises that “proportionality” 75 is the rule, 

but he does not mean proportionality between an award aimed at the 

conduct of the specific defendant and its general blameworthiness when 

compared to other cases. Here, proportionality means an award that is 

rationally related to the conduct in issue. Essentially, the assessment of the 

quantum of damages is done in a vacuum. 

As noted above, the jury in Whiten sought advice from the trial judge 

on the appropriate range of punitive damages for them to consider. The 

73 

R v Van Rassel, [1990] 1 SCR 225, 53 CCC (3d) 353. 

74 

Criminal Code, supra note 66, s 718.2(b). 

75 

Supra note 1 at para 74.


trial judge, with the concurrence of both plaintiff’s and defendant’s 

counsel, left it to the jury to find the “magic” figure. The jury, who 

apparently felt that Pilot Insurance Co. had behaved abominably, awarded 

$1,000,000. Every judge involved in this case agreed that the figure was 

high; disagreement was only whether $1,000,000 was too high. At the 

Supreme Court, Pilot’s counsel argued that the trial judge should have 

given greater direction to the jury on how to assess the appropriate size of 

a punitive damage award. 76 Binnie J agreed that the jury instruction was 

threadbare, but declined to change the Supreme Court’s view on whether 

a range of numbers should be given to a jury: 

If counsel can agree on a “bracket” or “range” of an appropriate award, the trial 

judge should convey these figures to the jury, but at the present time specific 

figures should not be mentioned in the absence of such agreement. (This 

prohibition may have to be reexamined in future, based on further experience.) 

Counsel should also consider the desirability of asking the trial judge to advise 

the jury of awards of punitive damages made in comparable circumstances that 

have been sustained on appeal. 77 

While the possibility of counsel agreeing on a range may have been 

the case in the past, now that high six- and seven-figure punitive damage 

awards have been upheld in Canada, that prospect seems unlikely. Whiten 

has let the cat out of the bag, as Rudy Buller ably describes: 

Prior to Whiten, an insurer may reluctantly have agreed to this approach. It 

would provide some certainty and, if awards were to increase, they would at least 

do so incrementally, as opposed to the jump from $50,000 to $1 million. On the 

other hand, providing such a "bracket" or "range" is tantamount to admitting 

liability for punitive damages and most insurers would not want to make such an 

admission. 

Post-Whiten, the chances of counsel agreeing on such figures are nonexistent. 

The insurer will want the range to start at "zero" and the plaintiff will 

want the upper end of the range to be at least $1 million. Juries will continue to 

be left on their own and it is possible the next award will be a quantum leap 

higher than Whiten. 78 

In Hill, Cory J stated that providing numerical guidelines to juries was 

“clearly … a matter for legislation.” 79 

76 


77 


78 

Buller, supra note 3 at paras 15-16. 

79 



Neither Binnie J nor Cory J provides much defence for the status quo 

in this area. Neither examines the obvious comparator to the process of 

assessing punitive damages: criminal sentencing. There is a close 

connection between the objectives and function of punitive damages and 

criminal sentences. The assessment of punitive damages, based on the 

judge’s or jury’s level of outrage at the defendant’s conduct, is much closer 

to the process of criminal sentencing (subject to the comments above) 

than it is to the assessment of other types of damages in a civil case. 

Punitive damages, like criminal sentences, come into play only after 

liability is established. While punitive damages are the exception and 

criminal sentences are required, they are both an assessment of the degree 

of reprehensibility of the conduct in issue. Applying their particular 

frameworks, the judge or jury must craft an appropriate penalty. 

In the criminal justice system, judges in countless cases apply section 

718.2(b) of the Criminal Code by searching reported cases for comparators. 

It is “one of the most difficult tasks a trial judge can face.” 80 Innumerable 

articles, textbooks and cases are devoted to criminal sentencing and the 

appropriate philosophical and practical processes that should be followed 

in determining a just sentence for a particular offender. Although most 

often concerned with offences where imprisonment is available as a 

potential punishment, the same processes and rules apply when a judge is 

sentencing an offender to a fine or some other non-custodial sentence. 

Generally, Canadian society has chosen a careful and deliberate process 

when meting out punishment for the behaviour it censures. It is not 

conceivable that we would leave the assessment of a criminal sentence to 

the black box of a jury and accept the “magic” number it produces. 

There are many obvious differences between the assessment of 

punitive damages and criminal sentencing. Most significantly, punitive 

damages cannot include imprisonment and the state, with its limitless 

power and resources, is not an antagonist in the proceedings. However, 

the state is still involved: its power is used to enforce the judgments of the 

court. The denunciatory and deterrent objectives of punitive damages 

serve a state purpose, not an individual one. There are only two 

mechanisms by which the state will exact punishment from its citizens: 

offences (both criminal and regulatory) proscribed by law and tried in a 

80 

R v Hogg, 2004 MBQB 16 at para 21, 181 Man R (2d) 63.


court and punitive damages. Rich systemic safeguards rule the former; 

only a very slim appellate review power constrains the latter. The strong 

correlation between punitive damages and criminal sentences has not gone 

unnoticed. Lord Justice Stephenson was troubled by this unusual role for 

a jury in Riches v News Group Newspapers Ltd: 

According to the law as it stands, the plaintiff who seeks exemplary damages asks 

a jury in a civil case, under the direction of the judge, to do what a jury in 

criminal case cannot do, namely, to assume the function which a judge has to 

perform in a criminal case (however much he might like to transfer it to the jury), 

and to punish the defendant (or defendants) by awarding a financial penalty, 

commonly and inevitably regarded as a fine. 81 

One of the tenets of the Canadian justice system is its adversarial 

nature. Judges and juries are not to make decisions in a vacuum: it is the 

vigorous and complete argument from both parties in a case that provides 

the full story needed to make a proper decision. The primary importance 

of the adversarial system in achieving justice has been emphasised by the 

Supreme Court on many occasions. In Lavallee, Rackel & Heintz v Canada 

(AG), LeBel J described the key role of “vigorous confrontation”: 

Moreover, whether it is the pride or the bane of our civil and criminal procedure, 

Canadian courts rely on an adversarial system. An impartial and independent 

judge oversees the trial. He or she must make sure that it remains fair and is 

conducted in accordance with the relevant laws and the principles of 

fundamental justice. Nevertheless, the operation of the system is predicated upon 

the presence of opposing counsel. They are expected to advance often sharply 

conflicting views. They are also responsible for introducing evidence and 

presenting argument to the court, in a spirit of sometimes vigorous 

confrontation. 82 

In Borowski v Canada (AG), Sopinka J ably described the basic importance 

of adversarial conflict: 

… a court's competence to resolve legal disputes is rooted in the adversary system. 

The requirement of an adversarial context is a fundamental tenet of our legal 

system and helps guarantee that issues are well and fully argued by parties who 

have a stake in the outcome. 83 

81 


82 

Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v 

Canada (Attorney General); R v Fink, 2002 SCC 61 at para 68, [2002] 3 SCR 209. 

83 

Borowski v Canada (Attorney General), [1989] 1 SCR 342, 57 DLR (4th) 231.


At all stages in a criminal or civil case, whether before a judge or a 

jury, the justice system depends on complete argument to reach an 

appropriate result. In a criminal case, opposing counsel make arguments 

and recommendations to the sentencing judge; he or she depends on 

counsel’s representations in order to arrive at a fit sentence. In civil and 

criminal trials, counsel make arguments to juries, advocating for the jury 

to believe them over their opponents. Only when determining the size of 

punitive damages do we leave the trier of fact alone, to make its decision 

in the absence of argument and precedent. In Whiten, Binnie J was 

uncomfortable with the trial judge’s “skeletal” 84 instruction to the jury. 

However, his recommendations for change are not substantially different. 

Juries are to be given only minimal information when deciding on the size 

of punitive damage awards: “They should be told in some detail about the 

function of punitive damages and the factors that govern both the award 

and the assessment of a proper amount.” 85 Binnie J refuses to permit juries 

to hear about previous awards in similar cases unless counsel can agree on 

an appropriate range. Juries are left to administer punishment based on 

opinion, without argument and without reference to precedent. Their 

decisions are to be based solely on their level of outrage and indignation at 

the particular facts of the case: is this not the “palm tree justice” 86 Lord 

Reid warned of in Broome? 

LeBel J took the concern about palm tree justice and Canadianised it. 

He was concerned about what was developing “under the pine trees of this 

country”, 87 as his conclusion in Whiten shows: 

The problems that occurred in the present case demonstrate that some sort of 

instruction on the range of punitive damages awards, even without counsel’s 

agreement, would have been useful. Without removing the jury’s discretion, it 

would at least communicate to them some idea of past figures and of guidelines 

that may be found in appellate or Supreme Court of Canada judgments. They 

should also be instructed clearly that an award of general damages may also 

amount to all the punishment that is necessary in a given case. Failing this, and 

84 


85 


86 

Supra note 13 at 30. See also the comments of Binnie J in Pacific National Investments 

Ltd v Victoria (City), 2004 SCC 75 at para 13: “This is not to say that it is a form of 

“‘palm tree’ justice” that varies with the temperament of the sitting judges.” There are 

many parallels between the unjust enrichment remedy and punitive damages. 

87 

Whiten SCC, supra note 1 at para 158.


in the absence of a proper application of the rationality and proportionality 

criteria, problematic awards are bound to happen. 88 

American courts have few options because of the constitutional right to a 

trial by jury in civil cases. 89 In Canada, however, the use of juries in civil 

trials is constrained in a number of ways. Notably, Canadian courts can 

require that complex cases be heard by judges. Generally, Canada has 

chosen a middle path between widespread jury use in the United States 

and heavily constrained civil jury trials in the United Kingdom. 90 There is 

no legal obstacle to requiring that a judge, and not a jury, determine the 

size of a punitive damage award. If the current system is likely to produce 

the “problematic awards” that LeBel J warns of, legislative action may be a 

prudent course. 

D. Multiple Plaintiffs 

Another problem with the law governing punitive damages in Canada 

is related to the windfall problem discussed above. How is a court meant 

to deal with a case with multiple plaintiffs? Many of the issues with this 

scenario arose in AB v South West Water Services Ltd. 91 In that case, 180 

plaintiffs sought damages from a water company for contaminating their 

drinking water with aluminum sulphate. Stuart-Smith LJ struck out the 

plaintiff’s claim for exemplary (punitive) damages partly because the 

defendants had already been convicted criminally and fined in relation to 

the conduct in issue. He was greatly troubled by the unique problems 

posed by the number of plaintiffs and the practical difficulties in assessing 

damages and apportioning them appropriately: 

There is, however, one aspect of the case which in my view makes it peculiarly 

unsuitable for an award of exemplary damages, even if the first two hoops are 

negotiated, and that is the number of plaintiffs. Unless all their claims are 

quantified by the court at the same time, how is the court to fix and apportion 

the punitive element of the damages? Should the court fix a global sum of £x and 

divide it by 180, equally among the plaintiffs? Or should it be divided according 

88 


89 

US Const amend VII. 

90 

See the comments of McLachlin CJC in “Joint Meeting of The American College of 

Construction Lawyers and The Canadian College of Construction Lawyers” (2005) 39 

CLR (3d) 4 at 17-20. 

91 

AB v South West Water Services Ltd, [1993] QB 507, [1993] Env L R 266 [SW Water 

cited to QB].


to the gravity of the personal injury suffered? Some plaintiffs may have been 

affected by the alleged oppressive, arbitrary, arrogant and high-handed behaviour, 

others not. If the assessment is made separately at different times for different 

plaintiffs, how is the court to know that the overall punishment is appropriate? 

The point was touched on in Riches v News Group Newspapers, in the judgment of 

Stephenson L.J. That was a libel case with 10 plaintiffs where a very large sum 

had been awarded as exemplary damages; the judge had not directed the jury 

how they were to deal with the problem of a number of plaintiffs. Stephenson 

L.J. commented that the problem “furnishes yet another complication 

engendered by the survival of the right to exemplary damages and another 

argument in favour of abolishing the right.” 92 

In Canada, one exceptionally complicated case dealt with the precise 

problems formulated by Stuart-Smith LJ above. In Mainland Sawmills Ltd v 

USW Union Local 1-3567, thirty-three plaintiffs were awarded punitive 

damages in an action against thirty-one defendants. 93 The case was tried 

before a judge. Members of one union local had illegally occupied a 

sawmill, the workplace of another union local. Through violence and 

intimidation, they closed down the sawmill. Damages were awarded for 

trespass, assault and battery. The trial judge, Fisher J, calculated what she 

thought was an appropriate global figure for punitive damages: $323,000. 

She then categorised the plaintiffs and defendants into one of several 

groups. The plaintiffs received either $15,000, $7,000 or $3,000 in 

punitive damages, based on the degree of harm they had suffered. The 

defendants were placed into categories, which were collectively assigned 

40%, 30%, 20% or 10% of the total liability. 

Fisher J’s decision may well have been the most appropriate and just 

response to the facts of the case, but it strays away from the objectives of 

punitive damages laid out in Whiten. It also demonstrates well the practical 

difficulty and complexity that ensues from this type of case. The 

apportionment of punitive damages based on the harm suffered seems 

just, but is it really a matter of compensation, either through pecuniary or 

non-pecuniary compensatory damages? Collectively, the defendants were 

required to pay $323,000 in punitive damages. How are the objectives of 

denunciation, deterrence and punishment furthered through the 

apportionment of damages to the plaintiffs according to the harm they 

92 

Ibid at 527. 

93 

Mainland Sawmills Ltd v USW Union Local 1-3567, 2007 BCSC 1433, 52 CCLT (3d) 

161 [Mainland Sawmills].


suffered? In this case, it seems that the distribution of punitive damages 

was an afterthought: now that we have determined that punitive damages 

should be awarded, what are we going to do with the money? Moreover, 

the apportionment of damages to thirty-three different plaintiffs required 

Fisher J to examine all of their individual circumstances. This huge task 

would be even more cumbersome if there had been 180 plaintiffs, as in 

SW Water. 94 What happens in a class action with thousands of plaintiffs? 

Whiten also does not address the further problems raised by similar 

cases being raised in series. If a defendant is liable for conduct meriting 

punitive damages, should those damages only go to the first plaintiff to 

bring his or her case forward? Should the defendant be liable for punitive 

damages in subsequent cases on the same issues? It is difficult to justify 

awarding punitive damages more than once for the same conduct, if we 

bear in mind the objectives of deterrence, denunciation and punishment. 

However, granting punitive damages only to the plaintiff with the fortune 

of being the first to bring his or her case to a conclusion returns us to the 

windfall problem examined above. Hypothetically, the first plaintiff may 

have the easiest case to prove, or be the least complicated, and therefore 

may conclude before others. Perhaps the second plaintiff was the victim of 

worse conduct, requiring lengthier pre-trial processes and more issues to 

resolve at trial. What is the philosophical justification for granting the 

windfall to the quickest out of the gate? What happens if a greater degree 

of misconduct is proven at the second trial than the first? Do we award 

punitive damages twice? Do we award punitive damages only for that 

portion of the misconduct not covered by the award granted to the first 

plaintiff? How is a judge to instruct a jury in this situation if he or she is 

unable to refer to previous cases? 

The case of HO v MacDougall dealt with some of these issues in as just 

a fashion as possible under the present legal framework. 95 The defendant 

MacDougall was employed for many years as a provincial Corrections 

Officer. He sexually abused many young inmates over more than twenty 

years. A number of civil suits were launched against MacDougall. The 

court severed the issue of punitive damages from a number of cases and 

consolidated them in MacDougall. Joyce J determined a fit global sum to 

meet the objectives of punitive damages and awarded $10,000 to thirty 

94 


95 

HO v MacDougall, 2006 BCSC 180, 38 CCLT (3d) 253.


different plaintiffs. Unlike Fisher J in Mainland Sawmills, Joyce J concluded 

that “it would not be appropriate to award punitive damages to the various 

plaintiffs in differing amounts depending upon my view of the severity of 

the sexual assault in each particular case.” 96 He did not wish to engage in 

the complicated exercise of determining the relative severity of specific 

sexual acts inflicted on the various plaintiffs. In addition, he found that 

this exercise would not advance the objectives of punitive damages: “the 

fact that the particular acts of misconduct may have had greater or lesser 

impact on the lives of the plaintiffs is something to be considered in 

determining the compensation to which each plaintiff is entitled. But I am 

not concerned with compensation. I am concerned with punishment.” 97 

Thirty victims were compensated through the award in MacDougall, 

but more victims existed. MacDougall was also convicted criminally for his 

actions and sentenced to a four-year term of imprisonment. Joyce J did not 

account for this criminal penalty when assessing punitive damages as none 

of the plaintiffs in his matters were victims in the incidents prosecuted 

criminally. What happens to those who were the victims in the criminal 

case, or others who may come forward in the future? In MacDougall, Joyce 

J determined what he thought was an appropriate global punishment in 

the form of punitive damages. If MacDougall has already been punished 

appropriately, it would be unfair for any subsequent plaintiffs to be 

awarded punitive damages, even though the abuse they suffered may have 

been as bad or worse than those who were apportioned $10,000. Again, 

the windfall problem arises: there is no reasoned basis for awarding 

punitive damages to the first claimants other than simply because they 

were first. One case could be put forward later than another for a 

multitude of reasons not related to the merits of the claim. 

One further problem identified by David Owen is that in cases of 

mass torts, early awards of punitive damages may deprive subsequent 

claimants of compensatory damages. 98 Owen uses litigation against 

asbestos companies as an example, where large, early punitive damage 

awards have depleted the assets of a number of companies. When 

subsequent plaintiffs come forward, the company is bankrupt and they are 

96 


97 

Ibid. 

98 

Owen, supra note 54 at 393-94.


denied even compensation while the early plaintiffs benefit from large 

punitive awards. 

V. POTENTIAL SOLUTIONS 

Different jurisdictions have tried different solutions to the many 

problems posed by punitive damages. This section will review a number of 

solutions, tested and untested, and provide recommendations on what 

action should be taken to improve the law in relation to punitive damage 

awards. 

A. Class actions 

Many cases attracting punitive damage claims are class actions. 

Because there is such a high threshold of misbehaviour for the imposition 

of punitive damages, it is often the case that defendants liable for punitive 

damages have engaged in a pattern of misconduct, directed at more than 

one plaintiff. There are many reported cases of class actions where 

punitive damages are also pleaded. 99 Class actions are the vehicle most 

suited to adjudicating mass tort claims. Since the decision of the Supreme 

Court in Rumley v British Columbia, it is beyond doubt that punitive 

damages can be certified as a common issue in class actions. 100 

The nature of class actions is such that an unsuccessful defendant can 

expect to pay a substantial award of damages. Punitive damages can be 

added on top of compensatory damages. However, the objectives of 

punitive damages can often be satisfied in a class action simply through a 

general award of damages. Consider the case of BMW v Gore: Mr. Gore 

suffered damage of approximately $4,000 to his BMW when the company 

re-touched the factory paint after damage in shipping. 101 During the trial, 

it was established that BMW had secretly re-touched the paint of 

99 

See e.g. Walls et al v Bayer Inc, 2005 MBQB 3, [2006] 4 WWR 720 (consumers of a 

cholesterol-lowering drug); Brimner v Via Rail Canada Inc, 50 OR (3d) 114, 1 CPC 

(5th) 185 (passengers in a train derailment); Wuttunee v Merck Frosst Canada Ltd, 2008 

SKQB 229, 312 Sask R 265 (consumers of Vioxx); Chalmers v AMO Canada Company, 

2010 BCCA 560, 504 WAC 186 (purchasers of a dangerous contact lens solution); 

Griffiths v British Columbia, 2003 BCCA 367, 19 CR (6th) 367 (victims of sexual 

assault in a foster home). 

100 

Rumley v British Columbia, 2001 SCC 69, [2001] 3 SCR 184 at para 34. 

101 

BMW v Gore, supra note 41.


approximately 1,000 other cars in the same fashion. If BMW were 

required to compensate only Mr. Gore for their misbehaviour, a $4,000 

penalty would not sufficiently punish them or deter them from such 

conduct in the future. Extrapolating from Mr. Gore’s $4,000 loss, the 

award of $4,000,000 is simple: it accounts for the 1,000 other cars that 

BMW had secretly refinished. 

A $4,000,000 award to Mr. Gore is an unearned windfall. It certainly 

punished BMW and deterred them from future misconduct. However, if 

the $4,000,000 had been divided 1,000 times to deserving plaintiffs, the 

case would not likely have generated a public sensation and outraged 

newspaper headlines. 102 Compensation does not generate outrage; public 

outrage stems from the idea that BMW should pay one person $4,000,000 

because of minor damage to his car. Ironically, because of the enormity of 

the award of punitive damages, the Supreme Court of Alabama reduced 

the punitive damages to $2,000,000. The United States Supreme Court 

later overturned even that smaller award and sent the case back to the 

Alabama Supreme Court, which in turn ruled that $50,000 was a 

constitutionally-permissible award. 103 In the majority opinion, the United 

States Supreme Court imposed limits on punitive damage awards under 

the due process clause of the Fifth Amendment. 104 In the end, an award of 

punitive damages that appeared scandalous not only allowed BMW to 

escape substantial punishment for its misdeeds, but imposed a new 

constitutional limit on punitive damages in the United States. The public 

policy objectives underlying punitive damages were harmed through 

excess. The use of a class action would not have attracted public scorn and, 

ultimately, would have accomplished the goal in a more defensible 

fashion. The same logic would have applied to McDonald’s, the most 

notorious case of all: 700 other people had suffered serious burns because 

of McDonald’s coffee. 105 One can only speculate on how far public respect 

102 

See e.g. Richard J Mahoney, “Act Now to Curb Multiple Damage Suits”, Letter to the 

Editor, The New York Times (18 October 1995); “BMW case drives litigation reforms” 

The Washington Post (30 May 1995); James Kilpatrick, “Punitive damages take BMW 

for a ride: The system is loony” Spartanburg Herald-Journal (29 September 1995). 

