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2011 Volume 35 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 

Student Editor 

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

Summer Student Editor 

ANDREW W. BOUMFORD, B.A., J.D. (2013) 

Editorial Assistants 

KATRINA BROUGHTON, B.A., J.D. (2012) 

BRENDAN HARVEY, B.A., J.D. (2013) 

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

Cover Image 

BRIAN SEED 

Cover Layout 

JENNIFER CHLOPECKI

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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 

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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 

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Winnipeg, Manitoba R3T 2N2

2011 Volume 35 Number 1 

A Review of the Current Legal Landscape 

CONTENTS 

i 

v 

A New Vision for the Manitoba Law Journal 

BRYAN P. SCHWARTZ 

Issue Overview and Introduction 

DARCY L. MACPHERSON 

K E Y N O T E 

1 Louis Riel: Patriot Rebel 

THE RIGHT HONOURABLE BEVERLEY MCLACHLIN, P.C. 

A R T I C L E S 

14 Au-delà des nombres : le droit du public canadien à des services fédéraux 

dans la langue officielle de son choix 

L’HONORABLE MICHEL BASTARACHE, C.C., MARK C. POWER, JEAN-PIERRE 

HACHEY, ET MATHIEU STANTON 

49 Unsettled Estates: Manitoba’s Forgotten Statute and the Chupryk Case 

JOHN IRVINE 

63 Nor-Man Regional Health Authority: Labour Arbitration, Questions of 

General Law and the Challenges of Legal Centrism 

GERALD P. HECKMAN 

84 Gladue: Beyond Myth and Towards Implementation in Manitoba 

DAVID MILWARD AND DEBRA PARKES

111 The National Academy of Sciences, Canadian DNA Jurisprudence and 

Changing Forensic Practice 

SOREN FREDERIKSEN 

143 A Tough Pill to Swallow: Criminal Culpability Arising From an 

Avoidable NCR State 

KEITH LENTON 

181 Legal Research in Canada’s Provincial Appellate Courts 

MELANIE BUECKERT 

201 Fraud and Knowledge of a Pre-Existing Security Interest under the 

Personal Property Security Act: Guidance from Other Jurisdictions for 

Manitoba Courts and Practitioners 

DARCY L. MACPHERSON AND EDWARD D. (NED) BROWN 

217 A House Divided: Access to Partition and Sale under the Laws of 

Ontario and Manitoba 

JOHN IRVINE 

C O M M E N T A R Y 

249 Interview with Donna Miller, Q.C. 

DONNA L. MILLER, Q.C. WITH BRYAN P. SCHWARTZ 

277 The Law Society of Manitoba’s Equity Ombudsperson Program 

BRENLEE CARRINGTON TREPEL 

285 Recent Themes in English Criminal Justice History 

GREG T. SMITH


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

T 

he Manitoba Law Journal was founded over a century ago and has been 

publishing steadily for over fifty years. It began with a view to addressing 

legal developments in the province of Manitoba, but in time it became like 

many other law journals; an eclectic combination of articles about different topics, 

mostly Canadian, but with no particular focus on local developments. 

It is to that original vision that we now return. There is a need for 

independent and scholarly examination of legal developments in our own 

community. There is only one law school in this province, and it is our 

responsibility as a faculty to ensure that such commentary has a home and to do 

our fair share of contributing to its content. 

Members of the professional legal community often cannot step back and 

freely express their views on what is happening or ought to be happening. Elected 

lawmakers must observe party discipline; civil servants cannot openly debate 

official policy; lawyers must advocate their client’s position; judges must address 

the issues presented to them and proceed largely in accordance with the 

constraints created by the letter and logic of existing law and precedent. 

Journalists who cover contemporary legal developments are pressed by deadlines 

and the need to concentrate on the immediate story. 

The law journal format offers all who contribute the opportunity to explore 

and expound in a spirit of free inquiry and expression. It is true that even 

academics do not always take advantage of this; the free movement of the intellect 

can be impaired at times by self-imposed ideological constraints or the desire for 

popularity and influence with those in power. At its best, however, legal 

scholarship can be an opportunity for all who engage in it, whether academics or 

other professionals stepping outside of their usual roles, to contribute to the 

public understanding of how the legal system is operating and what can be done 

to make it more efficient, accessible and just. 

The Manitoba legal system impacts over a million souls, and that is enough to 

warrant its examination in its own right. For those seeking to learn or apply wider 

lessons, however, our own province should not be viewed as peripheral or 

parochial. It is a complex society; a student of it can see how the law interacts with 

almost any problem experienced anywhere in the world. There are very rich 

individuals and some living in desperate poverty. The economy includes 

everything from public and private enterprises of global reach to start-up 

companies and family farms. There is a large Aboriginal population, whose

ii MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1 

ancestors have lived on the plains for millennia, and recent immigrants from 

every inhabited continent and kind of society. As a society perched above the 

United States and drawing on British, French and Aboriginal legal traditions, 

Canada has always been a place where lawyers are natural comparativists: 

professionals who study and adopt or adapt ideas and rules from a wide range of 

sources. 