103 

BMW of North America, Inc v Gore, 701 2d 507 (1997 Ala Sup Ct)(available on WL). 

104 

BMW v Gore, supra note 41 at 1595. 

105 

Supra note 42.


for punitive damages was diminished by that case. A class action avoids the 

despised windfall problem. 

B. Raised standard of proof 

The majority of American states that have legislated punitive damage 

reforms have raised the standard of proof for punitive damage liability to 

“clear and convincing evidence” from the old balance of probabilities 

standard. This standard is not unknown to Canadian law. 106 However, 

how such a standard of proof could practically be applied is questionable. 

For example, the Minnesota statute raising the standard of proof for 

punitive damages says: 

Punitive damages shall be allowed in civil actions only upon clear and convincing 

evidence that the acts of the defendant show deliberate disregard for the rights or 

safety of others. 107 

What happens if a plaintiff is able to prove the required facts, but only 

to the satisfaction of the balance of probability standard? The plaintiff 

would be left with a scenario where the court, when determining liability, 

finds that the defendant did X. However, when the court is assessing 

damages, it does not find that the defendant did X. The anomaly in these 

findings would damage public confidence in the justice system. Moreover, 

there does not appear to be a legitimate basis to raising the standard of 

proof beyond simply limiting the availability of punitive damages. The civil 

justice system functions well using the balance of probabilities standard. 

There is nothing unique about punitive damages requiring a higher 

standard. If the legislature’s goal is to reduce punitive damage awards, 

other means can be chosen that avoid the distressing anomaly described 

above. 

C. Standard of appellate review 

Post-Whiten, appellate courts may interfere with an award of punitive 

damages if it “exceeds the outer boundaries of a rational and measured 

response to the facts of the case.” 108 When combined with the 

inscrutability of jury awards, this standard does not leave much room for 

106 

See e.g. Penner v Niagara (Police Services Board), 2010 ONCA 616, 102 OR (3d) 700. 

107 

Minn Stat §549.20(1)(a) (2011). 

108 

Whiten SCC, supra note 1 at para 76.


appeal courts to intervene. Several American jurisdictions have removed 

barriers to appellate intervention, specifically legislating that appeal courts 

owe no deference to trial-level decisions on punitive damages and allowing 

them to examine the issue anew. 109 As jury decisions are made in a black 

box, these laws appear to be designed to give appeal courts some foothold 

in cases where the jury award is suspect on its face. 

In Canada, such a change would be a strong departure from the 

traditional role of appellate courts. In Housen v Nikolaisen, Iacobucci and 

Major JJ delineated the general role of appellate courts in the Canadian 

legal system: 

…the primary role of appellate courts is to delineate and refine legal rules and 

ensure their universal application. In order to fulfill the above functions, 

appellate courts require a broad scope of review with respect to matters of law. 110 

We reiterate that it is not the role of appellate courts to second-guess the 

weight to be assigned to the various items of evidence. If there is no palpable and 

overriding error with respect to the underlying facts that the trial judge relies on 

to draw the inference, then it is only where the inference-drawing process itself is 

palpably in error that an appellate court can interfere with the factual 

conclusion. The appellate court is not free to interfere with a factual conclusion 

that it disagrees with where such disagreement stems from a difference of 

opinion over the weight to be assigned to the underlying facts. 111 

Expanding the ability of appellate courts to over-rule trial-level decisions 

on punitive damages would provide a safeguard against improper awards, 

but it would come at the cost of substantially redefining their role. The 

present standard of review is substantial and meaningful, but only when 

the appellate judges have intelligible reasons, which must come from a 

judge. It is difficult to understand how appellate judges are meant to 

evaluate whether a jury award is rational and measured without knowing 

the reasoning processes that led to the award. In all facets of the Canadian 

legal system, juries are entitled to give whatever weight to the evidence they 

feel is appropriate. If appellate courts have no reasons to justify an award 

of punitive damages, any time they overturn an award, it must necessarily 

be because they disagree with the jury on the weight that should be given 

to particular pieces of the evidence. In Whiten (CA), Finlayson JA 

overturned the jury award for the following reasons: 

109 

See Appendix II. 

110 

Housen v Nikolaisen, 2002 SCC 33 at para 9, [2002] 2 SCR 235. 

111 

Ibid at para 23.


I do not propose to justify my intervention on any basis other than that I think 

the award is simply too high. The conduct of the appellant justifying the making 

of an award of punitive award is clearly reprehensible and I will not attempt to 

excuse it. However, awards for punitive damages against insurers based on bad 

faith handling of insurance claims are traditionally in the range of $7,500 to 

$15,000, well below the level of this award. I can think of no justification for 

such a radical departure from precedent as is represented by the award of this 

jury. 112 

Finlayson JA’s rationale is a blatant re-weighing of the evidence in a 

fashion proscribed by Iacobucci and Major JJ in Housen v Nikolaisen. In 

addition, it is a curious step to criticise the jury’s award for being wildly 

outside the accepted range of punitive damages when they have been 

specifically prohibited from knowing that information. If punitive damage 

awards are to be constrained based on acceptable ranges, it seems prudent 

to provide that range to the jury at the first opportunity. Finlayson JA 

appears to have shown no deference to the trial-level decision and has 

simply calculated the punitive damages anew according to his assessment 

of the evidence: a process very similar to the American laws described 

above. 

Changing the role of appellate courts in the American fashion would 

be impractical and costly and undermine the legitimacy of the trial 

process. If punitive damages are to be assessed anew on appeal, the triallevel 

decision on that point is not going to be of much significance. The 

present standard of review functions well when appellate courts have the 

benefit of reasons, which can only be provided by a judge. 

D. Judges to decide the size of punitive damage awards 

Some measure of intelligibility is needed to provide appeal courts with 

a foothold when reviewing trial-level decisions on punitive damages. No 

American jurisdiction has enacted a law requiring the assessment of 

punitive damages to be done by a judge instead of a jury, likely because of 

the Seventh Amendment constitutional implications. Instead, expanded 

appellate powers of review, as described above, seem to be a back-door 

method to have judges examine punitive damage awards. In Canada, we 

are not constrained by the American constitutional limitations; it is open 

112 



to the provincial legislatures to require that judges determine the size of 

punitive damage awards. 

A jury in a criminal trial determines guilt; the judge sentences the 

convicted. A jury in a civil trial could determine liability, including liability 

for punitive damages, and a judge could consider the appropriate award. 

Since Hill, we have definitively entered an era of punitive damage awards 

into the hundreds of thousands and beyond. Such awards are made not 

just against large corporations, as in Hill and Whiten, but even against 

individuals, as in MacDougall. Much is at stake for both the plaintiff and 

the defendant, yet the size of punitive damage awards is left to the jury 

with minimal instruction, never mind full argument from counsel. A 

judge can consider precedent and tailor an award that is appropriate to the 

circumstances of the case. Awards from judges are open to appellate review 

and public scrutiny. 

Removing the assessment of punitive damages from the purview of the 

jury does not upset its traditional, time-honoured role as the arbiter of 

fact. If the jury determines that punitive damages are appropriate, a 

hearing could be held, akin to a sentencing hearing in the criminal justice 

system. The additional burden on the court system would be minimal: 

there is near-universal agreement that punitive damages are an exceptional 

remedy to be applied rarely. 

E. Ranges of awards to be provided to juries 

If juries continue to determine the size of punitive damage awards, 

they could be instructed on the range of awards that have been made in 

similar cases in the past. In Whiten, Binnie J acknowledged that the rule 

prohibiting juries from knowing commonly-accepted ranges of awards 

“may have to be reexamined in future.” 113 As discussed above, it is difficult 

to understand the rationale behind this prohibition. In the criminal 

justice system, like crimes should attract like penalties. There seems little 

reason not to extend this principle of fairness to the assessment of 

punitive damages in the civil system. A properly-instructed jury could be 

informed of the range of awards made in the past, with the caveat that it is 

not bound to stay within that range. The size of punitive damage awards 

113 



would thereby be capable of evolution. Such changes would more likely be 

incremental, instead of the giant leaps seen in Hill and Whiten. 

F. Caps on punitive damages 

Numerous American states have limited the size of punitive damage 

awards, most commonly by capping the award at twice or three times the 

amount of compensatory damages. 114 Generally, few Canadian cases would 

stray outside these boundaries. The punitive damages in Whiten itself were 

approximately three times the compensatory amount. However, rigid rules 

can produce injustices. Just as minimum sentences in the criminal context 

can, at times, be inappropriate, limits on punitive damages may at times 

obstruct their three objectives. Returning again to BMW v Gore, it would 

be difficult to see the punitive or deterrent effect on BMW if they were 

required to pay Mr. Gore only three times his damages: $12,000. 

G. Punitive damages could be allocated to public funds 

One method of eliminating the windfall problem is to divert awards of 

punitive damages to public funds. These awards, by definition, are 

undeserved windfalls for the plaintiffs. Many of the problems that arise 

with multiple plaintiffs are eliminated if we abandon the notion that the 

first plaintiff out of the gate is the one to collect the prize. Second, there is 

a public perception that there is an abundance of frivolous lawsuits by 

plaintiffs seeking such a windfall. Although the reality may not correspond 

with this perception, it is more than a theoretical risk: the pants lawsuit of 

Pearson v Chung is but one dramatic example. Moreover, there is value in 

preserving public confidence in the system of civil justice. If punitive 

damage awards were diverted to public funds, it would immunize plaintiffs 

from suspicion of their motives and perhaps enhance the apparent 

legitimacy of their claims. 

The jury in Riches returned to ask if they could allocate punitive 

damages to a police charity instead of to the individual plaintiffs. 115 In 

principle, there is no reason why punitive damages, which are already so 

very much like a criminal fine, could not be diverted to some public good. 

In most cases, it would not be difficult to conceive of a charity rationally 

114 

See Appendix II. 

115 



related to the offensive conduct that brought about the award in the first 

place. By definition, the plaintiff does not need the punitive damages; he 

or she is meant to have been compensated through general damages. 

Apportioning punitive damages to an appropriate charity surely serves the 

public good and furthers the objectives of punitive damages. It may also 

provide further vindication to a wronged plaintiff if the tortfeasor is 

required to contribute to a cause that aims to prevent similar wrongs in 

the future. 

VI. WHAT SHOULD BE DONE? 

Three basic actions by provincial legislatures will resolve many of the 

problems associated with punitive damage awards described in this paper. 

First, criminal convictions should not be accounted for when assessing 

punitive damages. There is a risk that a defendant will essentially be 

punished twice for the same conduct, but that risk is small. It is rare that a 

criminal conviction will be based on the same facts that will be proven in a 

civil trial. In most cases, the civil liability will encompass a broader range 

of conduct than the criminal liability. The objectives of the criminal law 

are similar but not the same as the objectives of punitive damages. It is not 

safe to assume that a criminal conviction will necessarily achieve the goals 

of punitive damages. Also, there is no viable method of accounting for the 

vagaries of process that determine which of two parallel cases is decided 

first. 

Second, judges and not juries should determine the appropriate size of 

punitive damage awards. Jury awards are inscrutable and therefore 

exceedingly difficult for appellate courts to review properly. The increased 

magnitude of punitive damage awards in recent years means that this 

portion of a trial can have very severe consequences for a defendant. After 

a jury or judge has determined that punitive damages are warranted, the 

judge should hold a hearing on the quantum of the award. He or she will 

make a decision the way that it ought to be made: with the benefit of 

argument from counsel and in view of precedent. This approach will not 

result in rigid ranges to be applied in specific cases: judges should be 

guided by, not bound by, awards that have come before. 

Third, punitive damage awards should not go solely to the plaintiffs. 

The redirection of these awards to another beneficiary eliminates 

improper motives, suspicion of impropriety and the multiple plaintiff


problem. It enhances public confidence in the civil justice system and 

serves the public good by exacting payment from wrongdoers and 

redirecting the money towards some social good. Some portion of the 

punitive damages should still go to the plaintiff for two reasons. First, it is 

a reward for the public service of exposing bad conduct, as described by 

Binnie J in Whiten. 116 Second, in order to arrive at the appropriate size of 

award, the judge needs the benefit of the adversarial process, which is itself 

dependent on two interested parties. Punitive damage awards should, 

where appropriate, be directed mostly to a relevant charity. If no such 

charity can be found, the bulk of the award should be paid to the province 

to a fund for general public use. The Criminal Property Forfeiture Act 

established just such a scheme in Manitoba: seized assets are sold and the 

proceeds go into a general fund designed to compensate victims, remedy 

unlawful activity and promote safer communities. 117 

Punitive damages serve a unique function in the system of civil law. 

Their persistence through centuries of opposition tells us something of 

their value. In Whiten, the Supreme Court attempted to modernize the law 

but has failed to go far enough to ensure that public confidence in the 

system of civil justice stays strong and to ensure that the law is applied 

fairly and consistently with the principles of fundamental justice upon 

which it is built. The provincial legislatures should act to solidify the law 

to ensure that this valuable tool does not disappear for want of legitimacy. 

116 

Whiten SCC, supra note 1 at paras 39-40. 

117 

Supra note 69, s 19(4).


VII. 

APPENDIX I – REPORTED MANITOBA CASES WITH 

PUNITIVE DAMAGE AWARDS 

Year Case Name PD Award 

2011 Lounsbury v Dakota 

Tipi First Nation 

2011 MBQB 96 

2010 CNR v Huntingdon 

REIT 

2010 MBQB 195 

2009 Johnson v BFI 

2009 MBQB 215 

2007 Jensen v Stemmer 

2007 MBCA 42 

2006 Halligan v Liberty 

Tax 

2006 MBQB 75 

2003 Auch v Wolfe 

2003 MBQB 91 

2002 Brown & Root v 

Aerotech 

2002 MBQB 229 

2001 Mellco Developments 

v Portage La Prairie 

2001 MBQB 236 

Uni-Jet Industrial 

2001 Pipe v Canada (AG) 

2001 MBCA 40 

Laufer v Bucklaschuk 

1999 

181 DLR 4th 83 

Mining & Allied 

Supplies v 2390869 

1994 

Manitoba Ltd 

96 Man R 2d 91 

Other 

Damages 

Cause of 

Action 

$10,000 $143,965 Wrongful 

dismissal 

$2,500 $2,118,626 Breach of 

contract, 

trespass 

$5,000 $6,762 Breach of 

contract 

$25,000 $8,800 False 

imprisonment 


contract 

$50,000 $176,763 Fraudulent 

Misrep 

$50,000 $1,681,476 Breach of 

contract 


contract 

$20,000 $45,000 

Misfeasance in 

public office 

Judge 

or 

Jury 

Judge 

Judge 

Judge 

Jury 

Judge 

Judge 

Judge 

Judge 

Judge 

(CA) 

$500,000 $2,160,000 Defamation Jury 

$50,000 $382,760 Conversion Judge


VIII. APPENDIX II – PUNITIVE DAMAGE RESTRICTIONS IN 

AMERICAN STATES 

A. States that Cap Punitive Damage Awards 

Alabama: General cap of $250,000. 

Alaska: General cap of the greater of $500,000 or three times 

compensatory damages 

Arkansas: General cap of the greater of $250,000 or three 

times compensatory damages, not to exceed $1,000,000. 

Colorado: general cap equal to amount of compensatory 

damages 

Connecticut: Punitive damages in cases of product liability are 

limited to twice compensatory damages 

Florida: General cap of the greater of $500,000 or three times 


Georgia: General cap of $250,000 

Idaho: general cap of the great of $250,000 or three times 


Illinois: general cap of three times compensatory damages 

Indiana: general cap of the greater of $50,000 or three times 


Kansas: General cap of the lesser of the defendant’s annual 

income or $5,000,000 

Mississippi: General Cap of 2% of the defendant’s net worth 

Montana: General cap of the lesser of $10,000,000 or 3% of 

the Defendant’s net worth 

North Carolina: General cap of the greater of $250,000 or 

twice compensatory damages 

Nevada: general cap of the greater of $300,000 or three times 


New Jersey: General cap of the greater of $350,000 or five 

times compensatory damages 

Ohio: general cap of the lesser of $350,000 or twice 

compensatory damages


 

 

 

 

Oklahoma: three caps based on the degree of misconduct: the 

great of compensatory damages or 1000,000, the greater of 

five times compensatory damages, or $500,000, or unlimited 

Oregon: General cap of three times compensatory damages 

Tennessee: General cap of the greater of $500,000 or twice 


Texas: General cap of the greater of $250,000 or twice 


B. States Requiring Allocation of Awards 

Alaska: 50% of punitive damage awards shall go to the state 

Georgia: 75% of punitive damage awards shall go to the state 

Indiana: 75% of punitive damage awards shall go to the state 

Iowa: if the conduct of the defendant was not directed 

specifically at the claimant, 75% of punitive damage awards 

are paid into a state fund “for purposes of indigent civil 

litigation programs or insurance assistance programs.” 

Missouri: 50% of punitive damage awards shall go to the state 

“tort victims’ compensation fund”. 

C. States Permitting or Requiring Bifurcation of Trials 

Alaska: If liability for punitive damages is established, the 

same fact finder shall determine the amount in a separate 

proceeding 

Arkansas: Upon request, the finder of fact first determines if 

compensatory damages are warranted. In a separate 

proceeding, it determines if punitive damages are warranted 

and in what amount. 

Colorado: A claim for punitive damages is permitted only 

after discovery has established “prima facie proof of a triable 

issue:” on the underlying claim. 

Delaware: Punitive damages in medical negligence can only be 

awarded in a separate proceeding after determining liability 

for compensatory damages 

Georgia: Quantum of punitive damages must be determined 

in aa separate proceeding from liability for punitive damages. 

Idaho: in order to put forth a claim for punitive damages, the 

plaintiff must establish a “reasonable likelihood of proving


facts at trial sufficient to support an award of punitive 

damages” at a separate hearing 

Illinois: in order to put forth a claim for punitive damages, 

the plaintiff must establish a “reasonable likelihood of proving 

facts at trial sufficient to support an award of punitive 

damages” at a separate hearing. Upon request of the 

defendant, issues relating to punitive damages must be dealt 

with at a separate hearing subsequent to the determination of 

liability and the award of compensatory damages. 

Kansas: the size of punitive damage awards is determined at a 

separate hearing. 

Minnesota: the size of punitive damage awards is determined 

at a separate hearing. 

Mississippi: Liability for punitive damages established at a 

separate proceeding. 

North Carolina: upon motion of the defendant, liability for 

punitive damages shall be determined at a separate 

proceeding. 

Nevada: size of punitive damage awards shall be determined 

in a separate proceeding. 

New Jersey: upon the defendant’s request, liability for and 

quantum of punitive damages are determined at a separate 

proceeding. 

Ohio: upon the defendant’s request, liability for and quantum 

of punitive damages are determined at a separate proceeding. 

Oregon: the trial judge must review all punitive damage 

awards independently for rationality. 

Tennessee: Liability for and quantum of punitive damages are 

automatically bifurcated from the main proceeding. 

D. States requiring the “clear and convincing” standard of 

proof 

Alabama 

Alaska 

Arkansas 

Florida 

Georgia 

Idaho


Illinois 

Indiana 

Iowa 

Kansas 

Minnesota 

Mississippi 

Montana 

North Carolina 

North Dakota 

New Jersey 

Ohio 

Oklahoma 

Oregon 

Tennessee 

Texas 

E. States that have banned punitive damages 

Illinois (for legal and medical malpractice only) 

Louisiana 

New Hampshire 

Washington


Leveling the Playing Field: 

Severance and Access to Justice at the 

Manitoba Court of Appeal 

D A Y N A M . S T E I N F E L D 

“The most advanced justice system in the world is a failure if it does 

not provide justice to the people it is meant to serve.” 

– Chief Justice Beverley McLachlin 1 


A 

ccess to justice is one of the most serious challenges facing the 

Canadian legal system today. The reality of litigation today is that 

the cost of accessing justice is prohibitive for many Canadians, 

resulting in an unlevel playing field where only those who can afford it can 

have their day in court. As the words of Chief Justice McLachlin above 

indicate, this represents a failing of the Canadian legal system. While 

access to justice is a concern for the legal system as a whole, it is a 

 

J.D. (Manitoba). Articling student-at-law at Raven, Cameron, Ballantyne & Yazbeck, 

LLP in Ottawa. In 2013, the author will be clerking at the Supreme Court of Canada. 

The author wishes to thank Melanie Bueckert and Keith Lenton for their assistance in 

the preparation of this article. The views expressed herein are her own and do not 

necessarily reflect the views or opinions of Raven, Cameron, Ballantyne & Yazbeck 

LLP or of the Supreme Court of Canada. 

1 

Remarks of the Right Honourable Beverley McLachlin, P.C. Presented at the Empire 

Club of Canada Toronto, March 8, 2007 “The Challenges We Face,” online: 

Supreme Court of Canada .


significant issue in the realm of civil litigation where many plaintiffs may 

choose to not seek justice because it is simply unaffordable. The Civil 

Justice Reform Project of 2007 noted that “cost and delay continue to be 

cited in national and provincial reports as formidable barriers that prevent 

average Canadians from accessing civil justice.” 2 Recognizing this, a push 

for change is underway in a number of different venues and through 

different means. The common law has become one such venue. For the 

first time, the Manitoba Court of Appeal commented on access to justice 

in a decision in O’Brien v Tyrone Enterprises, 3 a case that considered the test 

for severance of the issues of liability and damages in a civil proceeding. 

While this was a relatively uncomplicated appeal on a civil procedure issue 

that could have been dismissed on standard of review alone, the Manitoba 

Court of Appeal took the opportunity to give the case full consideration. 

This commentary from the court is an important statement on the need 

for access to justice and represents willingness from Manitoba’s top court 

to evolve precedent so that modern challenges of litigation may be better 

met by the law. This comment argues that not only does the O’Brien 

decision demonstrate that the Manitoba Court of Appeal is well-attuned 

to the realities of civil litigation, but the decision also brings Manitoba in 

line with the weight of authority from other provinces. Given that the 

problem of access to justice has arguably reached near-crisis levels, the 

court’s decision in O’Brien is a necessary and proper evolution of the law 

of civil procedure. 

II. CASE BACKGROUND 

O’Brien v Tyrone was an appeal from a decision of a motions judge that 

granted the plaintiff’s request for severance of the civil trial on liability and 

damages. A decision to grant such an application is a rarity in Manitoba, 

as the seminal decision of Justice Kroft in Investors Syndicate 4 held that it is 

2 

Ontario, Ministry of the Attorney General, Civil Justice Reform Project, Findings & 

Recommendations,(Ontario: Ministry of the Attorney General, 2007) at Appendix A, p 

1 [the Osborne Report]. 

3 

O’Brien v Tyrone Enterprises Ltd, 2012 MBCA 3, 341 DLR (4th) 618 [O’Brien]. 

4 

Investors Syndicate v Pro-Fund Distributors Ltd (1980), 12 Man R (2d) 104 (available on 

WL Can) (QB); aff’d (1981), 12 Man R (2d) 101 (available on WL Can) (CA), 

[Investors Syndicate].

Levelling the Playing Field 331 

the “normal preference of the court … to hear and determine all issues at 

one time and to discourage the piecemeal trial of actions.” 5 However, 

Justice Kroft recognized that in “appropriate circumstances” 6 severance 

may be granted, and set out considerations to be weighed by a judge in the 

exercise of his or her discretion. These considerations are: 

(1) A party ought not to be harassed at the instance of another by an unnecessary 

series of trials; 

(2) There must be some reasonable basis for concluding that the trial of the issue 

or issues sought to be severed will put an end to the action; 

(3) An order for severance should hold the prospect that there will be a 

significant saving of time and expense; 

(4) Conversely, severance should not give rise to the necessity of duplication in a 

substantial way in the presentation of the facts and law involved in later 

questions; 

(5) Nothing should be done which might confuse rather than help the final 

solution of the problem; 

(6) A plaintiff who forms an action to suit his convenience will seldom be 

granted the right to sever, if the defendant objects. The objection of a plaintiff to 

a defendant’s application does not bear such heavy significance. 7 

In the 2008 case of Dmytriw v Odim, Justice Simonsen reviewed the 

Investors Syndicate factors and the case law since the factors were established 

and concluded that in Manitoba, severance is only granted in an 

“exceptional case.” 8 

Despite the high bar for severance, Justice Clearwater, the motions 

judge in O’Brien, held that the plaintiff had made out such an exceptional 

case. The master at first instance in O’Brien dismissed the plaintiff’s 

request, but on the fresh appeal to Justice Clearwater, the decision of the 

master was overturned. In coming to this conclusion, Justice Clearwater 

gave significant weight to the issue of access to justice. The plaintiff in 

O’Brien was injured in April of 1997 upon falling down the stairs in the 

defendant’s rental property. The plaintiff attended the property for a party 

hosted by the defendant’s tenant. The plaintiff alleges that the fall 

occurred because the stair banister became detached from the wall. As a 

result of the fall, the plaintiff sustained significant injuries and has been 

5 


6 

Ibid. 

7 


8 

Dmytriw (next friend of) v Odim, 2008 MBQB 12 at para 11, 226 Man R (2d) 284 

[Dmytriw].


unable to work since the time of the accident. There are two discrete legal 

issues matters which need to be resolved in order to dispose of the case. 

First, the issue of liability must be resolved. It is contested because the 

defendant claims that the plaintiff had consumed a large quantity of 

alcohol prior to her fall, and thus was contributorily negligent. Second, if 

liability is established, the plaintiff’s damages must be quantified, and the 

plaintiff stated in affidavit evidence that proving damages would be a 

costly venture as it would necessitate retaining medical and actuarial 

experts. The plaintiff further stated that her lawyers are representing her 

on a contingency basis and are unable to front the costs for determining 

damages unless the plaintiff was successful on the issue of liability. 

Without severance, the costs of going forward with the proceedings would 

therefore fall to the plaintiff. Yet, the plaintiff is impecunious, having 

stated in her affidavit that between for the years of 2005 – 2007, she 

earned $7000 - $7400 a year from CPP disability, and has no other source 

of income. 

Given the plaintiff’s impecuniosity, Justice Clearwater held that access 

to justice was a proper consideration in the determination of the severance 

issue. Justice Clearwater referred to the principles in Investors Syndicate and 

went on to hold that: 

… this is an "access to justice" issue. Litigants in the economic position of this 

plaintiff, absent any evidence or suggestion that their claim is frivolous or 

vexatious or otherwise without merit, have little or no ability to fund the cost of 

litigation in today's economy. I am mindful that if the plaintiff is successful on a 

trial of the issue of liability, the expenses for expert witnesses will be necessary. 

However, if the defendant is successful on the issue of liability, it will not likely 

need to incur the further costs it would otherwise incur on the issue of damages. 

However, although the plaintiff's current counsel is not (at least at this point in 

time) prepared to fund these disbursements on a contingency basis absent a 

favourable finding of liability, it is likely that the plaintiff would be able to retain 

him or other counsel on a further contingency basis if the defendant has been 

found liable. 9 

On appeal, the defendant argued that the motions judge had placed 

undue weight on the financial hardship of the plaintiff and had not given 

proper consideration to the Investors Syndicate factors. Chief Justice Scott 

summarized the reasons of the court, that 

9 

O’Brien v Tyrone Enterprises, 2010 MBQB 229, 259 Man R (2d) 99 at para 18 [O’Brien 

motions decision].


[f]or many years, it has been well understood that severance of a civil trial on 

liability and damages in Manitoba would only be granted in the most 

"exceptional" of circumstances. This appeal directly raises the issue whether a 

change in perspective is now desirable given the increasing concerns about access 

to justice, including the cost and delay associated with civil litigation, and in light 

of the amendments to the Queen's Bench Rules which occurred in 1989. 10 

Chief Justice Scott concluded that such a change of perspective is 

appropriate, and upheld the decision of the motions judge, with Justices 

Hamilton and Freedman concurring. In so concluding, Chief Justice Scott 

held that the motions judge did not err in giving significant weight to the 

consideration of access to justice in these circumstances. The appellate 

decision confirms that “financial hardship does not automatically lead to 

severance being granted,” 11 but it is not an error to give this consideration 

weight in the exercise of judicial discretion in determining the “just, most 

expeditious and least expensive” 12 resolution. 

III. COMMENT 

The Court of Appeal’s decision in O’Brien is an important and proper 

decision. First, this decision brings Manitoba in line with the majority of 

precedent from other provinces. Each province has its own rules of civil 

procedure; the authority for granting severance is rooted in common law 

in some provinces 13 and is provided for in the rules of court in other 

provinces. 14 Despite the varied sources of authority for severance between 

the provinces, the factors to be considered therein are essentially the same 

across Canada. In Dmytriw, Justice Simonsen noted that “regardless of 

what test is used, the considerations the courts have taken into account are 

essentially the same.” 15 Therefore, the precedent from other jurisdictions is 

appropriate to consider in determining the law in Manitoba. There is 

10 

O’Brien, supra note 3 at para 1. 

11 


12 

Ibid at para 56; Court of Queen’s Bench Rules, Man Reg 553/88, s 1.04(1) [Rule 1.04(1)]. 

13 

Such as Manitoba and Ontario, as seen in the cases surveyed within this comment. 

Note, however, that new Ontario Rule 6.1.01 provides for separate hearings on one or 

more issues in a proceeding on consent of the parties. See Ontario Rules of Court, 

RRO 1990, Reg 194 at 6.1.01, as amended by O Reg 438/08 at s 9. 

14 

See Alberta Rules of Court, AR124/2010 at 7.1(1) and Supreme Court Civil Rules, BC 

Reg 168/2009 at 12-5(67). 

15 

Dmytriw, supra note 8 at para 11.


authority that rejects granting severance on the basis of impecuniosity, as 

is noted by Chief Justice Scott, 16 however this does not represent the 

weight of the authority. Significantly, the Ontario case of Carreiro 

(Litigation guardian of) v Flynn 17 holds that a court’s discretion to grant 

severance “should not be cabined and confined to the consideration of 

only a pre-set list of factors or criteria.” 18 Prior to the decision in O’Brien, 

the Investor’ Syndicate criteria for severance were rigidly adhered to in 

Manitoba, however, there is no suggestion in Investors Syndicate that this 

list of six factors should constitute the only considerations in the exercise 

of judicial discretion. Rather, Justice Kroft specifically noted that “the 

question of when or if issues should be severed and tried separately, is one 

of general discretion for the court. The only limit to the discretion is that 

there be sufficient reason for exercising it.” 19 Further, in CAE Aircraft Ltd v 

Canadian Commercial Corporation Justice Hewak commented that in 

Investors’ Syndicate, Justice Kroft 

was not attempting to list exhaustively all but only some of the considerations, 

and… given a specific case with specific facts and circumstances, not necessarily 

would all of these considerations apply, but if they did, it might well be that 

certain ones would be of more importance to be given more weight than others. 20 

Thus, there is support both from outside and within Manitoba for flexible 

judicial engagement with the test for severance, and for recognition that 

the factors set out in 1980 are not the only considerations for granting 

severance. 

While access to justice was not previously considered as part of the 

Investors Syndicate test in Manitoba, the issue has played an important role 

in decisions in other jurisdictions, granting credence to the court’s 

affirmation of the motions judge in O’Brien. Given that the Investors 

Syndicate test is not a closed list and taking into account the authority from 

other provinces where financial hardship has been approved as a factor for 

consideration, the Manitoba Court of Appeal rightly affirmed the 

16 

O’Brien, supra note 3 at para 34. See Duffy v Gillespie et al (1997), 36 OR (3d) 443, 155 

DLR (4th) 461 (Div Ct). 

17 

[2004] OTC 664 (available on WL Can) (SCJ), aff’d (2004), 195 OAC 315 (available 

on WL Can) (Div Ct). 

18 


19 

Investors Syndicate, supra note 4 at para 20. 

20 

(1983), 21 Man R (2d) 89 at para 10 (available on WL Can).


evolution of the test for severance in Manitoba. Financial hardship was 

specifically considered as early as 1980 in British Columbia, in the case of 

Lord v Royal Columbian Hospital 21 and was further relied upon in 1985 in 

Royal Bank of Canada v Vista Homes Ltd, 22 and in 1990 in Anderson v 

University of British Columbia. 23 Similarly, in Ontario, the 1996 case of 

Girard (Litigation Guardian of) v Salvation Army Grace Hospital referenced 

access to justice because upholding the decision of the motions judge to 

grant severance was necessary “in order to level the playing field”. 24 As 

Chief Justice Scott noted in the O’Brien decision, 25 access to justice was 

specifically referred to in Bidochka v Ford Motor Co of Canada Ltd et al, as 

Justice Melnick concluded that the plaintiff would be unlikely to have her 

day in court without severance. 26 Further, the case of Vanderlee v Doherty, 27 

relied upon by the court in O’Brien, 28 is significant in that the decision 

highlights the “court’s role in ensuring access to justice.” 29 The court in 

O’Brien correctly notes that this role is codified in the Manitoba Queen’s 

Bench Rules under the fundamental principal that judicial discretion 

should be exercised to “secure the just, most expeditious and least 

expensive determination of every civil proceeding on its merits.” 30 Taking 

this principal with the weight of authority from other provinces, it is clear 

that it is appropriate to give consideration to factors beyond the set list 

from Investors Syndicate, and that this expanded analysis can properly 

include the issue of access to justice. As argued above, enabling judges to 

give weight to access to justice where such consideration is warranted is 

reflective of the realities of civil litigation today and better equips the 

Manitoba legal system to level the civil litigation playing field, following 

the lead of other jurisdictions. 

Notably, there is case law that seemingly supports the rejection of 

access to justice as a factor for consideration in determining severance. 

21 

(1980), 27 BCLR 123 at para 17 (available on WL Can). 

22 

(1985), 63 BCLR 366 at para 30 (available on WL Can) (SC). 

23 

(1990), 51 BCLR (2d) 393 at 394 – 395 (available on WL Can) (SC). 

24 

1996 CarswellOnt 5106 (WL Can) (Ont CJ). 

25 

O’Brien, supra note 3 at 37. 

26 

2000 BCSC 95; 48 CPC (4th) 334 at para 9. 

27 

2000 ABQB 66, 258 AR 194 [Vanderlee]. 

28 


29 

Vanderlee, supra note 27 at para 5. 

30 

Rule 1.04(1), supra note 12.


Perhaps most importantly, Justice Simonsen rejected the request for 

severance in Dmytriw. As another recent Manitoba case, Dmytriw can be 

read at face value as highly persuasive precedent in this regard. Justice 

Simonsen emphasized that financial hardship in and of itself is not a 

reason to sever, but rather it must be demonstrated that the case is 

exceptional. 31 Indeed, the defendant in O’Brien relied on the Dmytriw 

decision in support of their position. 32 However, Justice Simonsen did not 

preclude consideration of access to justice in determining a request for 

severance, but rather held that it is not the sole factor for consideration. It 

is but one factor to be considered in addition to other important 

considerations, such as whether or not severance would prejudice the 

defendant. Further, Dmytriw was rightly distinguished on the facts by the 

court in O’Brien. The plaintiffs in Dmytriw had an annual income over two 

years of between 8.5 to 12 times more than the plaintiff in O’Brien. 33 The 

facts in the two cases are thus entirely different, and accordingly Justice 

Simonsen gave different weight to the financial hardship alleged by the 

plaintiffs in Dmytriw than did Justice Clearwater as the motions judge in 

O’Brien. The court was therefore right to distinguish Dmytriw as simply 

different on the facts, and to recognize that the Dmytriw case should not be 

read as precluding access to justice as a consideration altogether. 

An argument against including access to justice in the considerations 

for severance is that access to justice is provided by contingency fee 

arrangements, and where it is not, the problem is the contingency 

arrangement itself. 34 This argument was made by the defendant in O’Brien, 

and rejected by the court. In the absence of supporting evidence, the court 

specifically rejected the notion that there exists a typical form of 

contingency agreement (the “all or nothing” arrangement) that leaves 

other agreements to be deemed improper. 35 While the court recognized 

that contingency agreements can promote access to justice, it did not see 

this as a reason to dismiss the appeal. The court held that “contingency fee 

agreements, appropriately structured, can be an important tool in 

improving access to justice. The motions court judge was entirely correct 

31 

Dmytriw, supra note 8 at para 16. 

32 

See O’Brien, supra note 3 at para 40. 

33 

Ibid. 

34 

See ibid at para 44. 

35 

Ibid at para 46.


in taking this factor into account in his decision.” 36 It is not entirely clear 

what the court means by noting that the “motions court judge was entirely 

correct in taking this factor into account in his decision.” Further 

elaboration from the court would have been useful as important questions 

remain regarding the contingency agreement aspect of the O’Brien 

decision. To what extent is it proper to take the contingency arrangement 

into account? How detailed should a motion judge’s consideration of a 

specific contingency arrangement be? Cross-referencing the court’s holding 

with the motions judgment, it is clear that Justice Clearwater did accept 

that the plaintiff had a contingency arrangement with her lawyer for the 

claim regarding liability, with the lawyer unprepared to fund the 

disbursements required for a finding on damages. 37 Justice Clearwater 

surmised that a further contingency agreement was likely should the 

plaintiff be successful on the issue of liability. 38 Reading the two O’Brien 

decisions together, it can be understood that while contingency 

agreements are an important tool in improving access to justice, such 

arrangements may be structured differently from case to case and may not 

be sufficient to ensure a plaintiff’s day in court in all cases. Certainly in 

O’Brien itself, the plaintiff did have a contingency agreement with her 

counsel, but that agreement was not enough to ensure access to justice in a 

case with an impecunious plaintiff and a necessarily expensive 

determination of damages. 

This still leaves the question – is there a problem with some forms of 

contingency agreements? In a case in which there was evidence to support 

an argument that a given contingency agreement substantially deviated 

from an established model or typical agreement, would the outcome be 

different? The answer, simply, is no. While civil litigators may, as the 

defendant in O’Brien suggested, have some sort of standard contingency 

agreement that individual lawyers or entire firms may use with little 

adjustment from case-to-case, it is clear that contingency agreements may 

legitimately take a variety of forms. The Law Society of Manitoba’s Code 

of Professional Conduct Rule 2.06(2) provides that “a lawyer may enter 

into a written agreement that provides that the lawyer’s fee is contingent, 

in whole or in part, on the outcome of the matter for which the lawyer’s 



37 

O’Brien motions decision, supra note 9 at para 18. 

38 

Ibid.


services are to be provided.” The commentary on this Rule suggests that, 

in determining the terms of an individual agreement, a lawyer and client 

may take into account a number of factors. Indeed, the Rules provide for 

flexibility in the establishment of a contingency agreement, whereby a 

given agreement can be crafted with an eye to the unique factors in a given 

situation. This flexibility is limited by the test provided for in the 

commentary that the fee, in all of the circumstances, be fair and 

reasonable. Where the agreement is indeed improper, such an issue is not 

appropriately addressed in a severance motion. Rather, the client’s rights 

are properly addressed under section 55(5) of The Legal Profession Act 

which provides that 

“The client may, at any time within six months after the remuneration provided 

for in the contingency contract is paid to or retained by the member, apply to the 

Court of Queen's Bench for a declaration that the contract is not fair and 

reasonable to the client.” 39 

Under section 55(7), the judge hearing the application can declare the 

contract void, order the costs, fees, charges, and disbursements of the 

member in respect of the business done to be taxed as if no contingency 

contract had been made, and order re-imbursement to the client. 40 Beyond 

this, a complaint could, of course, be made to the Law Society if a lawyer’s 

conduct regarding a contingency agreement has been improper. When it 

comes to a severance motion, as per O’Brien, a judge in a severance case 

may properly take into account the existence and general nature of a 

contingency agreement. Where the agreement does not practically permit 

access to justice, such a consequence may be considered as a factor in the 

judge’s exercise of discretion. There is no reason to believe that anything 

other than affidavit evidence is necessary for a judge to take into account a 

plaintiff’s financial circumstances. It is not necessary for a severance 

motions judge to go beyond these basic considerations. 

At the end of the day, contingency arrangements are but one tool by 

which access to justice can be achieved. Certainly, it could be argued that 

if lawyers sincerely wanted to address access to justice, the legal profession 

should ensure that there is no room for a lawyer to draft an agreement 

that is not enough, in and of itself, to give the plaintiff their day in court; 

however, this argument is flawed. Given the increasingly problematic 

39 

The Legal Profession Act, SM 2002, c 44, CCSM c L107, s 55(5). 

40 

Ibid at s 55(7).


financial reality of civil litigation today, the legal profession wants to 

encourage lawyers to enter into contingency arrangements. These 

arrangements should be realistically obtainable in as many cases as 

possible. Even in a case where liability is far from certain, a plaintiff still 

deserves to be able to access justice. Restricting contingency arrangements 

to only those situations where a lawyer is prepared to fully fund all aspects 

of a plaintiff’s case up front would likely result in fewer lawyers taking on 

clients on a contingent basis. Instead, it should be open to a lawyer to 

draft a further agreement once liability is proven following a successful 

severance motion, rather than expecting the lawyer to fund everything upfront 

in an uncertain case. What the O’Brien case demonstrates is that 

contingency arrangements are one aspect of achieving access to justice, but 

the courts, not just lawyers, should be aware of and responsive to the 

realities of civil litigation. Thus, including access to justice in the 

considerations for determining a severance motion adds another 

important aspect to the legal profession’s ability to ensure a plaintiff’s day 

in court. 

Finally, any so-called “flood gates” concerns over the ruling in O’Brien 

should be dismissed. The distinction made between Dmytriw and O’Brien 

demonstrates that only in compelling cases will access to justice be a 

significant consideration in granting a severance request. The court 

recognized that applications for severance are “very much factually 

driven” 41 and this is made clear in the different results in the Dmytriw and 

O’Brien decisions. The court is clear that the criteria from Investors 

Syndicate should still be given consideration, however, in a factually 

appropriate case, access to justice may properly be given significant weight. 

This is particularly so given the fact that the defendant in O’Brien did not 

file any evidence as to prejudice it would suffer in the event of a successful 

application. 42 The court leaves open the possibility that in a different case, 

where such prejudice against the defendant is evident or where a plaintiff’s 

financial situation was better, leaving them more able to afford their day 

in court, access to justice considerations would not be enough to grant a 

severance request. Further, any lingering worries of opening the flood 

gates of severance should be dispelled in light of the recent Alberta Court 

41 


42 

Ibid at para 55.


of Appeal decision in Gallant v Farries, 43 which distinguished O’Brien on 

the facts. 44 In essence, despite the decision in O’Brien, an applicant for 

severance must still demonstrate a clear and compelling case. The issue of 

access to justice alone will not necessarily be enough to result in a 

successful application, except perhaps in the most extreme of cases. The 

decision in O’Brien does not open the dam to a flood of separate trials. 

Rather, O’Brien provides an avenue of opportunity for the full context of a 

case to factor into judicial discretion. In the end, this is how our civil legal 

system can ensure that a just resolution is achieved. 

43 

2012 ABCA 98, 522 AR 13. 

44 

Ibid at para 22.

B O O K R E V I E W 

Dams of Contention: 

The Rafferty-Alameda Story and the 

Birth of Canadian Environmental Law 

by Bill Redekop 

B R E N D A N J O W E T T 

T 

he modern generation of environmental interest groups, activists 

and lawyers relies heavily on statutory environmental review 

processes to ensure that environmental factors are taken into 

account for projects which may have major environmental impacts. While 

the opportunities presented by binding environmental review processes 

are often attributed to the Supreme Court of Canada’s [SCC] decision in 

the Oldman River case, 1 one of Bill Redekop’s aims in Dams of Contention: 

The Rafferty-Alameda Story and the Birth of Canadian Environmental Law is to 

dispel that mistaken belief. 2 While it is clear in a reading of Oldman River 

that the SCC hung its hat on the decision of the Federal Court Trial 

Division (affirmed by the Federal Court of Appeal) in Canadian Wildlife 

Federation Inc v Canada (Minister of the Environment), 3 the pivotal 

importance of Canadian Wildlife 1 is often overlooked and has not received 

nearly the attention that it deserves. In Dams of Contention, Redekop walks 

the reader through the political, judicial, environmental and human 

 

J.D. (Manitoba), LL.M Candidate, Osgoode Hall Law School. 