Those seeking to discover, rather than merely apply, large ideas about law and 

society always have to be inspired by the events of particular societies. Reflection 

on Manitoba’s legal system is as good a place to begin thinking about 

jurisprudence as any. Big ideas proceed from the study of particulars. This is the 

case of science generally. Evolutionary biology is based not only on purely abstract 

reflection, but on learning wider lessons from studying particular species in 

particular times and places; Darwin had his Galapagos finches, Stephen Jay Gould 

his Caribbean snails. Manitoba has much to learn from the rest of the legal world; 

but it is quite possible that analysis of and reflection upon Manitoba’s own legal 

system may yield much that other societies may find interesting or worthy of 

emulation. 

There have been earlier attempts to return to our roots, and we have 

attempted to make use of them. Professor Alvin Esau, as executive director of the 

Legal Research Institute of the University of Manitoba, initiated a special issue 

devoted to Manitoba legal developments. 1 It canvassed case law in various areas, 

and included some statistical analyses, such as the success rate of appeals to the 

Supreme Court of Canada from the Manitoba Court of Appeal. Professor Esau’s 

annual case-law review featured articles by many prominent scholars at the law 

school. Drawing on that model, the first part each year of the new-look Manitoba 

Law Journal will feature a collection of articles, speeches and interviews that looks 

primarily at developments in the courts and administrative tribunals. 

The second part of the Manitoba Law Journal contemplated each year will be 

the continuation of another Manitoba-focused publication, Underneath the Golden 

Boy. A decade ago, inspired by Professor Esau’s annual case-law review, I initiated 

a counterpart journal, Underneath the Golden Boy, to cover legislative 

developments. UTGB was initially a special issue of the Manitoba Law Journal 

under my distinct editorial control, and then became an independently published 

peer-reviewed journal of its own. The journal has been in continuous operation 

for a decade now and has covered a variety of different areas, including profiles of 

new bills enacted in the legislature, often by students in my Legislative Process 

course; articles on legislative reform, such as calling for fixed term elections; a 

series of interviews on “famous legislative crises” in Manitoba; and an exploration 

of voting system reform. Underneath the Golden Boy will again be published as a 

special, autonomously-edited issue of the Manitoba Law Journal. 

1 

(1990) 1 Man LJ was the first.


iii 

As a literary genre, law journals have received stringent criticism. In his 

celebrated “Goodbye to Law Reviews”, 2 Professor Fred Rodell explained that he 

had only two objections to them: their style and their content. The former he 

considered indirect and obscure, the latter he considered scholastic examinations 

of fine doctrinal points rather than addressing real world issues and proposing 

solutions to them. It has been said of much academic writing, including law 

review articles, that it is primarily written to be written (thereby demonstrating the 

author’s learning and eligibility for academic advancement) rather than to be 

read. 

Our objective with the Manitoba Law Journal is to produce a journal that is 

worthy of being read. We want it to be a publication that practitioners, judges and 

ordinary citizens will find accessible, relevant, informative and even enjoyable. We 

hope it will discuss problems of genuine importance in the legal system and 

generate ideas that will lead to practical improvements. 

The Manitoba Law Journal will be open to different philosophical perspectives 

and methodologies of inquiry. Several decades ago, Professor Harry Arthurs 

proposed that the academy concentrate on research about law rather than just 

“on” law. 3 That is, to produce scholarship about the social impact of the law, 

rather than to simply explain and criticize legal doctrine as expounded by judges. 

We believe that both “traditional” and “social science” approaches to law have 

their place. 

Those working within the system, and the public that is exposed to it, want 

and need clear and rational explorations of doctrine. There is a great practical 

need for writing that looks and then organizes the pronouncements of judges and 

tribunals. There are, however, other avenues and subjects for the scholarly study 

of our legal system. Law journals rarely resort to the techniques of modern 

historiography and journalism, such as interviewing people in the field to gain a 

better understanding of both how the system is operating and how it is perceived 

to be operating. Law tends to make only limited use of statistical data and 

analysis. We hope, however, that the methods and conclusions of jurimetric 

analysis will add another dimension to some articles. We look forward to 

including articles and commentaries that make skilful use of such methodologies. 

More generally, we hope that many of our articles will draw effectively on the 

literature of the social sciences, such as economics, criminology, sociology and 

history. 