1 

Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3, 88 

DLR (4th) 1 [Oldman River]. 

2 

Bill Redekop, Dams of Contention (Winnipeg: Heartland, 2012). 

3 

Canadian Wildlife Federation Inc v Canada (Minister of the Environment), [1989] 3 FC 309 

(TD), aff'd (1989), 99 NR 72 (FCA) [Canadian Wildlife 1].


stories which surrounded the construction of the Rafferty and Alameda 

dams in southeastern Saskatchewan starting in the mid-1980s. 

Redekop’s research is thorough, aided by legal and environmental 

scholars, and this information is presented through an engaging narrative. 4 

This also gives rise to one of the struggles that Redekop faces throughout 

the book – his attempt to achieve too many things at once creates 

something of an identity crisis for the book. Dams of Contention is a story 

of political corruption and grassroots resistance, a legal drama, a 

geopolitical and environmental textbook, an editorial, a Rafferty-Alameda 

reference book and a newspaper article, all at the same time. The book 

achieves all of these things to a greater or lesser extent, but perhaps not 

enough to appeal to all of the audiences it attempts to access. The casual 

reader may be exhausted by Redekop’s attention to minute technical 

details (although these are easily skimmed), the student or academic may 

find herself sifting through story lines and rhetoric to find crucial 

information (without the help of an index or a useful table of contents), 

and the activist or lawyer may wish for more substantive (and accurate) 

legal content to help understand the reasoning employed by the various 

courts. This is not necessarily a bad thing; Dams of Contention is an 

enjoyable and interesting read, but the potential reader must consider 

what she hopes to take from it and how the book can serve those 

intentions. 

As much as it is a story about the development of mandatory 

environmental assessment processes, Dams of Contention exposes the 

construction of the Rafferty and Alameda dams in southeastern 

Saskatchewan as a politically motivated vanity project lacking 

environmental foresight, consideration for private citizens’ land interests, 

public disclosure, and any respect for due process. Redekop serves up the 

narrative of the book with a host of antagonists, often caricaturized 

beyond what is reasonable for a serious expository work. Saskatchewan 

Deputy Premier Eric Berntson is cast as the autocratic mastermind of the 

project, squarely in the pocket of the Government of North Dakota and 

happy to waste taxpayer dollars to fund a mega-project (the Alameda Dam) 

in his riding. Saskatchewan’s Progressive Conservative Premier Grant 

Devine serves as the smarmy face of the party, Berntson’s media-friendly 

4 

On a stylistic note, the book could have used further editing, as it suffers from a host 

of spelling and grammatical errors.

Dams of Contention 343 

puppet who is portrayed as selfish, short-sighted and ignorant despite his 

impressive academic credentials. Devine also benefits from a mega-project 

(the Rafferty Dam) in his riding. Also included among the book’s 

antagonists are George Hood, the boorish and heavy-handed CEO of the 

Souris Basin Development Agency [‘SBDA’], Brian Mulroney and federal 

Environment Minister Tom McMillan making deals behind the closed 

doors of Ottawa’s back rooms, and a slew of American politicians looking 

to shift their own political problems across their northern border. While 

Redekop’s personal antipathy towards these characters is clear, he is, at the 

very least, honest about it. 

Dams of Contention also has its heroes. Foremost among the 

protagonists are Ed and Harold Tetzlaff, a pair of salt-of-the-earth, bachelor 

brothers so permanently caked in soil that they are practically inseparable 

from the land. When their ability to continue farming on their land is 

threatened by the Alameda reservoir, the Tetzlaffs seek recourse through 

the judiciary to take on the massive political machinery pushing the illconceived 

project. Assisting the Tetzlaffs in this formidable challenge are 

various lawyers including Weyburn-based lawyer Rod MacDonald and 

Winnipeg-based lawyer Alan Scarth, whose arguments are given the 

judicial nod by Federal Court justices Bud Cullen and Francis Muldoon. 

In an area of law which was nonexistent in Canada at the time, these 

jurists tested the limits of the law and between them developed what is 

now a crucial tool for people and groups wishing to demand 

environmental accountability for large-scale projects. Another ally to the 

environmental movement is Elizabeth May, now the leader of the Green 

Party of Canada, and given perhaps the most interesting profile in the 

book. Formerly the senior advisor to federal Environment Minister Tom 

McMillan, May was left with no choice but to resign from her prestigious, 

well-paying job in June 1988, when she learned that the Rafferty-Alameda 

project would receive an obligatory International River Improvements Act 

[IRIA] license without an environmental assessment as part of a political 

deal. Three months later, after going public about the reason for her 

resignation, attacks on May and her credibility came from every angle. 

Redekop’s account of the public and political lashing inflicted on May 

reveals the personal price that some people were willing to pay for a 

meaningful environmental review process, and Redekop convincingly 

argues for the veracity of her story.


Dams of Contention opens with the catastrophic flooding of Minot, 

North Dakota in the spring of 2011. The city’s main source of flood 

protection, two dams and reservoirs located upstream at Rafferty, 

Saskatchewan and Alameda, Saskatchewan, were already full at the time of 

the flood, unable to provide any further protection to the American city 

downstream. Redekop uses this contemporary issue as a springboard for 

the rest of the book which traces the political and legal development of the 

Rafferty-Alameda project, in support of Redekop’s argument that the 

project was a half-baked political solution from its conception. In tracing 

the development of the project, Redekop also identifies and elucidates the 

origins of Canada’s environmental review processes. Profiles of the major 

players in the story are interspersed throughout the narrative of the book, 

with those of particular interest including those of Grant Devine (Chapter 

4), Ed and Harold Tetzlaff (Chapter 6), Eric Berntson (Chapter 10) and 

Elizabeth May (parts of Chapters 10 and 11). 

Redekop moves on to consider the political motivations behind the 

Rafferty-Alameda project. While the Rafferty Dam was at least somewhat 

justifiable from a Canadian standpoint (and provided Devine with a megaproject 

in his riding) the Alameda Dam provides no benefit beyond flood 

protection for Minot. Redekop aptly refers to the Alameda reservoir as 

“Lake America”, serving purely American interests and controlled to suit 

American needs. The dams also posed major environmental risks through 

the destruction of habitat (wetlands and river valleys) and impacts on 

water chemistry. The Alameda Dam served Eric Berntson’s interest in 

bringing a mega-project into his riding, and the interests of American 

landowners who had successfully lobbied against more effective flood 

protection within the state of North Dakota following a major flood in 

1969. Most of the cost for Rafferty-Alameda was borne by Saskatchewan 

taxpayers; the American flat-rate contribution turned out to be miniscule 

in light of predictable cost overruns, the result of reckless negotiation. 

Redekop makes some bold assertions against the major political players in 

this story, leaving a few unanswered questions: What was the public 

reaction to a project as suspect as Alameda? Was there vocal opposition 

from the general public? Is there more than circumstantial proof that 

Berntson and Devine were acting purely in the interests of themselves or 

their friends? These questions arose early in the book but were never fully 

answered.


A detailed synopsis of the ensuing political and personal story is not 

necessary here, but there are two government decisions which warrant 

special attention since Redekop identifies them as being at the heart of the 

subsequent litigation surrounding Rafferty-Alameda. The first of those 

decisions was the approval of the Rafferty-Alameda project by 

Saskatchewan Environment Minister Herb Swan. This decision was based 

upon the recommendation of an inquiry which lacked any expertise on 

dams or environmental science; the qualification of the panel to make a 

recommendation about whether the project should be approved was 

dubious at best. Furthermore, that inquiry’s decision was based largely on 

a shambolic environmental impact statement compiled by the SBDA, 

which was completed hastily and was found by several experts to be of 

poor quality, incomplete, largely unsubstantiated and limited in scope. 

Both processes were flawed, lacking adequate consideration of 

environmental impacts and alternatives or fair public consultation. 

Redekop’s review of the environmental impact statement as well as the 

activities of the inquiry is detailed and well organized, revealing the full 

breadth of the environmental assessment process. This overview also serves 

him well later in the book as it highlights the importance of the 

procedural victory that environmentalists would later obtain through the 

courts. 

The litigation which arose in response to this ministerial decision was 

initiated by a coalition called “Stop Construction on Rafferty Alameda 

Projects Inc.” [SCRAP]. SCRAP consisted of a group of landowners 

(including the Tetzlaffs) in the area which would be swallowed by the 

reservoirs created by the dams, as well as users of those areas. The coalition 

also included the Saskatchewan Wildlife Federation, which took interest 

in the case when it learned that 45 000 acres of wetlands risked being 

drained if the Rafferty reservoir took too long to fill. SCRAP’s sole aim 

was to get the government to conduct a proper environmental impact 

assessment which included a cost-benefit analysis of the project. The issue 

faced by the coalition, however, was whether it would be able to achieve 

standing to challenge the minister’s decision. Establishing public interest 

standing had been a notoriously difficult task, and so the question was 

whether this coalition of both public and private interests would be able to 

achieve standing. 

Redekop provides an overview of the resultant case, Association of Stop 

Construction of Rafferty Alameda Project Inc v Saskatchewan (Minister of


Environment and Public Safety) and Souris Basin Authority (“Association”), 5 

which is concise and relatively accurate, although it is not pitched to a 

legal audience (see pages 106-112). He summarizes the positions of each of 

the parties, the Court’s findings on each of the issues, and the basic 

reasoning employed by the Court. Indeed, the Court held that because 

some members of the coalition had a direct personal interest in the 

improper approval, SCRAP had standing to bring the action. Redekop 

correctly identifies this decision as precedent-setting for future 

environmental law; it is now common practice for environmental interest 

groups to graft their public interest concerns to the private interests of 

individuals directly affected by government decision making. Although 

SCRAP did not succeed in its goal to force the government back to the 

assessment process, this was a significant procedural victory. This section 

of the book may be of utility to lawyers and activists wishing to pursue 

litigation in the public interest, environmental or otherwise. 

A disconcerting aspect of Redekop’s treatment of Association is that he 

omits legally significant details that do not serve his rhetorical aims in his 

discussion of costs awarded. In fact, he largely misrepresents the allocation 

of costs in an effort to victimize the environmental coalition. Redekop 

writes that the Court’s decision to award costs to the Crown “seemed 

indicative of how courts viewed environmental challenges at the time”. 

Redekop does not mention that in Association, costs were also awarded 

against the SBDA; 6 that would be inconsistent with his portrayal of 

SCRAP as a near-total victim. He also fails to mention that the costs 

assessed against SCRAP were awarded because SCRAP failed to follow the 

necessary process for seeking damages against the Crown, and improperly 

sued Herb Swan in his personal capacity; these were certainly solid 

grounds for costs. 7 When an author asks us to trust that his version of 

events is true, he must be forthcoming with information, even if it hurts 

his rhetorical goals. No reader is well served by this type of omission. 

The other governmental decision at the heart of Dams of Contention 

is the aforementioned federal granting of the IRIA license by Canadian 

5 

Association of Stop Construction of Rafferty Alameda Project Inc v Saskatchewan (Minister of 

Environment and Public Safety) and Souris Basin Authority, (1988), 68 Sask R 52, 3 CELR 

(NS) 236 (QB) [SCRAP]. 

6 


7 

Ibid at para 103.


Environment Minister Tom McMillan, at the behest Brian Mulroney. 

Following SCRAP’s failure to secure an injunction against Saskatchewan’s 

Environment Minister, the only review process left to be challenged was 

federal. The IRIA license was given to Saskatchewan without any 

environmental review, in exchange for provincial concessions regarding 

French language rights (at the behest of Mulroney) and Grasslands 

National Park (at the behest of McMillan). At the time, federal officials 

thought that the legislation which set out guidelines for assessing projects, 

the Environmental Assessment Review Process Guidelines Order 

(“EARPGO”)], was merely a discretionary instrument. The Trudeau 

government had strengthened the EARPGO in 1984 however, and this 

proved invaluable to environmentalists embroiled in the Rafferty-Alameda 

controversy. In this case, a different group, the Canadian Wildlife 

Federation, brought an application for certiorari and mandamus which, if 

successful, would revoke the IRIA license and halt construction on the 

dams until a proper, independent assessment had been conducted. 

The issue before the court in this case, Canadian Wildlife 1, 8 was 

whether the EARPGO had the force of law, or was just a description of 

policy which the government was entitled to ignore. Redekop provides a 

good overview of the issues and arguments presented in the case, as well as 

the Court’s reasoning. The Court ultimately found that the federal review 

process was triggered by Rafferty-Alameda’s environmental impact on 

about 4000 acres of federal Crown land, as well as cross-border impacts in 

Manitoba and North Dakota. The use of the word “shall” in the guidelines 

indicates an intention for the guidelines to be binding. EARPGO was 

therefore not merely a policy, but the binding environmental protection 

law of Canada. An order of certiorari and mandamus was granted, requiring 

the federal government to perform an environmental assessment of effects 

that had not been considered in Saskatchewan’s environmental impact 

statement (namely effects in Manitoba and North Dakota). Redekop’s 

overview of Canadian Wildlife 1 is much more accurate than his treatment 

of SCRAP, and all of the major points from the case are included without 

any major omissions. It is this case which was so foundational to Canadian 

environmental law, 

8 

Canadian Wildlife 1, supra note 3.


…the first case enjoining a government project of any kind on environmental 

grounds. It emboldened a broad band of citizen groups to think that the 

government, too, would have to answer to the law and that the courts would 

back them up. 9 

Following Canadian Wildlife 1 (which was comfortably affirmed by the 

Federal Court of Appeal), 10 opponents of the Rafferty-Alameda project 

found themselves still seeking relief through the courts as politicians 

continued to drag their heels through the review process. A successful 

action was brought against the new Federal Environment Minister, Lucien 

Bouchard, seeking a full inquiry due to significant environmental impacts: 

see Canadian Wildlife Federation Inc. et al v Canada (Minister of Environment) 

and Saskatchewan Water Corporation 11 (Chapter 16). Another action was 

brought by the Federal Government against the Province of Saskatchewan, 

claiming that Saskatchewan had breached an agreement to halt 

construction until an environmental assessment panel had reviewed the 

project: see Canada (AG) v Sask Water Corp 12 (Chapter 21). Chief Justice 

Donald MacPherson refused the injunction application and allowed 

construction to continue. This decision was later overruled by the 

Saskatchewan Court of Appeal, although the appellate federal government 

did not enforce the new decision. 13 

The last legal battlefront remaining was an appeal by the Tetzlaff 

brothers from Canadian Wildlife 2. Although the plaintiffs in that case had 

been largely successful, Federal Court Justice Francis Muldoon had 

allowed Saskatchewan to maintain its IRIA license on the condition that a 

review panel was appointed within 30 days. This allowed Saskatchewan to 

continue work on the dams while the review panel conducted its 

assessment. The Tetzlaffs sought to halt construction until the report 

9 

Oliver Houck in Redekop, supra note 2 at 271. 

10 

See Canadian Wildlife Federation Inc. et al v Canada (Minister of Environment) and 

Saskatchewan Water Corporation, [1990] 2 WWR 69, (1989), 99 NR 72 (FCA) 

[‘Canadian Wildlife 2’]. 

11 

Canadian Wildlife Federation Inc. et al v Canada (Minister of Environment) and 

Saskatchewan Water Corporation, (1989), 99 N.R. 72 (FCA), aff’g (1989), 31 FTR 1 

(TD) . 

12 

Canada (AG) v Saskatchwan Water Corporation and Souris Basin Development Authority 

[1991] 1 WWR 426, 88 Sask R 13 (Sask QB). 

13 

Canada (AG) v Saskatchwan Water Corporation and Souris Basin Development Authority, 

[1992] 4 WWR 712, rev’g [1991] 1 WWR 426 (SKCA).


could be considered by the minister. The appeal was dismissed; see: 

Canadian Wildlife Federation Inc. et al v Canada (Minister of Environment) and 

Saskatchewan Water Corp 14 (Chapter 22). 

As a final comment on Redekop’s treatment of case law, I am 

concerned by Redekop’s portrayal of the role of the judiciary in settling 

environmental disputes. In each of the cases where the court decides 

contrary to what Redekop would have liked to see, Redekop expresses 

indignation towards the judges personally, casting them as backwards and 

indifferent to environmental concerns. He implies that judicial decisions 

are purely the result of personal political leanings, and that it was open to 

the judges to side with environmental interests. For instance, he writes 

that MacPherson J could “smell the goal line”, as though the Saskatchwan 

Queen’s Bench justice simply could not wait to see the dams built. 15 More 

worrisome, however, is where Redekop accuses Federal Court Chief 

Justice Iacobucci (as he then was) of actively seeking “loopholes” to absolve 

the government of environmental responsibilities. Redekop explicitly says 

that Iacobucci finished the job that Bertson, Devine and Hood started. 

I have to admit that I was stunned by Redekop’s belligerence towards 

Chief Justice Iacobucci (as he then was). In the judicial context, these 

criticisms are not to be taken lightly. Accusing a judge of partisanship or 

judicial activism says that she has failed to serve her role with the honour 

and the impartiality that justice requires. In fact, even in cases where 

Redekop was satisfied with the result, he inadvertently insults the judges 

by saying that their decisions were the result of concern for the 

environment and forward thinking. I am not sure if Redekop himself is 

aware of the magnitude of his allegations. Iacobucci’s decision in Canadian 

Wildlife 3 is carefully thought out and purely legal, interpreting the law as 

it was at the time. Iacobucci’s final decision was the result not of his own 

animosity towards environmentalists, but environmental legislation which 

was not as strong as it is today (or as Redekop would have liked to see). 

While judicial activism is certainly a subject warranting vigorous debate, 

Redekop offers nothing in the way of legal analysis of these decisions or 

ways they may have been decided differently within the confines of the law 

14 

Canadian Wildlife Federation Inc et al v Canada (Minister of Environment) and 

Saskatchewan Water Corp, (1990), 121 NR 385, (1990), 6 CELR (NS) 89) (FCA) 

[‘Canadian Wildlife 3’]. 

15 

Redekop, supra note 2 at 216.


at the time. Instead, he hurls uninformed pot-shots that say more about 

him than the judges he targets. 

In the end, the Rafferty-Alameda project went through, but not 

without its own political costs. Devine’s government was unequivocally 

rejected in the next provincial election, and the new NDP government was 

left with little choice but to see the dams through to their completion. 

Despite this result, the project gave rise to the first case enjoining the 

government on environmental grounds, now an important tool for 

environmental lawyers and activists. 

Dams of Contention traces the Rafferty-Alameda story in an interesting 

and accessible way, and although it is not a sophisticated legal work, it may 

still have a lot to offer to its various audiences. As a narrative, the book is 

an excellent source of information on the development of the Rafferty- 

Alameda project, which will be of use to those with an interest in politics, 

public administration, environmentalism and public law. It does not lend 

itself to use as a reference book for those looking for specific details on 

characters, political developments, the Rafferty or Alameda dams or the 

legal cases arising throughout the story. It is not fatal to the book that it 

has a rhetorical purpose and is replete with opinion, but the reader must 

be vigilant for times when facts are presented to serve those rhetorical 

aims, and opinion is presented as fact. That having been said, I can 

understand the indignation which Redekop expresses throughout the 

book; he has formed an intense personal connection with his subjects and 

truly internalizes their struggle. The result is a work which illuminates the 

human stories behind otherwise disinterested law.


The “Great Writ” Reinvigorated? 

Habeas Corpus in Contemporary 

Canada 

D E B R A P A R K E S * 


I 

n his engaging essay delivered at the 2 nd Annual DeLloyd J Guth 

Visiting Lecture in Legal History at Robson Hall in 2012, “Habeas 

Corpus, Legal History and Guantanamo Bay,” 1 Professor James 

Oldham provides insight into the contemporary debates in the United 

States about the scope and significance of the ancient writ of habeas corpus. 

In Canada, there has also been controversy in recent years about the 

availability of habeas corpus review and its relationship to other remedies 

and avenues for judicial review of imprisonment and other forms of 

detention. There are some significant similarities, as well as divergences, 

between Canadian, American, and British law with respect to the 

doctrine, procedure, and availability of habeas corpus. This short prelude to 

Professor Oldham’s article will not seek to canvass those substantial bodies 

of case law and commentary. 2 Rather, it will discuss some of the ways the 

* 

Associate Professor and Associate Dean (Research & Graduate Studies), Faculty of 

Law, University of Manitoba. My thanks go to Brendan Harvey for his able research 

assistance which was funded by the Social Justice and Human Rights Research fund, 

Faculty of Law, University of Manitoba. 

1 

2012 36:1 Man LJ 361 (This Volume). 

2 

See generally, Judith Farbey, RJ Sharpe, & Simon Attrill, The Law of Habeas Corpus, 

3d ed (Oxford: Oxford University Press, 2011); David Clarke & Gerard McCoy, The 

Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Oxford: Oxford


writ has played, and should continue to play, an important role in 

promoting access to justice and protecting basic liberty interests, 

particularly in these law and order times. The focus will be on 

developments in the law since the Canadian Charter of Rights and Freedoms 3 

was enacted, touching on two important features of a modern doctrine of 

habeas corpus – namely flexibility and gap-filling, both of which Professor 

Oldham also develops in his essay. 

II. HABEAS CORPUS IN PRE-CHARTER CANADIAN LAW 

The writ of habeas corpus, described by Blackstone as “the great and 

efficacious writ, in all manner of illegal confinement,” 4 functions as a 

vehicle to challenge the legality of detention. In the Canadian context, 

habeas corpus has been available to challenge a wide variety of detentions 

including those on mental health grounds, in connection with military 

service, and with respect to extradition. 5 There are also some high profile 

examples of its suspension – for example, during the 1970 “October 

Crisis” in which nearly 500 people were arrested and detained (87% 

ultimately without any charge being laid) when the federal government 

invoked the War Measures Act 6 in response to a hostage-taking by radical 

Quebec nationalists. 7 

Habeas corpus is a potentially powerful remedy in the sense that it is 

not discretionary. It is distinct from the prerogative writs such as those for 

certiorari and prohibition in that it issues as of right 8 (and the prisoner 

should be released) if the detention is determined to be unlawful, 

University Press, 2000); Cameron Harvey, Habeas Corpus in Canada (Toronto: 

Butterworths, 1974). 

3 


Schedule B to the Canada Act 1982 (UK), 1982, c.11. 

4 

William Blackstone, Commentaries on the Laws of England 1765, vol 3 at 131, cited in 

Allan Manson, “The Effect of Steele on Habeas Corpus and Indeterminate 

Confinement” (1991) 80 CR (3d) 282 at 285. 

5 

Harvey, supra note 2 at ch 2. 

6 

SC 1914 (2d session), c2, s1. 

7 

Dominique Clément, "The October Crisis of 1970: Human Rights Abuses Under the 

War Measures Act" (2008) 42:2 J Can Stud 160. 

8 

As discussed infra, this principle was recently affirmed in May v Ferndale, 2005 SCC 82 

at para 33, [2005] 3 SCR 809 [May v Ferndale].

The “Great Writ” Reinvigorated? 353 

provided the applicant is not seeking to subvert or circumvent the normal 

processes of appeal from conviction. 9 However, as will be discussed further 

below, in the context of proliferating specialized statutory and 

administrative regimes throughout the 20th century, Canadian courts 

have sometimes declined to exercise jurisdiction to review the legality of 

detention. The extent to which courts were (and are) willing to use the 

writ of habeas corpus to fill gaps in rights protection left by these various 

statutory regimes continues to be an important question in Canadian law. 

As a practical reality, for people imprisoned in Canadian 

penitentiaries and jails from the 19th century and most of the 20th 

century, habeas corpus offered little protection from rights abuses and other 

illegal treatment. Vestiges of the common law concept of “civil death” (the 

loss of civil and proprietary rights upon criminal conviction) led courts to 

adopt a deferential, “hands off” approach to correctional decision-making 

such that abuses and illegalities went unremedied. In his ground-breaking 

1983 book, Prisoners of Isolation: Solitary Confinement in Canada, 10 Michael 

Jackson described the effect of this hands-off approach as “immuniz[ing] 

the prison from public scrutiny through the judicial process and … 

plac[ing] prison officials in a position of virtual invulnerability and 

absolute power over the persons committed to their institutions.” 11 It was 

not until a series of riots and other violent incidents broke out in 

penitentiaries across Canada in the 1970s that courts began to move away 

from their “hands-off” doctrine. 12 In the landmark decision in Martineau v 

Matsqui Institution Disciplinary Board 13 the Supreme Court held that 

prisoners were entitled to procedural fairness and could seek judicial 

review of decisions by prison officials that deprived them of their “residual 

liberty” (i.e., through placement in segregation), stating that “[t]he rule of 

law must run within penitentiary walls.” 14 

9 

Manson, supra note 4 at 285, citing Goldhar v R, [1960] SCR 431, 25 DLR (2d) 401. 

10 

Michael Jackson, Prisoners of Isolation: Solitary Confinement in Canada (Toronto: 

University of Toronto Press, 1983). 

11 

Ibid at 82. 

12 

Michael Jackson, Justice Behind the Walls: Human Rights in Canadian Prisons (Vancouver: 

Douglas & McIntyre 2002) at ch 3 [Jackson, Justice Behind the Walls]. 

13 

[1980] 1 SCR 602, 106 DLR (3d) 385 [Martineau cited to SCR]. 

14 

Ibid at 622.


III. HABEAS CORPUS AND THE CHARTER 

For Canadian prisoners, the writ of habeas corpus took on new 

significance in the 1980s with its entrenchment in the Charter and, in 

practical terms, through the decisions of the Supreme Court in the Miller 

trilogy 15 which affirmed that the writ is available to prisoners 

notwithstanding the statutorily mandated jurisdiction of the Federal 

Court to grant prerogative remedies against federal decision-makers. 16 The 

court ruled that habeas corpus is available “to challenge the validity of a 

distinct form of confinement or detention in which the actual physical 

constraint or deprivation of liberty, as distinct from the mere loss of 

certain privileges, is more restrictive or severe than the normal one in an 

institution.” 17 As such, the writ, with certiorari in aid, was available to 

challenge the legality of placement in segregation (Cardinal) as well as 

transfers to a Special Handling Unit from a maximum security prison 

(Morin and Miller) since these actions involved deprivations of the 

prisoners’ residual liberty interests. Finally, the court emphasized that the 

remedy of habeas corpus, “as the traditional means of challenging 

deprivations of liberty” must remain open to prisoners despite the 

concurrent jurisdiction of the Federal Court to hear judicial review 

applications from prison decisions. 18 

At the same time as the Miller trilogy was winding its way to the 

Supreme Court, the Canadian Charter of Rights and Freedoms was enacted, 

with section 10 providing that “[e]veryone has the right on arrest or 

detention... (c) to have the validity of the detention determined by way of 

habeas corpus and to be released if the detention is not lawful.” In applying 

section 10(c) in R v Gamble, 19 the Supreme Court emphasized the flexible 

nature of the habeas corpus remedy and warned against “plac[ing] 

15 

R v Miller, [1985] 2 SCR 613, 24 DLR (4th) 9 [Miller cited to SCR]; Cardinal v Kent 

Institution, [1985] 2 SCR 643, 24 DLR (4th) 44 [Cardinal]; and Morin v Canada 

(National Special Handling Unit Review Committee), [1985] 2 SCR 662, 24 DLR (4th) 71 

[Morin]. 

16 

In keeping with its status as a non-discretionary remedy, habeas corpus was not 

included in the list of possible orders that the Federal Court could grant. 

17 

Miller, supra note 15 at 641. 

18 

Ibid. 

19 

[1988] 2 SCR 595, 45 CCC (3d) 204 [Gamble cited to SCR].


procedural roadblocks in the way of someone like the appellant who is 

seeking to vindicate one of the citizens’ most fundamental rights in the 

traditional and appropriate forum.” 20 Janise Gamble had been sentenced 

for murder under the wrong provision of the Criminal Code during the 

transitional time after capital punishment was abolished. Having assumed 

jurisdiction on the basis of habeas corpus (notwithstanding that a criminal 

appeal would have been the normal route) in this application brought over 

ten years into the sentence, the Supreme Court exercised its broad 

remedial powers pursuant to section 24(1) of the Charter and ordered Ms. 

Gamble eligible for parole forthwith. 

In 1990, the Supreme Court decided another important case on the 

scope of habeas corpus, Steele v Mountain Institution, 21 the application of 

which led to a substantial narrowing of the availability of the remedy to 

federal prisoners for the next 15 years. Theodore Steele successfully 

applied for habeas corpus review of his indeterminate sentence as a 

“criminal sexual psychopath” which had been in effect for 37 years by the 

time the Supreme Court granted his application. Holding that his 

continued detention constituted cruel and unusual punishment contrary 

to section 12 of the Charter, the Supreme Court ordered him released with 

certain conditions. However, evidently out of concern that the courts not 

be flooded by applications for habeas corpus challenging the substantive 

merits of prisoners’ continued detention, Cory J held that Mr. Steele 

should have proceeded by way of judicial review in Federal Court since the 

errors that had kept him detained so long were part of the parole decisionmaking 

process. 

Justice Cory’s recommendation against establishing an unwieldy 

parallel system of adjudication was transformed by subsequent provincial 

appellate decisions into a rule that superior courts should decline to 

exercise their habeas corpus review in the prison context. In decisions such 

as Spindler v Millhaven Institution 22 and Hickey v Kent Institution 23 provincial 

appellate courts declined to exercise their habeas corpus jurisdiction on the 

20 

Ibid at 635. 

21 

[1990] 2 SCR 1385, 60 CCC (3d) 1. 

22 

(2003) 15 CR (6th) 183, 110 CRR (2d) 173 (Ont CA)[Spindler]. 

23 

2003 BCCA 23 (available on WL Can) [Hickey]. See also Armaly v Canada (Correctional 

Service), 2001 ABCA 280, 299 AR 188; St-Amand v Canada (Attorney General) (2000), 

147 CCC (3d) 48 (available on WL Can) (Qc CA).


basis that the prisoner applicants should have proceeded via judicial 

review in Federal Court. At issue in Spindler was a policy implemented by 

the Commissioner of Corrections requiring anyone convicted of murder 

to serve at least two years in a maximum security prison, even where the 

government’s own security classification criteria pointed to a lower security 

classification. This policy change was prompted by much-publicized (and 

politicized) criticism from victim’s rights groups to the effect that 

murderers who were classified as medium or minimum security were not 

being suitably punished. The decision at issue in Hickey was a transfer to 

the ultra-high security Special Handling Unit. In both cases, and in other 

decisions involving similar issues, 24 prisoners’ residual liberty interests 

were implicated. Yet the appellate courts held that courts should decline 

to exercise their habeas corpus jurisdiction on the basis that the internal 

prison grievance system and/or judicial review in the Federal Court 

amounted to “a complete, comprehensive and expert procedure for review 

of a decision affecting the prisoner’s confinement.” 25 These courts were 

treating habeas corpus as a discretionary remedy, 26 and were assuming that 

the alternatives open to prisoners (particularly the internal grievance 

procedure, followed by judicial review proceedings in Federal Court) 

provided adequate and timely justice. These assumptions were challenged 

successfully in May v Ferndale Institution, 27 a case which provided the 

Supreme Court with an opportunity to clarify its comments in Steele and 

to affirm the importance of habeas corpus review in the prison context 

where, as I and others have argued elsewhere, 28 the potential for abuse and 

illegality is great and the need for judicial oversight is particularly acute. 

24 

Ibid. 

25 

Hickey, supra note 23 at para 50. 

26 

This characterization runs contrary to the nature of habeas corpus as a writ that issues if 

the legality of the detention is not proved: “unlike certiorari or mandamus, a writ of 

habeas corpus is of right to every man [sic] who is unlawfully detained. If a prima facie 

case is shown that a man is unlawfully detained, it is for the one who detains him to 

make a return justifying it,” R v Pentonville Prison Governor, [1973] 2 All ER 741, [1973] 

2 WLR 949 (Eng CA), cited in Charles B Davidson, “Whittling away at Greatness: 

The Narrowing of the Availability of Habeas Corpus” (2004) 15 CR (6th) 192 at 201- 

202. 

27 

May v Ferndale, supra note 8. 

28 

See e.g. Kim Pate & Debra Parkes, “Time for Accountability: Effective Oversight of 

Women’s Prisons” (2006) 48 Can J Crim & Crim Just 251; Debra Parkes, “A


IV. REINVIGORATING THE WRIT FOR PRISONERS 

Terry May and other prisoners were serving life sentences in a federal 

prison when they were automatically reclassified from minimum to 

medium security and involuntarily transferred to a higher security prison. 

Their reclassification was due to a change in policy whereby completion of 

a certain anti-violence program was required to maintain minimum 

security status. They applied to the British Columbia Supreme Court for 

habeas corpus review, with certiorari in aid, arguing that the reclassification 

decision was arbitrary and that they were denied procedural fairness since 

the Correctional Service had failed to disclose the scoring matrix used to 

reclassify them. The application for habeas corpus was dismissed at first 

instance on substantive grounds 29 but the British Columbia Court of 

Appeal held that the British Columbia Supreme Court ought to have 

declined to exercise its habeas corpus jurisdiction on the basis that the 

“specialized” Federal Court was the appropriate venue for prisoner 

litigation of this kind. 30 

After reviewing the history of the “hands-off” doctrine and the 

subsequent expansion of habeas corpus review in the Miller trilogy, the 

Supreme Court unanimously rejected the Spindler approach which had 

effectively turned the limited discretion to decline to exercise habeas corpus 

jurisdiction into a rule against the writ’s availability in prison cases. The 

Court strongly affirmed the availability of habeas corpus review in provincial 

superior courts in these and other circumstances involving the residual 

liberty interests of prisoners: 

Given the historical importance of habeas corpus in the protection of various 

liberty interests, jurisprudential developments limiting habeas corpus jurisdiction 

should be carefully evaluated and should not be allowed to expand unchecked. 

Prisoner’s Charter? Reflections on Prisoner Litigation under the Canadian Charter of 

Rights and Freedoms” (2007) 40 UBC L Rev 629; Jackson, Justice Behind the Walls, 

supra note 12; The Hon. Louise Arbour, Report of the Commission of Inquiry into Certain 

Events at the Prison for Women in Kingston (Canada: Public Works and Government 

Services, 1996). 

29 

Bauman J relied on Milller, supra note 15 in finding that he had jurisdiction to hear 

the application, but went to conclude the reclassification was lawful: May v Ferndale 

Institution, 2001 BCSC 1335 (available on WL Can). 

30 

May v Ferndale Institution, 2003 BCCA 536 at para 21 (available on WL Can) citing 

Spindler, supra note 22.


The exceptions to habeas corpus jurisdiction and the circumstances under which a 

superior court may decline jurisdiction should be well defined and limited. ... In 

principle, the governing rule is that provincial superior courts should exercise 

their jurisdiction. However, in accordance with this Court’s decisions, provincial 

superior courts should decline habeas corpus jurisdiction only where (1) a statute 

such as the Criminal Code… confers jurisdiction on a court of appeal to correct 

the errors of a lower court and release the applicant if need be or (2) the 

legislator has put in place complete, comprehensive and expert procedure for 

review of an administrative decision. 31 

The Court rejected the argument that the internal prison grievance 

system was comparable to the independent adjudication of immigration 

appeals which had been found to be a “complete, comprehensive and 

expert” review procedure. 32 The Court bolstered the case for enhanced 

judicial oversight of prisons by describing the internal grievance procedure 

as suffering from “structural weaknesses”. 33 Speaking for the majority, 

Justices LeBel and Fish cited the following factors as weighing in favour of 

provincial superior courts exercising habeas corpus review in prison cases, 

concurrent with the availability of judicial review in the Federal Court: (1) 

the choice of remedies and forum (jurisdiction is concurrent, not 

conflicting); (2) the expertise of provincial superior courts (they are wellversed 

in Charter and criminal law which are highly relevant in the prison 

context); (3) the timeliness of the remedy (habeas corpus review can 

commence on 6 days notice compared to 160 days in Federal Court); (4) 

local access to the remedy (as emphasized in Gamble); and (5) the nature of 

the remedy and the burden of proof (habeas corpus issues as of right where 

the government has not discharged its burden of proving legality whereas 

the Federal Court can deny relief on discretionary grounds). 34 

31 

May v Ferndale, supra note 8 at para. 50 [emphasis added]. 

32 

Peiroo v Canada (Minister of Employment and Immigration) (1989), 69 OR (2d) 253, 60 

DLR (4th) 574 (Ont CA), leave to appeal refused, [1989] 2 SCR x. Post-May, 

Canadian courts continued to decline to exercise habeas corpus jurisdiction in relation 

to immigration detention (Apaolaza-Sancho c Director of Établissement de détention de 

Rivière-des-Prairies, 2008 QCCA 1542); involuntary detention pursuant to mental 

health law (Capano v Centre for Addiction and Mental Health, 2010 ONSC 1687); and 

extradition proceedings (Thailand v Saxena, 2009 BCCA 223) on the basis that the 

relevant legislation established a “complete, comprehensive and expert” review 

procedure. 

33 

May v Ferndale, supra note 8 at para 64. 

34 

Ibid, at para 65-71.


The majority went on to find the instant decision — reclassifying Terry 

May and others from minimum to medium security — to be unlawful 

because the scoring matrix, used in the reclassification decision, was not 

disclosed to the prisoners. 35 This failure to disclose the scoring matrix on 

the basis that it was unavailable (when in fact it was available but it was the 

Correctional Service’s practice not to disclose it) was characterized by 

Justices LeBel and Fish as “highly objectionable” and “misleading”. 36 In so 

ruling, the majority seemed to grasp the difficulties faced by prisoner 

litigants in challenging the decisions of authorities who hold all the power 

and much of the relevant evidence. For prisoners’ rights advocates, May 

was a most welcome decision. 37 

V. CONTINUED RELEVANCE OF THE WRIT 

Access to the courts to review the legality of detention is a critical 

check on government power in these times of political expediency in the 

name of law and order and national security. For example, the federal 

government has recently announced its intention to extend the time 

between reviews of detention under the mental disorder provisions of the 

Criminal Code. This proposed change, which is an apparent response to 

public outcry over a few high profile cases of violence involving mentally 

disordered accused, 38 may prompt an application for habeas corpus review if 

enacted. 39 

35 

Ibid, at para 112. 


Ibid, at para 110-111. 

37 

Of course, access to justice is crucial to ensuring that any remedy is actually 

enforceable. There is very limited legal aid funding available across the country to 

facilitate prison litigation, which makes the relevant rights and remedies illusory for 

many prisoners. See e.g. Debra Parkes et al, “Listening to Their Voices: Women 

Prisoners and Access to Justice in Manitoba” (2008) 26 Wind YB Access Just 85 at 

116-118. 

38 

Brian Morton, “Ottawa to address safety concerns about releasing mentally ill 

offenders”, The Vancouver Sun (22 November 2012) online: Vancouver Sun < 

http://www.vancouversun.com/news/Ottawa+introduce+bill+keep+more+mentally+o 

ffenders+behind+bars/7596636/story.html>. 

39 

Habeas corpus review is already playing a gap-filling function, providing a remedy to 

mentally disordered accused persons who are detained in jail rather than in forensic 

beds due to lack of resources and coordination. See Janet Leiper, “Cracks in the 

Façade of Liberty: The Resort to Habeas Corpus to Enforce Part XX.1 of the Criminal

360 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 

Similarly, recent amendments to the Immigration and Refugee Protection 

Act 40 authorize the detention, without judicial review for one year and 

with limited access to the administrative tribunal, of individuals whom the 

Minister of Citizenship and Immigration designates as “irregular arrivals” 

(i.e., through an alleged human smuggling event). 41 This new regime may 

require a revisiting of the controversial ruling in Peiroo that immigration 

law provides a “complete, comprehensive and expert review procedure” 

which has meant that superior courts will generally decline to exercise 

habeas corpus jurisdiction in immigration cases. In Charkaoui v Canada, 

Chief Justice McLachlin made it clear that “foreign nationals, like others, 

have a right to prompt review to ensure that their detention complies with 

the law. This principle is affirmed in section 10(c) of the Charter.” 42 The 

provisions of the Immigration and Refugee Protection Act which failed to 

allow for review of the detention of foreign nationals until 120 days after a 

security certificate was confirmed were found to violate section 10(c). 43 In 

these and other contexts, it is hoped that the flexibility and gap-filling 

functions of the habeas corpus remedy will continue to develop in a manner 

deserving of the “great writ of liberty.” 

Code” (2009) 55 Crim LQ 134. 

40 

Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced 

Refugee Reform Act, the Marine Transportation Security Act and the Department of 

Citizenship and Immigration Act, 1st Sess, 41st Parl, 2012 (Assented to 28 June 2012), 

SC 2012, c 17. 

41 

Ibid at s 20.1(1). For critical commentary on this legislation, see “Bill C-31” Canadian 

Association of Refugee Lawyers (9 July 2012), online: CARL, Bill C-31 

. 

42 

Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 90, 276 DLR 

(4th) 594. She went on to note that this right is also recognized internationally, citing 

Rasul v Bush, 542 US 466 (2004) and some European cases. 

43 

Charkaoui, ibid, at para 90.


The DeLloyd Guth Visiting Lecture in 

Legal History: Habeas Corpus, Legal 

History, and Guantanamo Bay 

J A M E S O L D H A M 


I 

t is an honor to be giving the second DeLloyd Guth Visiting Lecture 

in Legal History, and to follow the excellent inaugural lecture by Chief 

Justice McLachlin on “Louis Riel: Patriot Rebel.” I give special thanks 

to my long-time friend DeLloyd Guth. Among the many reasons why 

DeLloyd is so well-loved by his students and colleagues are his irrepressible 

intellectual curiosity and his unbounded, contagious enthusiasm for 

everything he teaches and studies. 

About ten years ago, your own Justice Robert Sharpe wrote a review 

essay of a book entitled The Most Fundamental Legal Right: Habeas Corpus in 

the Commonwealth. 1 Justice Sharpe discussed the view that seemed to be 

gaining momentum in England that habeas corpus should be absorbed into 

the doctrine of judicial review. 2 He quoted Lord Justice Simon Brown’s 

reassurance – “Bring habeas corpus into the evolving process of judicial 

review and I do not think the judges will fail you.” 3 

Justice Sharpe, however, said that this analysis… 

 

St Thomas More Professor of Law and Legal History, Georgetown University Law 

Center. 

1 

Justice Robert J Sharpe, Book review of The Most Fundamental Legal Right: Habeas 

Corpus in the Commonwealth by David J Clark & Gérard McCoy (2001) 1 OUCLJ 287. 

2 

Ibid at 290-292. 

3 

Ibid at 292.


… reflects a preoccupation with procedural and remedial tidiness that is 

uncharacteristic of the English common law tradition. The rich historical hodgepodge 

of factors and influences shaping habeas corpus has . . . traditionally been 

used to ensure that important constitutional principles are followed and that the 

law is sufficiently supple and flexible to achieve justice in a wide variety of cases. 4 

He said, further, that “the writ remains an important residual 

constitutional remedy available to protect personal liberty when all else 

fails,” and “[u]nfortunately, all else does sometimes fail.” 5 

In the United States, the Suspension Clause of the United States 

Constitution states that “[t]he Privilege of the Writ of Habeas Corpus shall 

not be suspended, unless when in Cases of Rebellion or Invasion the 

public Safety may require it.” 6 In 2001, the same year when Justice Sharpe 

wrote his review essay, the Supreme Court of the United States decided 

the case of Immigration and Naturalization Service (“INS”) v St Cyr. 7 Justice 

Stevens in his majority opinion declared that “at the absolute minimum, 

the Suspension Clause protects the writ ‘as it existed in 1789.’” 8 This 

principle led the Supreme Court in two important decisions in 2004 and 

2008 (Rasul v Bush 9 and Boumediene v Bush 10 ) – to explore whether 

prisoners held by the United States government at Guantanamo Bay have 

the right to a hearing in a United States federal court by filing a writ of 

habeas corpus. In both cases, by a bare majority of the justices, the Court 

said yes. Along the way, legal historians in the United States, England, and 

Australia played a background part by filing amicus briefs addressing the 

historical scope and geographic reach of the habeas corpus writ in England 

and America in the late eighteenth century. That is the story I will tell 

today. 