The Manitoba Law Journal will also take advantage of new methods of 

publication. We have been working to set up a “Manitoba Law Journal Online” 

website. It will provide a medium for publishing articles that have been peer- 

2 

3 

Fred Rodell, “Goodbye to Law Reviews” (1963) 23 Va L Rev 38. 

See Social Sciences and Humanities Research Council of Canada, Law and Learning by Harry W 

Arthurs et al, (Ottawa: Information Division of Social Sciences and Humanities Research 

Council of Canada).

iv MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1 

reviewed and edited long before the print version can appear each year. We also 

hope to include on the website material that may not be suitable for the print 

version for reasons of length or immediacy, but which our readers will find timely 

and significant. 

It has been said that there are two ways to bring light to the world: light your 

own candle or be the mirror for the light of others. With the latter in mind, my 

colleague Professor Darcy MacPherson and I volunteered to take on the 

editorship over a year ago. We are fortunate and grateful that so many of our 

fellow jurists – students, professors, private practitioners, public servants and 

judges – have been willing to lend their illumination to this first revitalized 

edition of the Manitoba Law Journal.

Issue Overview and Introduction 

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

O 

ne of my most pleasant tasks as co-Editor-in-Chief of the Manitoba Law 

Journal is to introduce this volume. The Manitoba Law Journal has 

returned to its original mission: to promote the dissemination of highquality, 

timely legal information relevant to the Manitoba community. Though 

the editors can take no personal credit for it, I believe that our authors have given 

us exactly that. 

Legal history is a notable topic in this particular issue. The Right Honourable 

Chief Justice Beverley McLachlin leads by explaining how Louis Riel could be a 

rebel opposed to British-Canadian expansion and simultaneously a patriot to this 

new country. Later, Greg Smith discusses three books that take a historical 

perspective on criminal trials and the role of the legal profession in England. 

Undoubtedly, our legal profession continues to learn from our English and 

Canadian predecessors, along with the issues that they were forced to confront. As 

the old adage says, those who do not know their history are doomed to repeat it. 

Meanwhile, John Irvine takes a historical perspective on whether the modern use 

of partition and sale in real property in Manitoba is consistent with the historical 

statutory, case-law and practice norms that have governed it and also looks 

specifically at the Court of Appeal’s decision in Chupryk v Haykowski. 

While relevance to Manitoba is a key ingredient to the Manitoba Law Journal, 

this does not limit contributions only to Manitoba law. One can see this in the 

contributions of both Soren Frederiksen and Keith Lenton. Both pieces focus on 

criminal law and procedure and are relevant to Manitoba, but equally relevant to 

the rest of the country. Similarly, the contributions of Gerald Heckman, as well as 

that authored by Debra Parkes and David Milward are highly relevant across 

Canadian jurisdictions. Conversely, the article written by myself and Ned Brown 

takes jurisprudence from across the Prairies on an issue that has yet to confront 

the Manitoba courts. We suggest that seemingly disparate strands of jurisprudence 

can be rationalized and made more cohesive for use in this province. 

Melanie Bueckert’s article on funding for legal research assistance for 

provincial appellate courts shines an important light on the institutional support 

for the needs of our superior court judges in delivering justice in the service of the 

public, not only in Manitoba, but throughout Canada. Brenlee Carrington- 

Trepel’s piece describing her role as Equity Ombudsperson with the Law Society 

of Manitoba is of immediate use to those who need assistance from her

vi MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1 

department and hopefully may spark a national conversation about what 

consumers require from these offices, regardless of jurisdiction. 

The contribution by the Honourable Michel Bastarache, Mark Power, Jean- 

Pierre Hachey and Mathieu Stanton critiques and calls for reform of the current 

implementation of Canadians’ right to service in the official language of their 

choice at the federal level. While it focuses on the federal sphere, it is immediately 

relevant to Manitoba as one of Canada’s few legislatively and judicially bilingual 

provinces. The editors-in-chief wish to specifically recognize the assistance of 

Professor Gerald Heckman with respect to the editorial review of this article. 

Finally, there is an interview with Donna Miller, QC, former Associate 

Deputy Minister of Justice for Canada. She looks back at a career as lawyer, 

administrator, professor, and mentor. Her career, from her perspective, in her 

own words, might do her justice where no dry descriptors could. We hope that 

such interviews with persons connected to both the law and our province will 

become a regular feature of the Manitoba Law Journal. 

We are proud of the diversity found in this issue. Both official languages are 

represented, and all levels of the legal profession have contributed: judges, 

practising lawyers, full-time academics, sessional lecturers, law students and even a 

non-lawyer focused on legal history. Nor are authors restricted to those found 

within our provincial borders. Each group brings a valuable perspective to these 

issues, and we appreciate the fact that busy professionals are willing to give so 

much to bring together the bench, the bar, and the academy in this collective 

endeavour. 