There are actually three stories. One is the background part played by 

the amicus briefs of legal historians. The second is the Court’s disposition 

of two hard questions – whether habeas would run from a United States 

court to Guantanamo Bay in Cuba, and whether the writ could be 

4 

Ibid. 

5 

Ibid. 

6 

US Const art I, § 9, cl 2. 

7 

533 US 289 (2001) [St Cyr]. Enrico St. Cyr was, at the time, a legal immigrant in the 

United States. 

8 

Ibid at 301, quoting Felker v Turpin 518 US 651 at 663-64 (1996). 

9 

542 US 466 (2004) [Rasul]. 

10 

553 US 723 (2008) [Boumediene].

Habeas Corpus, Legal History, and Guantanamo Bay 363 

declared by Congress to be off limits to legal immigrants in the United 

States or to Guantanamo detainees. The third is whether, if the writ did 

run to Guantanamo (as the Court ultimately held), it would make much 

of a difference. 

Let us start with the third question and then work backwards. Has the 

availability of the writ of habeas corpus to Guantanamo detainees made a 

difference? 

As I will later explain, in Boumediene, the majority opinion by Justice 

Kennedy held that the Detainee Treatment Act of 2005 11 represented an 

unconstitutional suspension of the writ of habeas corpus because it did not 

provide detainees with the opportunity to present exculpatory evidence 

that had not been presented in earlier proceedings. He also did not 

require detainees to exhaust their remedies under the DTA due to the 

length of time detainees had been held at Guantanamo Bay. In a 

concurring opinion joined by Justices Ginsburg and Breyer, Justice Souter 

emphasized the long periods of detention, stating (in 2008): 

After six years of sustained executive detentions in Guantanamo, subject to 

habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no 

judicial victory, but an act of perseverance in trying to make habeas review, and 

the obligation of the courts to provide it, mean something of value both to 

prisoners and to the Nation. 12 

In the January 8, 2012 Sunday New York Times, an op-ed piece written 

by Lakhdar Boumediene and entitled “My Guantanamo Nightmare” was 

published. 13 Mr. Boumediene noted the passage of the tenth year 

anniversary of the detention camp at Guantanamo Bay, stating that for 

seven of those ten years, “I was held there without explanation or charge.” 

He stated also that during that time his daughters grew up without him, 

and they “were never allowed to visit or to speak to me by phone.” 

Boumediene described his two-year hunger strike during which he was 

force-fed through a feeding tube. Finally, in 2008, Judge Richard Leon of 

the federal district court in Washington, on remand from the Supreme 

Court, ordered the government to free Boumediene along with four other 

men who had been arrested in Bosnia. Boumediene said that he would 

“never forget sitting with the four other men in a squalid room at 

11 

§ 1005(e)(2)(A), 119 Stat 2742 [the DTA]. 

12 

Boumediene, supra note 10 at 801. 

13 

The New York Times (8 January 2012) SR9.


Guantanamo, listening over a fuzzy speaker as Judge Leon read his 

decision in a Washington courtroom.” Judge Leon implored the 

government not to appeal his ruling, because “seven years of waiting for 

our legal system to give them an answer to a question so important is, in 

my judgment, more than plenty.” Boumediene was, at last, freed on May 

15, 2009, and today he lives in Provence with his wife and children and a 

new baby boy, Yousef. 

Presently, 171 prisoners remain in custody at Guantanamo Bay. 

According to the Washington Post, the Obama administration concluded in 

2009 that 36 of these could be prosecuted. 14 Meanwhile, since the 

Boumediene decision, the federal courts have been busy dealing with habeas 

corpus petitions from Guantanamo prisoners. According to the 

“Guantanamo Habeas Scorecard” maintained by the Center for 

Constitutional Rights, 57 habeas cases as of February 9, 2011 had been 

decided; habeas was granted in 37 of these, denied in 20. 15 

Most of the habeas hearings have been held in the federal courts in 

Washington, DC. Many of the decisions by the federal district court—both 

those granting and those denying the writ—were appealed to the DC 

Circuit Court of Appeals. Of the cases heard by the DC Circuit on the 

merits, the total number in which the prisoner prevailed is zero. This 

striking fact led Professor Stephen Vladeck of the American University 

Law School in Washington, and others, to accuse the DC Circuit “of 

actively subverting Boumediene by adopting holdings and reaching results 

that have both the intent and effect of vitiating the Supreme Court’s 2008 

decision.” 16 This is not the occasion to assess the critics’ claim, but a brief 

summary of basic principles either confirmed or established by the DC 

Circuit Court of Appeals can be given. 

The fundamental standard of review under the 2001 statute, 

Authorization for Use of Military Force (AUMF), 17 is whether, by a 

preponderance of the evidence, the government has shown that a prisoner 

14 

Peter Finn, “Plea Agreement for Terror Suspect Sparks a Debate”, Washington Post (2 

March 2012) A3. 

15 

“Guantanamo Habeas Scorecard” Center for Constitutional Rights (9 February 2011), 

online: . 

16 

Stephen I Vladeck, “The DC Circuit after Boumediene” (2011) 41 Seton Hall L Rev 

1451 at 1453. 

17 

Pub L No 107-40, 115 Stat 224.


was “part of, or substantially supported, Taliban or al Qaida forces or 

associated forces that are engaged in hostilities against the United States or 

its coalition partners.” 18 Hearsay evidence is always admissible, to be given 

probative weight according to whatever indicia of reliability are present in 

a given case. 19 The government’s evidence, moreover, is entitled to a 

“presumption of regularity.” 20 

In the “presumption of regularity” case, Latif v Obama, the sharply 

divided views among the judges on the DC Circuit are on vivid display. 

Dissenting Judge Tatel claimed that the court, by the majority opinion, 

had “moved the goalposts” by imposing the new presumption, especially as 

applied to the government’s report of the evidence against Latif—a report 

“produced in the fog of war by a clandestine method that we know almost 

nothing about.” 21 The majority, in response, called Judge Tatel’s premises 

“false,” explaining that “the district court has operated under a case 

management order that specifically authorized reliance on evidentiary 

presumptions.” 22 Judge Tatel in his dissent argued further that the 

majority compounded its improper use of the presumption of regularity by 

undertaking “a wholesale revision of the District Court’s fact finding.” 23 

The majority, by contrast, said that the court was required to “view the 

evidence collectively rather than in isolation,” 24 and “A habeas court’s 

failure to do so is a legal error that we review de novo, separate and apart 

from the question of whether the resulting findings of fact are clearly 

erroneous in themselves.” 25 

In what seems almost a sardonic conclusion, the DC Circuit Court in 

Latif remanded the case to the district court “[i]n light of the District 

Court’s expertise as a fact finder and judge of credibility,” 26 despite what 

the appellate court called the possible “waste of time and resources.” The 

18 

Al Alwi v Obama 653 F (3d) 11 at 15 (2011), citing Al Alwi v Bush, 593 F Supp 2d 24 

at 27 (2008). 

19 

Kandari v US 462 Fed Appx 1 (2011), WL 6757005 (CADC). 

20 

Latif v Obama, 666 F (3d) 746 at 747 (2011). 

21 

Ibid at 772. 

22 

Ibid at 749 citing In Re Guantanamo Bay Detainee Litig., 2008, U S Dist D LEXIS, 

97095, at 104 (DDC 6 November 2008). 

23 

Ibid at 771. 

24 

Ibid at 759. 

25 

Ibid. 

26 

Ibid at 764.


majority also remarked on the amount of ink already spilled on the case, 

illustrating the fact that “Boumediene’s airy suppositions have caused great 

difficulty for the Executive and the courts.” 27 The author of the majority 

opinion, Judge Janice Rogers Brown, minced no words. In her view, 

“Boumediene fundamentally altered the calculus of war.” 28 In a concurring 

opinion, Judge Karen LeCraft Henderson scorned the dissent’s “highpitched 

rhetoric,” and stated her view that “remand for further fact-finding 

will be a pointless exercise.” 29 

Now let us regroup and consider briefly the history of “the Great 

Writ.” One legal historian who provided invaluable help to the drafters of 

the amicus briefs of legal historians in the Rasul and Boumediene cases was 

Paul Halliday of the University of Virginia History Department. Professor 

Halliday’s extraordinary archival research in England eventually 

culminated in the publication of a superb book, Habeas Corpus: From 

England to Empire, published in 2010 by the Belknap Press at Harvard. 30 In 

giving a bare bones sketch of the background of habeas corpus, I rely 

entirely on Professor Halliday’s recent book. I do so because the work is 

revisionist in the very best sense—it revises the history of habeas corpus on 

the basis of the methodical, tedious, exhausting examination of thousands 

of surviving original writs in the records of the Court of King’s Bench in 

London. Professor Halliday sampled writs from every fourth year from 

1502 to 1798, covering over 2,750 prisoners. With hard-earned 

justification, he states in his introduction that if we “read Coke, 

Blackstone, and a handful of printed reports,” and we “claim to know 

what the law was in 1789 or some other moment” while “countless 

parchment court records and case reports surviving only in manuscript lie 

unread in the archives, then we have been derelict as historians.” 31 

Professor Halliday tells us that the little-studied “writs, rolls, and 

rulebooks” of the Court of King’s Bench “are indispensable for situating 

27 

Ibid citing the dissenting opinions in Boumediene by Chief Justice Roberts and Justice 

Scalia. 

28 

Ibid. 

29 

Ibid at 765. 

30 

Paul D Halliday, Habeas Corpus: From England to Empire (Cambridge: Harvard 

University Press, 2010). 

31 

Ibid at 3.


habeas corpus in the worlds of law and living that constituted England the 

Empire.” 

Professor Halliday sees the emergence of “the Great Writ,” as habeas 

corpus came to be called, as a development of the early seventeenth century 

in the influential hands of three King’s Bench Chief Justices—Sir John 

Popham, Sir Edward Fleming and Sir Edward Coke. Together, they 

transformed habeas from a disjointed pattern of assorted judicial writs 

used primarily to bring people before the court, into a writ that 

implemented the King’s prerogative to know why any of his subjects, 

throughout the King’s dominions, was under detention. 

Yes, as we all know, one of the many provisions of the Magna Carta 

says that no free man is to be arrested or imprisoned “except by the lawful 

judgment of his peers or by the laws of the land,” 32 and many attempts 

have been made to link habeas corpus to this somewhat vague guarantee. 

After all, as Professor Halliday states, “Magna Carta is as close to scripture 

as English law comes.” 33 But a linear narrative reaching back to 1215 is 

simply not sustainable by the historical sources, especially the documents 

that embodied the actual practices being followed. Those manuscripts 

survive, “especially the bundled writs and returns,” and they “have lain 

largely untouched since they were made.” 34 Professor Halliday estimates 

that in the years between 1500 and 1800, “more than 11,000 people used 

habeas corpus.” 35 

These records tell a story that reshapes our understanding of the 

evolution and uses of habeas corpus, and for this we legal historians are in 

Professor Halliday’s debt. From his careful research, we must accept two 

fundamental conclusions: First, that from the early seventeenth century 

the writ was understood and used to implement the King’s prerogative to 

demand to know from jailors or persons holding others captive the basis 

for incarceration or detention. Second, by the middle of the eighteenth 

century, “the writ was being used to inspect those forms of detention that 

32 

Reproduced in JC Holt, Magna Carta, 2d, ed (Cambridge: Cambridge University 

Press, 1992) at 461. 

33 

Paul D Halliday, supra note 30 at 15. 

34 

Ibid at 28. 

35 

Ibid.


involved no allegation of wrongdoing,” 36 or at least no alleged criminal 

wrongdoing. 

Now to backtrack to the first and second of my three stories – the 

amicus briefs of legal historians and the Supreme Court decisions 

culminating in Boumediene. Before 2001, the idea of becoming counsel of 

record on an amicus brief of legal historians to be filed before the US 

Supreme Court had never occurred to me. Unexpectedly, I received a call 

from California from a man named Lucas Guttentag, whom I had never 

met and who was, I learned later, the Founding Director of the 

Immigrants’ Rights Project for the American Civil Liberties Union. Lucas 

had a proposition for me. He described a lawsuit that was pending in 

federal court that raised important questions about immigrants’ rights. 

Among other things, the case involved the extent to which immigrants’ 

rights had been cut off by the 1996 amendments to federal immigration 

statutes, and whether immigrants who were facing deportation would have 

access to the writ of habeas corpus. Guttentag stated there was a possibility 

that the case would reach the Supreme Court on a petition for certiorari. If 

this happened, he wanted to know whether I would be willing to put 

together an amicus brief of legal historians to lay out the historical scope 

of habeas corpus in the founding era, as practiced in England and America. 

I said that it was a novel proposition for me, but I would think about it 

and Lucas should call again in the event cert was granted. 

Lucas, of course, did call again to say that cert had been granted. 

Meanwhile, I had canvassed opinions from legal history colleagues at 

Georgetown and elsewhere, and the consensus was that an amicus brief of 

legal historians was a bad idea. Fundamentally, colleagues were skeptical 

that legal historians could agree on the basic principles governing habeas 

corpus during the founding era. There was also uncertainty about what 

such a brief could accomplish, and even assuming that a unified view 

could be articulated, whether leading legal historians would be willing to 

sign such a brief. 

With not a little anxiety, however, I decided to attempt the amicus 

brief, in partnership with Michael Wishnie, an Associate Professor of 

Clinical Law at NYU Law School. The first stage was to prepare a careful 


Ibid at 32.


draft of the proposed brief, introduced by a clear statement of the 

objective. For the objective, we wrote the following: 

The professional interest of amici curiae legal historians is in ensuring that the 

Court is fully and accurately informed respecting the historical precedent, 

understandings and evidence on the scope and availability of the writ of habeas 

corpus that, under this Court’s precedents, are properly considered in evaluating 

the issues raised under the Suspension Clause. 

The draft was then developed to establish the following fundamental 

points: 

1. That by the eighteenth century, habeas corpus was granted to review the 

legality of detention in a variety of civil contexts; 

2. That habeas review encompassed questions of law including questions of 

statutory interpretation; 

3. That at common law, the writ ran throughout the sovereign’s territory and 

applied to all persons within, including aliens; and 

4. That under American law in the colonies and early republic, habeas corpus 

was generally available to review the legality of civil confinement, without 

limitation as to the nature of the illegality asserted or citizenship. 

In the end, we were gratified that twenty-one leading legal historians from 

English and American universities signed as amici. 

The St Cyr case was a by-product of congressional efforts to tighten 

federal immigration statutes, as provided in two acts—the Antiterrorism and 

Effective Death Penalty Act of 1996 37 and the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996. 38 The Court’s succinct description of 

the petitioners’ plight was as follows: 

Respondent, Enrico St.Cyr, is a citizen of Haiti who was admitted to the United 

States as a lawful permanent resident in 1986. Ten years later, on March 8, 1996, 

he pleaded guilty in a state court to a charge of selling a controlled substance in 

violation of Connecticut law. That conviction made him deportable. Under pre- 

AEDPA law applicable at the time of his conviction, St. Cyr would have been 

eligible for a waiver of deportation at the discretion of the Attorney General. 

However, removal proceedings against him were not commenced until April 10, 

1997, after both AEDPA and IIRIRA became effective, and as the Attorney 

General interprets those statutes, he no longer has discretion to grant such a 

waiver. 39 

37 

Pub L No 104-132, 110 Stat 1214. 

38 

Pub L No 104-208, 110 Stat 3009-546. 

39 

St Cyr, supra note 7 at 2275.


In his habeas corpus petition, St. Cyr claimed that the 1996 amendments 

should not apply to him because they should not have been considered 

retroactive. That argument did not need to be addressed by the amicus 

brief of legal historians, but section 401(e) of the AEDPA was relevant. 

That section was entitled “Elimination of Custody Review by Habeas 

Corpus.” As the majority opinion by Justice Stevens stated, this title would 

seem to support the INS position that habeas corpus was no longer available 

to the petitioner. 40 Was this an apparent suspension of habeas corpus for a 

class of people who would otherwise have had the benefit of the writ? The 

1996 immigration amendments were obviously not driven by the need for 

public safety due to Rebellion or Invasion. Nevertheless, the suggestion of 

suspension in the title of section 401(e) was dispelled by the fact that the 

actual text of the section merely repealed a subsection of earlier statutes 

without reference to habeas corpus. 

On the basic question of the availability of the writ to non-citizen 

immigrants in the United States who were in detention pending 

deportation, Justice Stevens declared, as noted earlier, that “[a]t the 

absolute minimum, the Suspension Clause protects the writ ‘as it existed 

in 1789.’” 41 Justice Stevens explained that “[a]t its historical core, the writ 

of habeas corpus has served as a means of reviewing the legality of Executive 

detention, and it is in that context that its protections have been the 

strongest.” 42 In support of this proposition, he stated that “[i]n England 

prior to 1789, in the Colonies, and in this Nation during the formative 

years of our Government, the writ of habeas corpus was available to 

nonenemy aliens as well as to citizens.” 43 As authority for the latter 

statement, Justice Stevens cited King’s Bench cases from the late 

eighteenth century, with a “see also” to the “Brief for Legal Historians as 

Amici Curiae.” 44 This, together with two additional citations by Justice 

Stephens, 45 satisfied us that the brief had accomplished, at least in some 

measure, its stated objective. 

In dissent, Justice Scalia made the following claim: 

40 

St Cyr, supra note 7 at 308. 

41 

Ibid at 301. 

42 

Ibid. 

43 

Ibid. 

44 

Ibid at note 16. 

45 

Ibid at notes 19 and 23.

Habeas Corpus, Legal History, and Guantanamo Bay 371 

An exhaustive search of cases antedating the Suspension Clause discloses few 

instances in which courts even discussed the concept of executive discretion; and 

on the rare occasions when they did, they simply confirmed what seems obvious 

from the paucity of such discussions—namely, that courts understood executive 

discretion as lying entirely beyond the judicial ken. 46 

This, however, failed to recognize the distinction between eligibility 

for discretionary relief and the favorable exercise of that discretion. All St. 

Cyr sought “was an order compelling the Attorney General to give him a 

… hearing, not an order to compel the Attorney General to exercise his 

discretion in St. Cyr’s favor.” 47 

After the St Cyr case, there was no reason to anticipate further 

chapters in the amicus adventure of legal historians, much less episodes 

arising out of Guantanamo Bay. Three years later, however, the case of 

Rasul v Bush 48 came before the Court, and Mike Wishnie and I were again 

enlisted to fashion another amicus brief of legal historians, assisted this 

time by other academics and practitioners. 49 The fundamental question in 

the Rasul case was whether federal courts had jurisdiction to review habeas 

corpus petitions filed on behalf of persons detained by the United States at 

Guantanamo Bay. 50 

Specifically, the question was whether the writ would reach leasehold 

territory located within the geographical boundaries of another sovereign 

nation (Cuba). The stated objective of the signers of the amicus brief was 

the same as that in INS v St Cyr, merely to ensure that… 

… the Court is fully and accurately informed respecting the historical precedent, 

understandings and evidence regarding the history of English law and the scope 

and availability of the writ of habeas corpus that, under this Court’s precedents, 

are properly considered in evaluating the issues raised under the Suspension 

46 

Ibid at 343. 

47 

See J Oldham and MJ Wishnie, “The Historical Scope of Habeas Corpus and INS v St 

Cyr” (2002) 16 Geo Immig LJ 485, 501. 

48 

Supra note 9. 

49 

Among them, Daniel Hulsebosch, then on the faculty of St. Louis University Law 

School (now on the NYU Law School faculty) and Jonathan Hafetz, then an associate 

in the law firm representing the petitioners (now on the faculty at Seton Hall 

University Law School). 

50 

Supra note 9 at 466.


Clause of the United States Constitution and the statutory codification of the 

writ. 51 

This time, twenty-four legal historians signed the brief. One of the 

newcomers was Professor Paul Halliday. 

In preparing the amicus brief, we assembled precedents to 

demonstrate that habeas corpus in England in the late eighteenth century 

extended to territories well beyond the realm. One well known example 

involved the Quebec Act of 1774, showing that “habeas corpus was viewed 

as so fundamental that it should operate even in a conquered land in 

which other core elements of the ancient constitution—common law 

property tenures and a local assembly—were avoided.” 52 The writ was even 

available “in territories held by merchant companies like the British East 

India Company pursuant to a grant of authority from the English 

Crown.” 53 The brief also discussed the power of the central English courts 

in London to issue the common law writ of habeas corpus to territories 

overseas, the ability of alleged “enemy aliens” to obtain review of their 

classification by the writ of habeas corpus, and the incorporation of the writ 

of habeas corpus into the Suspension Clause of the United States 

Constitution after independence. 

In what quickly became a landmark decision, the Supreme Court in 

Rasul decided (five to four) that the writ of habeas corpus did extend to the 

prisoners at Guantanamo Bay. The majority opinion was again written by 

Justice Stevens. The Court of Appeals in Rasul had relied upon a 1950 

decision by the Supreme Court, Johnson v Eisentrager, 54 construing that case 

to hold that “‘the privilege of litigation’ does not extend to aliens in 

military custody who have no presence in ‘any territory over which the 

United States is sovereign.’” 55 In the Supreme Court, however, the 

majority opinion concluded that the Eisentrager case was distinguishable, 

and among other reasons, supported its decision by observing that 

extending the writ to persons detained at Guantanamo was “consistent 

51 

Amicus Brief of Legal Historians, Rasul v Bush supra note 9 at 1 (Nos 03-334, 03-343) 

2004 WL 96756. 

52 

Ibid at 12. 

53 

Ibid. 

54 

Johnson v Eisentrager 339 US 763 (1950). 

55 

Supra note 9 at 473, citing 321 F (3d) 1134 at 1144 (Court of Appeals CA DC 2003).


with the historical reach of the writ of habeas corpus.” 56 The Court quoted 

from an opinion by Lord Mansfield in 1759: “Even if a territory was ‘no 

part of the realm,’ there was ‘no doubt’ as to the court’s power to issue 

writs of habeas corpus if the territory was ‘under the subjection of the 

Crown.’” 57 This time, the Court did not cite expressly to the amicus brief 

of legal historians, but the brief nonetheless had its effect, since many of 

the cases cited in the brief were cited in turn by Justice Stevens. Again, 

Justice Scalia was vigorous in dissent, claiming: 

All of the dominions in the cases the Court cites — and all of the territories 

Blackstone lists as dominions . . . are the sovereign territory of the Crown: 

colonies, acquisitions and conquests, and so on. It is an enormous extension of 

the term to apply it to installations merely leased for a particular use from 

another nation that still retains ultimate sovereignty. 58 

The third and most recent amicus brief of legal historians was filed in 

the case of Boumediene v Bush, decided by the Supreme Court in June 

2008. 59 This time, twenty-five legal historians signed on, and the same 

objective was stated as in previous amicus briefs. The legal landscape had 

changed since the Rasul case, as is evident in the first sentence in our brief, 

which read as follows: 

This case raises the question of whether the Military Commissions Act of 2006, 60 in 

combination with the Detainee Treatment Act of 2005, 61 constitutes an 

unconstitutional suspension of the writ of habeas corpus by limiting access to 

federal courts by persons detained by the United States at the United States 

Naval Base in Guantanamo Bay, Cuba. 62 

The Supreme Court held (yet again by a five to four vote, but this time 

with the majority opinion written by Justice Kennedy) that the 

Guantanamo Bay petitioners did have the habeas corpus privilege, and that 

the procedures for review of the detainees’ status in the Detainee Treatment 

Act of 2005 “are not an adequate and effective substitute for habeas corpus” 

and, “Therefore § 7 of the Military Commissions Act of 2006 … operates as 

56 

Ibid at 481. 

57 

Ibid at 482, citing R v Cowle, 2 Burr 834 at 854-55 (1759). 

58 

Ibid at 503. 

59 

Boumediene, supra note 10. 

60 

Pub L No 109-366, 120 Stat 2600 [the MCA]. 

61 


62 

Amicus Brief of Legal Historians, Boumediene, supra note 10 (nos 06-1195,06-1196) 

2007 WL 2441583 [Boumediene Amicus Brief].


an unconstitutional suspension of the writ.” 63 Section 7 of the MCA was 

an explicit attempt by Congress to overcome the effect of the Rasul case by 

providing, in its first paragraph, as follows: 

No court, justice, or judge shall have jurisdiction to hear or consider an 

application for a writ of habeas corpus filed by or on behalf of an alien detained by 

the United States who has been determined by the United States to have been 

properly detained as an enemy combatant or is awaiting such determination. 64 

In the majority opinion, Justice Kennedy undertook to review in detail the 

historical evidence about the scope of the writ of habeas corpus. He noted 

that the parties had “examined historical sources to construct a view of the 

common-law writ as it existed in 1789—as have amici whose expertise in 

legal history the Court has relied upon in the past,” citing our brief and as 

well the St Cyr case. 65 After his careful review, Justice Kennedy found the 

historical evidence, presented by the parties and in our brief, to be 

informative but not dispositive. 66 The majority opinion nonetheless 

concluded: 

[W]hen the judicial power to issue habeas corpus properly is invoked the judicial 

officer must have adequate authority to make a determination in light of the 

relevant law and facts and to formulate and issue appropriate orders for relief, 

including, if necessary, an order directing the prisoner’s release. 67 

And against this finding, the Detainee Treatment Act was found deficient. 

The Court held: 

[W]e see no way to construe the statute to allow what is also constitutionally 

required in this context: an opportunity for the detainee to present relevant 

exculpatory evidence that was not made part of the record in the earlier 

proceedings. 68 

Thus, “if a detainee can present reasonably available evidence 

demonstrating there is no basis for his continued detention, he must have 

63 


64 

28 USC § 2241. 

65 


66 

Ibid at 746-48. Justice Kennedy included in his historical review a recognition that, 

“By the mid 19 th century, British courts could issue the writ to Canada, 

notwithstanding the fact that Canadian courts also had the power to do so.” See ibid 

at 750. 

67 

Ibid at at 787. 

68 

Ibid at 789.


the opportunity to present this evidence to a habeas corpus court.” 69 And 

finally, detainees are not to be required to exhaust their remedies under 

the DTA before proceeding with their habeas corpus actions, since that 

“would be to require additional months, if not years, of delay.” 70 

Unsurprisingly, Justice Scalia filed a vigorous dissent, relying heavily 

on the Eisentrager case, and additionally claiming that “at English common 

law, the writ of habeas corpus did not extend beyond the sovereign territory 

of the Crown.” 71 He emphasized the Habeas Corpus Act of 1679, claiming 

that this act codified the common-law writ, 72 in his view, “all available 

historical evidence points to the conclusion that the writ would not have 

been available at common law for aliens captured and held outside the 

sovereign territory of the Crown.” 73 In our amicus brief, we pointed out 

that Justice Scalia, in his dissent in Rasul, made the mistake of equating 

the term “subject” with the modern term “citizen.” We also pointed out 

that the term “dominion,” understood in historical context, “is not a legal 

category of land-holding . . . but rather an expressive term implying the 

breadth of the Crown’s reach, applicable to any locale under the de facto 

control of the English Crown.” 74 

For present purposes, further detail about the Court’s lengthy and 

complex opinion in Boumediene need not be given. An aspect of the 

background strategy in shaping the Amicus Brief of Legal Historians, 

however, is worth telling. 

As I have already mentioned, Paul Halliday of the University of 

Virginia History faculty was a signer on the Rasul amicus brief. Three and 

a half years later, when the Boumediene brief was in preparation, Professor 

Halliday’s weary journey through centuries of habeas corpus writs in the 

English archives had ended, and he was on the verge of marketing his 

book manuscript. He also volunteered to help with the brief, sharing with 

us his ground-breaking research. At first, we thought that Professor 

Halliday would again sign the brief, but as our work progressed, we 

69 

Ibid at 790. 

70 

Ibid at 794. 

71 

Ibid at 844. 

72 

Ibid at 845. 

73 


74 

Boumediene Amicus Brief, supra note 61 at nn 4 and 13.


realized that we faced a pragmatic problem. 75 How effective would it be for 

us to be relying on and citing case after case from the English archives that 

were nowhere in print and that had been seen by only a single modern 

scholar? We could contrive to supply the Supreme Court with photocopies 

of the original writs, but could we really expect this to be effective? Would 

the Court be prepared to cite to such manuscript sources—sources that had 

come to the Court’s attention only by the preparation of an amicus brief? 

This seemed altogether unlikely. 

In the end, with our encouragement, Professor Halliday proposed an 

alternative. He would enlist Professor Ted White, a well-established and 

respected constitutional historian on the University of Virginia’s law 

faculty, as a co-author, to write an article that would invoke the 

fundamental lessons of Professor Halliday’s archival research. Even so, we 

were aware that time was of the essence. There was no way to get such an 

article written and in print in time to be relied upon by the Court in 

preparing its opinion. There was nevertheless a long shot possibility, 

thanks to the arrival of the Internet age. There just might be time for 

Professors Halliday and White to get their article written and posted on 

the Social Science Research Network [SSRN]. To our knowledge, the 

Supreme Court had never before cited an article that was merely in draft, 

posted on SSRN, but there would surely be a first time, and perhaps this 

would be it. As, indeed, it was. In his summary review of the development 

of the writ of habeas corpus, Justice Kennedy wrote the following: 

Thus the writ, while it would become part of the foundation of liberty for the 

King’s subjects, was in its earliest use a mechanism for securing compliance with 

the King’s laws. See Halliday & White, The Suspension Clause: English Text, 

Imperial Contexts, and American Implications… (noting that ‘conceptually the writ 

arose from a theory of power rather than a power of liberty’). 76 

In a recent article entitled “The New Habeas Revisionism,” Professor 

Stephen Vladeck of the American University Law School in Washington, 

DC writes that “what is perhaps most frustrating about Boumediene is how 

75 

By “we,” I refer to the brief-writing team—this time headed by myself, Jonathan Hafetz 

(who had by then moved to the Brennan Center for Justice at NYU Law School), and 

three members of the National Litigation Project of the International Human Rights 

Clinic at Yale Law School (Michael Wishnie, having transferred to Yale from NYU; 

Hope Metcalf; and Allard Lowenstein). 

76 



close the Court came to doing right by English history, only to miss the 

forest for a want of trees.” 77 By “a want of trees,” Professor Vladeck refers 

to the end point of Justice Kennedy’s historical analysis—that, “given the 

unique status of Guantanamo Bay and the particular dangers of terrorism 

in the modern age, the common-law courts simply may not have 

confronted cases with close parallels to this one.” Thus, “[w]e decline… to 

infer too much, one way or the other, from the lack of historical evidence 

on point.” 78 

Professor Vladeck states that “[p]ut another way, the Court spent 

seven pages deciding that English legal history, on this critical 

constitutional question, was essentially useless.” 79 I would not characterize 

Justice Kennedy’s opinion that way. The Court’s willingness to look closely 

at the historical record was important, and equally important was the 

Court’s conclusion that the historical record was “informative but not 

dispositive.” The Court was left free to make its own determination about 

whether the Detainee Treatment Act and the Military Commissions Act 

effected a suspension of the writ of habeas corpus, which the Court 

proceeded to do. At the same time, the Court revisited the question of the 

territorial reach of the writ of habeas corpus, and despite discerning no 

compelling historical evidence, concluded that the government’s premise 

that de jure sovereignty was the touchstone for habeas corpus jurisdiction 

had scant support in the history of the common-law writ. The Court 

declared, as it had in Rasul, that “we take notice of the obvious and 

uncontested fact that the United States, by virtue of its complete 

jurisdiction and control over the base, maintains de facto sovereignty over 

this territory.” 80 

II. EPILOGUE 

Professor Vladeck attributes the DC Circuit’s consistent rejection of 

lower court opinions that were favorable to Guantanamo prisoners to the 

influence of four judges—Judges Janice Rogers Brown, Brett Kavanaugh, A. 

77 

Stephen I Vladeck, “Book Review: The New Habeas Revisionism” (2011) 124 Harv L 

Rev 941. 

78 


79 


80 



Raymond Randolph, and Laurence Silberman. 81 How true this claim may 

be I cannot say, but, using the court’s own approach, there may be enough 

in it to create a rebuttable presumption. Judge Brown’s disgust with the 

majority opinion in Boumediene has been indicated. Professor Vladeck 

quotes other disrespectful comments by Judges Randolph and 

Silberman. 82 Vladeck describes Judges Randolph and Silberman as 

“belittling the Supreme Court for what Randolph referred to as the ‘mess’ 

they made, and what Silberman describe as a ‘charade’ prompted by the 

court’s defiant—if only theoretical—assertion of judicial supremacy’ in 

Boumediene.” 83 He also quotes statements by Judges Randolph and 

Silberman that even the preponderance of the evidence standard should 

be discarded as long as there is “some evidence” to support the 

government’s position. 84 

A final case illustration is the DC Circuit’s recent decision in Almerfedi 

v Obama, 85 in which the court reversed and remanded a careful opinion by 

District Judge Paul Friedman, who had concluded that the government’s 

evidence against Almerfedi was insufficient to demonstrate the requisite 

connection to al Qaida or the Taliban. In the majority opinion on review, 

Judge Silberman purported to apply the preponderance of the evidence 

standard. This claim, however, was undercut by his reliance on the 

plurality opinion of the Supreme Court in Hamdi v Rumsfeld, stating that 

“the government must put forth credible facts demonstrating that the 

petitioner meets the detention standard, which is then compared to a 

detainee’s facts and explanation.” 86 Judge Silberman held that the Hamdi 

approach “mirrors” the preponderance standard; therefore, “The 

government’s evidence … must meet at least a certain minimum threshold 

of persuasiveness.” 87 Finally, the majority opinion concluded that “the 

District Court clearly erred” in regarding the statements of a key witness, 

Humoud al-Jadani, as unreliable—as merely “jailhouse gossip.” 88 Judge 

81 


82 

Ibid. 

83 

Ibid at 1455, citing Esmail v Obama, 2011 WL 1327701 at *3 (DC Cir April 8, 2011). 

84 

Ibid at 16, 19. 

85 

Almerfedi v Obama, 654 F (3d) 1 (2011). 

86 

Ibid at 6. 

87 

Ibid. 

88 

Ibid at 9.


Silberman justified this by observing that “[a]lthough this is a factual 

finding of the District Court, it was not a credibility determination based 

on witness testimony.” 89 Judge Kavanaugh joined Judge Silberman, and 

Judge Judith Rogers concurred only in the result. 

In her concurring opinion, Judge Rogers pointed out that the 

preponderance of the evidence standard was based on evidence in the 

record. The obligation on review was for the Circuit Court to find clear 

error regardless of whether factual findings were based on live testimony 

or documentary evidence, 90 and Judge Rogers found nothing in the record 

evidence to justify disregarding the district court’s analysis of the al-Jadani 

statements. She also noted the fact that the government stated for the first 

time in its reply brief that “at the time of al-Jadani’s statements, Almaferdi 

was ‘the only person named Hussain[sic] from Aden at Guantanamo.’” 91 

She drily observed that even if this argument were properly before the 

court, “a website cited in the reply brief as support does not, as asserted, 

assist the government.” 92 

Meanwhile, detention at Guantanamo continues. On September 19, 

2011, the National Law Journal ran an article entitled, “Justice Denied at 

Guantanamo,” by Allison Lefrak, litigation director at Human Rights 

USA, a non-profit organization in Washington, DC. Ms. Lefrak described 

her representation of Guantanamo detainee Ravil Mingazof, who remains 

in Guantanamo Bay eight years after the night he was arrested at a house 

for refugees in Faisalabad, Pakistan. Ms. Lefrak noted that Mingazof 

“remains in Guantanamo more than three years after the US Supreme 

Court issued its opinion in Boumediene v. Bush,” eighteen months after a 

week-long trial at the US District Court for the District of Columbia 

before Judge Henry Kennedy, Jr., and more than a year… 

… after Kennedy issued a comprehensive 42-page opinion methodically analyzing 

each piece of evidence presented by the government, and concluding that, after 

eight years of detention, the government had failed to prove by a preponderance 

89 

Ibid at 7. 

90 

Ibid at 9. 

91 


92 

Ibid. The district court emphasized the fact that the al-Jadani statements referred not 

to Almaferdi by his last name but rather only to “Hussain al-Adeni.” Judge Silberman 

disposed of this by explaining that “the phrase ‘al-Adeni’, in Arabic, means ‘from 

Aden’—which, of course, is Almaferdi’s home” – ibid. at *6.


of the evidence that Mingazof was “a part of or substantially supported” al-Queda 

[sic] or the Taliban. 93 

Quite dispiritedly, Ms. Lefrak then told her client… 

… that the government’s appeal to the US Court of Appeals for the DC Circuit 

is now stayed in light of the government’s motion to present the lower court with 

‘new’ evidence—evidence the government purportedly only located recently, eight 

years after Ravil was arrested in Faisalabad. 94 

In fairness, Ms. Lefrak acknowledged the argument that “this glacial speed 

with which the Guantanamo detainees’ cases move one step forward and 

two steps back in the courts is unfortunate yet necessary to ensure that a 

potential terrorist is not mistakenly released,” and that “there is much at 

stake in each of these cases.” She states that District Court judges “are 

doing what they are supposed to do, and they are doing it well,” but “the 

longer… detainees sit languishing in Guantanamo as their cases gradually 

make their way through the courts (only to face the near inevitable denial 

of the writ from the DC Circuit), the more credibility the US judicial 

system loses.” 95 

III. CONCLUSION 

Despite the obstacles thrown in the way by the DC Circuit Court of 

Appeals, the habeas corpus cases for the Guantanamo Bay prisoners have 

had meaningful effects. According to the Guantanamo Habeas Scorecard, 

as of February 9, 2011, 24 prisoners had been released after habeas was 

granted and the release of others was pending. 96 Military detention 

procedures even more cursory than those applied in the habeas 

proceedings were avoided. 

The amicus briefs of legal historians played, we believe, a useful 

contributory part in the Supreme Court’s recognition in the Rasul and 

Boumediene cases of the extensive geographical reach and substantive scope 

of the writ of habeas corpus at the time of the founding of the republic in 

93 

Allison M Lefrak, “Justice Denied at Guantánamo” The National Law Journal, (19 

September 2011), online: . 

94 

Ibid. 

95 

Ibid. 

96 

Supra note 15.


cases of civil detention. The flexible capacity of the Great Writ to extend 

to detainees their day in court survives. 

As a concluding postscript, I might mention a recent ironic turn of 

events. Much of the agitation about habeas corpus availability for 

Guantanamo prisoners was driven by “a widespread perception that 

military commissions are tilted strongly against defendants, often based on 

the assumption that military officers will come down more harshly than 

federal judges.” 97 This comment was by Professor Matthew Waxman of 

Columbia Law School, who added that, “the record to date tells a very 

different story.” According to Waxman, six military commissions were 

completed over the past decade, and of these, five “ended with relatively 

mild sentences.” Two detainees “have already gone home, and three more 

are scheduled to be repatriated in the next few years.” In a seventh case, 

the government last week reached a plea agreement with the prisoner, and 

more plea deals may be on the way. Federal courts, by contrast, “have been 

comparatively harsh on terrorism suspects.” According to the Washington 

Post article, “Under Obama, only one detainee has been brought into the 

civilian court system from Guantanamo,” and he was convicted, given a 

life sentence, and placed in the super max prison in Colorado, “the 

harshest facility in the US penal system.” 

The fear of leaving detainees in the hands of the military, however, 

persists. The National Defense Authorization Act (NDAA) as originally 

proposed last fall would, according to an article in the National Law 

Journal, “almost certainly be read to allow . . . US citizens and legal 

immigrants” to be arrested in the United States and placed under 

mandatory military detention. 98 In December, however, according to an 

article only last week in the Washington Post, “a compromise was reached 

between Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) requiring 

military custody for non-US citizens who are suspected members of al- 

Qaeda or its affiliates and who have planned or carried out an attack 

against the United States or its coalition partners—unless the President waives 

97 

Peter Finn, “Plea Agreement for Terror Suspect Sparks a Debate”, Washington Post (2 

March 2012) A3. 

98 

Jonathan Hafetz, opinion, “Don’t Extend ‘War on Terrorism’”, National Law Journal 

(24 October 2011), 43. Jonathan Hafetz is one of the co-authors of the amicus brief of 

legal historians in the Boumediene case.


that provision.” 99 And on Tuesday, February 28, 2012, President Obama 

“issued the rules for the waivers, which are so broad that transfer of any 

suspect into military custody is now likely to be rare.” 100 According to one 

observer, “this is essentially a 3,450-word line-item veto, rendering the 

mandatory military detention provision mostly moot.” 101 The article 

quotes a statement by Republican Senators McCain and Ayote that the 

new rules “will require a hearing in the Senate Arms Services Committee.” 

The Guantanamo Bay drama thus continues. But at least, writs of 

habeas corpus running to Guantanamo Bay will continue to be issued, and 

the Constitutional protection of the Great Writ against suspension 

remains intact. 

99 

Sari Horwitz and Peter Finn, “Obama issues waivers for new detention rules”, 

Washington Post (29 February 2012) A10, online: 

[emphasis added]. 

100 

Ibid. 

101 

Ibid. The quote is attributed in the article to Tom Malinowski of Human Rights 

Watch.


Dueling Purchase-Money Security 

Interests Under the PPSA: 

Explaining the Law and Policy Behind 

Section 34(7) 

D A R C Y L . M A C P H E R S O N * 


A 

s a full-time law school academic who teaches the law of secured 

transactions, I am often asked for explanations of the rationales 

behind lesser-used sections of the Personal Property Security Act. 1 

While I am happy to help those who seek my assistance on a one-on-one 

basis, I have also decided to provide some of these explanations in writing 

in order to provide a resource for those who are looking for a more 

tangible place to turn. This article is set out as a series of questions and 

answers and assumes that the reader knows little or nothing with respect 

to the basic concepts of the PPSA. It is intended not as an innovative 

treatise but rather, as a useful explanatory tool for those either utilizing or 

interested in the PPSA. 

* 

Associate Professor, Faculty of Law, University of Manitoba. Associate, Marcel A. 

Desautels Centre for Private Enterprise and the Law, Faculty of Law, University of 

Manitoba. Thanks are owed to Professor Mary Shariff, who provided valuable 

comments on an early draft, and the anonymous peer reviewers of the Manitoba Law 

Journal. Any errors, of course, are mine alone. 

1 

SM 1993, c 14, CCSM c P35 [PPSA].


Subsection 34(7) of the PPSA reads as follows: 

34(7) A non-proceeds purchase money security interest has priority over a 

purchase money security interest in the same collateral or proceeds, if the nonproceeds 

purchase money security interest is perfected 

(a) in the case of inventory, at the date a debtor, or another person at the 

request of a debtor, obtains possession of the collateral, whichever is earlier; and 

(b) in the case of collateral other than inventory, not later than 15 days after a 

debtor, or another person at the request of a debtor, obtains possession of the 

collateral, whichever is earlier. 2 

II. WHAT IS A SECURITY INTEREST? 

While not a comprehensive definition, 3 for the purposes of this 

discussion, a security interest exists where the holder of property (the 

“debtor”) wishes to borrow money from another person (the “creditor”), 

and in order to ensure repayment of the loan, the debtor gives the creditor 

the right to seize personal property of the debtor if the loan is not repaid 

on time. The interest in the debtor’s property given by the debtor to the 

creditor is a “security interest”. 

III. WHAT IS A PURCHASE MONEY SECURITY INTEREST? 

A purchase money security interest also known as a “PMSI” is defined 

by the Act as follows: 

2 

Ibid, s 34(7). 

3 

A full definition can be found in the PPSA, ibid, s 1, sv “security interest”. There are 

certain types of transactions that are not designed to secure the performance of an 

obligation that are nonetheless deemed by the PPSA to be “security interests”. These 

include true leases of more than one year, commercial consignments, and the transfer 

of an account or chattel paper. However, there are two reasons that this paper will not 

deal with these deemed security interests. First, to explain why the PPSA deems these 

agreements to involve security interests is beyond the scope of this paper. 

Second, two types of these deemed security interests are PMSIs. See PPSA, s 1, sv 

“purchase money security interest”. The definition of this term is reproduced below. 

Particular attention should be paid to paragraphs (c) and (d) which deal specifically 

with these deemed interests. However, it would be reasonably rare that this would 

arise in this context, although the possibility does exist. The fact that the security 

interest is one of the “deemed” security interests would not alter the substance of the 

analysis offered below. Therefore, further specific analysis of these “deemed” security 

interests will not be offered here. That will have to wait for another day.

Dueling Purchase-Money Security Interests 385 

"purchase money security interest" means 

(a) a security interest taken or reserved in collateral, other than investment 

property, to the extent that it secures all or part of its purchase price, 

(b) a security interest taken or reserved in collateral, other than investment 

property, by a person who gives value for the purpose of enabling the debtor to 

acquire rights in the collateral, to the extent that the value is applied to acquire 

the rights, 

(c) the interest of a lessor of goods under a lease for a term of more than one 

year, and 

(d) the interest of a consignor who delivers goods to a consignee under a 

commercial consignment, 

but does not include a transaction of sale and the lease back to the seller; and for 

the purpose of this definition, "purchase price" and "value" include credit charges 

or interest payable in respect of the purchase or a loan given to enable the debtor 

to acquire rights in the collateral; 4 

Therefore, in simple terms, a purchase-money security interest is 

where either of the following two things happens. One, the lender is told 

that the loan is to be used to acquire certain property, the money is used 

to acquire that property, and the security interest is granted in that 

property by the debtor. Two, the vendor of the property gives the debtor 

time to pay for the property purchased, and is granted a security interest in 

the property to ensure payment. The former situation is “lender” credit; 

the latter is “vendor” credit. In either case, the creditor receives a PMSI. 

IV. WHY DO WE NEED THE CONCEPT? 

The existence of the PMSI concept is derived from a combination of 

three factors. First, the PPSA allows a secured party to take a security 

interest in personal property that the debtor does not yet own. 5 While the 

security interest will not attach to the property until the debtor has rights 

in that property, 6 it can attach as soon as it is agreed that the property is to 

be given to or used by the debtor. Attachment is the creation of a security 

interest in a particular piece of personal property. 7 The personal property 

in which a security interest is taken is called “collateral”. 8 

4 

PPSA, ibid, s 1 sv “purchase money security interest”. 

5 

This is typically referred to as an “all present and after-acquired property” security 

interest. See PPSA, supra note 1, s 10(1)(d)(iii). 

6 

Ibid, s 12(1)(b). 

7 

See e.g. Ronald CC Cuming, Catherine Walsh, & Roderick J Wood, The Essentials of 

Canadian Law -- Personal Property Security Law, 2d ed (Toronto: Irwin Law, 2012) at 246-


Second, because the secured party has already properly registered a 

financing statement 9 against all property of the debtor, the security interest 

is “perfected”. Perfection, in this context, is the state in which the secured 

party has done everything necessary (as between the secured party and the 

debtor) to achieve the best possible position of the security interest as 

against other claimants to the property. To be perfected, a security interest 

must be attached 10 and a perfecting step must be taken. Under the PPSA, 

two possible perfecting steps exist: (i) registration of a financing statement 

in the public registry (also called the “Personal Property Registry” or 

“PPR”), 11 or (ii) possession of tangible collateral 12 by the secured party. 13 

For these purposes, we will focus on the former of these perfecting steps. 

Third, as between two security interests, both of which are perfected, 

the first secured party to take a perfecting step will generally have priority 14 

over a security interest where the perfecting step is taken later. 15 

266 [Cuming, Walsh & Wood]. 

8 

PPSA, supra note 1, s 1, sv “collateral”. 

9 

A financing statement is the document filed in the public registry to show that a 

security interest has been taken in one or more pieces of personal property. 

10 

Cuming, Walsh & Wood supra note 7, at 240-246. 

11 

PPSA, supra note 1, s 25. 

12 

Most collateral is tangible, or has some tangible manifestation that can be possessed 

for the purposes of the PPSA. However, some types of collateral (such as an account, 

including an account receivable by the debtor) do not. For obvious reasons, these 

types of collateral cannot be possessed in the traditional sense. 

13 


14 

Priority is the ranking of interests in the collateral if there is a conflict between the 

various interests in the collateral. It is best analogized to a line. The PPSA does not 

limit the number of security interests that can be granted in any piece of collateral. 

Instead, the PPSA is concerned with prioritizing any number of interests in the 

collateral. Sometimes, these interests are security interests as referred in the PPSA. 

Other times, it is the interests of a trustee in bankruptcy (ibid, s 20(b)), other creditors 

who do not have a security interest in the collateral and others involved in assisting 

the creditor in recovering the debt owed (ibid s 20(a)), and sometimes still others such 

as purchasers and lessees of the collateral (ibid, s 20(c) and ss 30-31). Nonetheless, 

there can be other statutes which create the equivalent of security interests, which may 

not be covered by the PPSA. For example, statutorily mandated builders’ and repairers 

liens are not addressed by the PPSA. Statutory liens in favour of government are 

generally not covered. Ibid, s 4(a). Also, transactions that are in substance federallycreated 

security interests are not covered including those under the Bank Act, SC 

1991, c 46, and the Canada Shipping Act, 2001, SC 2001, c 26. See PPSA, supra note, s 

4(k).


The combination of these factors means that without the concept of a 

PMSI, the first secured creditor who was granted an all present and afteracquired 

property security interest would defeat every subsequent secured 

creditor, even if the credit granted by the subsequent secured creditor was 

required for the debtor to survive or expand. 

But many creditors are far less likely to extend credit where there are 

no assets of the debtor with respect to which the new creditor will rank in 

priority to all the other creditors. 16 In other words, without the concept of 

a PMSI, at least some types of potential creditors will be less likely to 

extend credit. These factors, therefore, may actually reduce the sources of 

credit when there is an “all present and after-acquired property” security 

interest given by the debtor. 

The concept of a PMSI allows for a special priority rule. 17 More 

specifically, subsection 34(2) provides as follows: 

34(2) Subject to subsection (6) and section 28, a purchase money security 

interest in 

(a) collateral or its proceeds, other than intangibles or inventory, that is 

perfected not later than 15 days after the day the debtor, or another person at the 

request of the debtor, obtains possession of the collateral, whichever is earlier; or 

(b) an intangible or its proceeds that is perfected not later than 15 days after 

the day the security interest in the intangible attaches; 

has priority over any other security interest in the same collateral given by the 

same debtor. 18 

In other words, the fact that something is a PMSI means that, 

provided certain procedural requirements are met, 19 the holder of that 

15 

PPSA, supra note 1, s 35(1)(a). 

16 

It is true that some creditors neither demand, nor expect, security as part of their 

credit arrangements. One example of such a creditor is certain types of trade creditor. 

Imagine a restaurant business that gets meat from a local butcher. The butcher gives 

the restaurant time to pay for the meat (say 30 days). During the 30 days, credit is 

being extended; the restaurant is the debtor, and the butcher is the creditor. With this 

type of credit, it would be unusual for the credit to be given on a secured basis. 

17 

For a discussion of priority, see supra note 14. 

18 

PPSA, supra note 1, s 34(2). 

19 

The procedural elements referred to include registration of a financing statement with 

respect to the collateral within 15 days of possession for most collateral. For 

intangibles, registration of a financing statement with respect to the collateral within 

15 days of attachment is required. “Intangible” is defined in the PPSA. PPSA, ibid, s 1, 

sv “intangible”. For inventory, notice to all parties with potential prior secured parties 

with respect to the collateral and the registration of a financing statement with respect


security interest will have priority over every other security interest in the 

collateral granted by that debtor. 20 The reason for this reversal of the 

general priority rule 21 is that the PMSI is a new asset, in which the reversal 

of priority is not damaging to the interest of the all present and afteracquired 

property security interest holder. 

This rationale is based on three assumptions. First, if the all present 

and after-acquired property security interest holder had lent the money, 

there would have been no need for the PMSI holder to extend credit. 

Therefore, this opens further credit options for the debtor. 

Second, rather than damaging the interest of the holder of the all 

present and after-acquired property security interest, the new asset subject 

to a PMSI increases the size of the total pool of assets available to both the 

debtor (in good times), and to the secured creditors (in the event of 

default by the debtor). If the particular transaction at issue does not have 

this effect of increasing the pool of assets available in this sense, it will not 

be considered a PMSI. 22 

Third, since the all present and after-acquired property security 

interest would rank directly behind any PMSI holder with respect to the 

collateral subject to the PMSI, 23 each payment made with respect to the 

collateral subject to the PMSI would leave more collateral for the all 

present and after-acquired property security interest holder, 24 or at the very 

least should leave no less collateral for the all present and after-acquired 

property security interest holder. 25 

to the collateral prior to possession being acquired by the debtor. “Inventory” is 

defined in the PPSA. PPSA, ibid, s 1, sv “inventory”. 

20 

Ibid, s 34(2). 

21 

Ibid, s 35(1). 

22 

On this point, see e.g. Wheatland Industries (1990) Ltd v Baschuk (1994), 127 Sask R 

178 at paras 15-16, 8 PPSAC (2d) 247 (Sask QB), per Justice Gerein, as he was then 

was. 

23 

It is quite clear that many concepts under the PPSA, including priority, are 

determined on each individual piece of collateral, not the global asset base of the 

debtor. 

24 

This is true in the sense that with each payment made with respect to the asset that is 

subject to the PMSI, the amount owing to the holder of the PMSI is reduced, and the 

debtor’s equity in that asset is concomitantly increased, thereby increasing the security 

of the all present and after-acquired property security interest holder. 

25 

Even if the value of the asset that is subject to a PMSI decreases more quickly than the 

payments that being made to repay the creditor, the fact remains that without the

V. WHAT ARE PROCEEDS? 


Proceeds are personal property that result from a dealing by the debtor 

with respect to the collateral, 26 provided that the proceeds are either 

identifiable or traceable to the original collateral. 27 For example, imagine 

that a debtor has financed the purchase of a stove as part of a restaurant 

business. The Bank has provided the financing. Later, an appreciative 

customer gives an even newer and better stove to the restaurant. 28 

Therefore, the restaurant wants to sell the financed stove, and does so to 

another restaurant just outside of town. The second restaurant pays the 

first restaurant by cheque. The cheque is cashed into the first restaurant’s 

bank account. The cash is then withdrawn by the first restaurant, and used 

to purchase new coffee pots for the business. All of the following will be 

proceeds of the stove: 

i. the cheque - defined as an “instrument” under the PPSA; 29 

ii. the bank account into which the cheque was deposited - 

defined as an “account” under the PPSA; 30 

iii. the cash - defined as “money” under the PPSA 31 and 

iv. the coffee pots - defined as “equipment” under the PPSA. 32 

The dealing may or may not be authorized 33 by the secured party. 34 If 

the dealing is authorized, 35 the rights of the secured party are different 

PMSI, the collateral subject to the PMSI would never have been added to the asset 

pool. In any event, it would therefore not have been available to the all-present and 

after-acquired property security interest holder. 

26 

PPSA, supra note 1, s 1, sv “proceeds”. 

27 

Cuming, Walsh & Wood supra note 7 at 552-584, particularly at 555-556, and at 566- 

567. 

28 

In this scenario, the new stove would not be proceeds of the older stove, because the 

debtor acquisition of the new stove did not result from a dealing with the old stove. 

For a discussion the term “dealing” in this context, see Cuming, Walsh & Wood, ibid, 

at 565-566. 

29 

PPSA, supra note 1, s 1, sv “instrument”. 

30 

PPSA, ibid, s 1, sv “account”. 

31 

PPSA, ibid, s 1, sv “money”. 

32 

PPSA, ibid, s 1, sv “equipment”. 

33 

The authorization may be express or implied. On this point, see Cuming, Walsh & 

Wood supra note 7 at 560-562. 

34 


35 

For a discussion of the meaning of authorization in this context, see e.g. Lanson v


than if it is unauthorized. 36 Regardless, the PPSA does not itself prevent 

the debtor from selling the collateral to a third party. 37 The important 

thing to remember at this point is that the debtor can dispose of the 

collateral without the permission of the secured party. This may transfer 

the property in the collateral, even if the security agreement may 

specifically prohibit it. 38 

VI. HOW CAN THERE BE TWO PMSIS IN THE SAME 

COLLATERAL? 

There are a number of ways that this can arise. For present purposes, 

the scenario envisioned by the priority rule referred in subsection 34(7) is 

as follows: Debtor purchases an industrial stove for commercial use by 

Debtor from Creditor #1. This is done on credit, and Creditor #1 is the 

seller of the stove, and properly registers a financing statement against the 

name of the debtor, within 15 days of the debtor taking possession of the 

collateral. Pursuant to subsection 34(2), therefore, Creditor #1 has taken a 

PMSI in a good that is not inventory, 39 and should defeat all other security 

Saskatchewan Valley Credit Union Ltd (1998), 172 Sask R 106, 14 PPSAC (2d) 71, (CA) 

per Justice Vancise, for the Court. 


If a dealing is authorized, for example, the dealing will cut off the security interest in 

the original collateral. This will leave the secured party with an interest in the 

proceeds of the original collateral. If the dealing is not authorized, on the other hand, 

the security interest will generally continue in the original collateral (subject to certain 

exceptions) and the proceeds thereof as well. See PPSA, supra note 1, s 28. 

37 

Of course, the parties to the security agreement may agree as between themselves that 

the sale of the collateral is not permitted. The security agreement is the agreement to 

provide the security interest. See PPSA, supra note 1, s 1, sv “security agreement”. The 

relationship between the parties to the security agreement is determined by the rules 

relating to contract. PPSA, supra note 1, s 9. The parties to the security agreement are 

the debtor and the secured party. 

38 

On this point, see e.g. Royal Bank of Canada v Gatekeeper Leasing Ltd [1994] 6 WWR 

706, 17 DLR 305, per Justice Dorgan. Some authors even say that in order for the 

dealing to not be authorized, the dealing by the debtor must be “wrongful”. On this 

point, see Cuming, Walsh and Wood supra note 7 at 560-562. 

39 

It is the debtor’s intended use of the good as at the date of attachment that 

determines whether a good is categorized as consumer goods, inventory, or 

equipment. See PPSA, supra note 1, s 2(2). “Consumer goods”, “inventory”, and 

“equipment” each has its own definition within the PPSA. See PPSA, supra note 1, s 

1, sv “consumer goods”, “inventory”, and “equipment”, respectively.


interest granted by Debtor in the stove. After four years, Debtor still has 

not completely paid off the stove. Nonetheless, Debtor wishes to trade in 

the stove on a newer model. Creditor #2 has offered to accept a trade-in of 

the older model on the newer model, and will allow Debtor to finance the 

remainder of the purchase-price of the newer model. 

The newer model is clearly “proceeds” of the older one within the 

meaning of the PPSA, in that it is personal property resulting from a 

dealing with collateral (the older model). Therefore, where there is a PMSI 

in the original collateral, and that collateral is dealt with and generates 

other personal property (in this case, the newer model), the creditor gets a 

PMSI in the proceeds as well. This is what is known as a “proceeds PMSI”. 

Therefore, when the debtor disposed of the older model, Creditor #1 

acquired a PMSI in the proceeds of the disposal, namely, the newer model. 

Therefore, Creditor #1 has a proceeds PMSI in the newer model. The 

PMSI in the older model may or may not continue (depending on whether 

the dealing is authorized). It is considered a PMSI in the original 

collateral, and also known as a “non-proceeds” PMSI. Therefore, the 

proceeds provisions of the PPSA give Creditor #1 both: 

i. a proceeds PMSI in the newer model; and 

ii. a non-proceeds PMSI in the older model. 

However, Creditor #2 is the seller of the newer model. Since Creditor 

#2 sold the good and took a security interest in the newer model, as long 

as Creditor #2 properly registers a financing statement against the name of 

the debtor, within 15 days of the debtor taking possession of the collateral, 

Creditor #2 is also entitled to the priority provided for in subsection 34(2) 

of the PPSA. 

In other words, both Creditor #1 and Creditor #2 both hold PMSIs in 

the same collateral of Debtor, namely, the newer model stove, while only 

Creditor #1 holds a PMSI in the older model. Subsection 34(2) does not 

break this tie, because it only provides that a properly registered PMSI 

beats any other security interest in same collateral. It does not distinguish 

between two different security interests, both of which are PMSIs, in the 

same collateral. 

Subsection 34(7) is designed to break the tie between two PMSIs in 

the same collateral, one of which is proceeds of a PMSI in other collateral, 

the other of which is a PMSI taken in the original collateral. In such a 

case, the non-proceeds PMSI beats the PMSI that arises as proceeds.


VII. 

WHY IS THIS THE PROPER CHOICE FROM A POLICY 

PERSPECTIVE? 

In the view of the author the reasoning behind the priority rule 

provided in s 34(7) is sound. Creditor #1 has a fair degree of control over 

the terms of the security agreement between Creditor #1 and Debtor. 

Therefore, Creditor #1 can negotiate to have a provision included in that 

agreement which provides that any disposal of the older model stove 

without the express, written consent of Creditor #1 is a violation of the 

security agreement between Creditor #1 and Debtor. Therefore, when 

Debtor trades in the older model stove, this is a dealing that is not 

authorized. As a result, the wording of the proceeds provision would 

continue to give Creditor #1 first priority on the older model stove and 

Creditor #1 would be second in priority to Creditor #2 on the newer 

model stove. 

On the other hand, if s 34(7) were not present there would be no 

special priority rule to break the tie. In the absence of such a rule the 

general priority rule would govern. Since both interests were perfected by 

registration, the first to register would win the priority contest. 40 In the 

hypothetical posited here, Creditor #1 would rank first on the newer 

model stove. 

Yet, as mentioned earlier, Debtor would never have had rights in the 

newer model stove without the credit provided by Creditor #2. 

Furthermore, if Creditor #1 had wanted to maintain priority over the 

newer model stove, Creditor #1 could have provided either vendor (by 

selling the newer model stove to Debtor) or lender credit (by lending 

Debtor the money to buy the newer model stove) to Debtor. In either case, 

Creditor #2 would not have had a PMSI, and could not assert priority. 

Finally, this is consistent with the doctrine of marshalling. 41 In this 

case, where one creditor (Creditor #1) has an interest in two pieces of 

property (the older model stove and the newer model stove), and another 

creditor (Creditor #2) has an interest in only one of the two pieces of 

property (in this case, the newer model stove), the one creditor, in realizing 

40 

PPSA, supra note 1, s 35(1). 

41 

For a discussion of marshalling, see, for example, Holnam West Materials Ltd v 

Canadian Concrete Products Ltd, 8 PPSAC (2d) 102, [1995] 1 WWR 155 (Alta QB), per 

Justice Bielby (as she then was).


on its security should leave as much of the collateral of the other creditor 

untouched, rather than attempting to realize on the collateral in which 

both secured creditors have an interest, until the value in the other 

available is exhausted. 42 This strategy achieves the maximum benefit for all 

secured creditors of the debtor. Subsection 34(7) achieves largely the same 

goal, in that it does not leave Creditor #2 without a source of recovery, 

while still leaving Creditor #1 with collateral on which it is also first in 

priority, namely, the older model stove. 43 

In the end therefore, the law generally seeks to protect those who 

cannot protect themselves. It does not generally seek to protect those who 

could have protected themselves, but chose not to do so. Creditor #1 

could have protected its own interests through the proper drafting of its 

security agreement with Debtor. It did not do so. If Creditor #1 ranks first 

in priority on the newer model stove, Creditor #2 will have no collateral 

on which it has a first priority. Creditor #2 could not have protected itself 

any better under the PPSA. Creditor #1 could have better protected itself, 

however. Therefore, to encourage Creditor #1 to properly draft its security 

agreement with Debtor, Creditor #2 should win the priority competition 

with Creditor #1 with respect to the newer model stove. Subsection 35(7) 

therefore achieves the proper result, from a policy perspective, in the view 

of the author. 

42 

Marshalling is an equitable doctrine, but it may be used to the extent that it is not 

inconsistent with the express provisions of the PPSA. On this point, see PPSA, supra 

note 1, s 65(2), and see Cuming, Walsh & Wood supra note 7 at 676-678. 

43 

It is also to be remembered that the creation of the proceeds PMSI was, at least from 

the point of Creditor #1, a fortuitous event. Creditor #1 did not cause, through its 

actions, the proceeds to be created. Rather, it was the actions of Debtor and Creditor 

#2 that led to Debtor having rights in the newer model stove. Without the actions of 

Debtor and Creditor #2, Creditor #1 would have been restricted to the older model 

stove in any event. Instead, Creditor #1 is able (with a properly drafted security 

agreement) to maintain its interest in the older model stove, and take an interest in 

the newer model stove, although this interest will rank behind that of Creditor #2. 

Therefore, Creditor #1 can hardly claim to be prejudiced by this outcome.

MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Create successful ePaper yourself

Delete template?

Save as template?