Of course, there are many people to thank beyond the authors. We must 

begin by thanking the Dean and the members of the Faculty Council of the 

Faculty of Law of the University of Manitoba. Without them, the impetus to revamp 

the Manitoba Law Journal would never have come to fruition. Generous 

financial support was received from the Legal Research Institute of the University 

of Manitoba, and the Endowment Fund Advisory Committee of the Faculty of 

Law. We also must recognize our peer reviewers from across Canada who 

generously gave of their time and expertise to assess the contributions. We simply 

would not be able to ensure the high quality of the Manitoba Law Journal without 

their commitment. We thank our student editors, Simon Jack and Andrew 

Boumford. They helped us push the issue from a series of contributions to a 

cohesively edited whole. Professor DeLloyd Guth provided helpful editorial 

assistance with the crucial final stages. The online version of the Manitoba Law 

Journal could not have been developed without the efforts of Adrian Carlyle- 

Gordge, Dan Grice and Professor John Eaton. Amongst the administrative staff at 

the Faculty, Maria Tepper, Larissa Weber, and Jennifer Chlopecki were all 

invaluable to the production of the new-look Journal. Without the hard work of all 

these organizations and individuals, Volume 35, Issue 1, would not exist.

K E Y N O T E 

Louis Riel: Patriot Rebel 

R E M A R K S O F T H E R I G H T H O N O U R A B L E 

B E V E R L E Y M C L A C H L I N , P . C . 

C H I E F J U S T I C E O F C A N A D A 

D E L L O Y D J . G U T H V I S I T I N G L E C T U R E 

I N L E G A L H I S T O R Y : O C T O B E R 2 8 , 2 0 1 0 

I 

t is a great honour to be invited to the inaugural DeLloyd J. Guth Visiting 

Lecture in Legal History for Robson Hall. In light of the lecture’s focus on 

legal history, and in this place where he was born, I would like to speak about 

Louis Riel, his actions, his trial and his legacy. 

Why Riel Simply, because 125 years after his execution, he still commands 

our attention. More precisely, to understand Canada, and how we feel about 

Canada, we must come to grips with Louis Riel the person, Louis Riel the victim 

of the justice system, and the Louis Riel who still inhabits our disparate dreams 

and phobia. 

I. 

LOUIS RIEL: HIS ACTIONS 

Time does not permit more than a brief sketch of this historic personage. But 

that sketch suffices to reveal a complex and fascinating human being. Louis Riel 

was born in the Red River Settlement in what is now Manitoba in 1844. Only a 

fraction of his ancestry was Aboriginal, but that made him a Métis, a mixed 

identity that became the axis upon which his life and his death turned. 1 

1 

For a detailed account of Louis Riel’s ancestry and childhood, see Maggie Siggins, Riel: A Life of 

Revolution (Toronto: Harper Collins, 1994) at 1-66 and George FG Stanley, Louis Riel (Toronto: 

Ryerson Press, 1963) at 1-34.

2 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1 

For over a century the Métis people – born of French Canadian (or 

sometimes Scottish) explorers and adventurers, and Aboriginal women – had 

made themselves an established fact on the prairies. They were a people defined 

by their ethnicity, their language and their religion (Roman Catholicism). 2 For a 

century, they had shared the west peaceably with the various tribes. And then, in 

the middle years of the nineteenth century, their situation was suddenly 

threatened. English-speaking white settlers began to arrive. They were white. They 

were Protestant. And they wanted to settle in the Hudson’s Bay Company’s 

Christian territories. 

The Métis became concerned that the largely English Protestant advance 

would rob them of their rights to land, to the Catholic religion and to the French 

language. 3 As more newcomers arrived from Ontario, conflicts arose. Fear and 

discontent grew. Demands to protect Métis rights against the settlers were made. 4 

When the Company and then the newly confederated government (1867) failed 

to respond, the Métis embarked on organized efforts to obtain legal recognition of 

their status and rights. In a nutshell, that is the story behind the Métis uprisings 

of 1869, led by Louis Riel. 

At this point, we must backtrack for a moment. When Riel was but a boy, the 

priests in Red River had sent him to study at a seminary in Montreal in 1858. 5 A 

decade later, Riel returned from Montreal convinced that the Métis at Red River 

should enjoy language and religious rights similar to those enjoyed in Quebec. He 

believed that the rights he sought for his people could be attained peacefully. 6 

The response of the Canadian government was initially disappointing for the 

Métis. Parliament passed a law in 1869, annexing in colonial style the whole of 

Rupert’s Land and the Northwest Territory, under the absolute rule of a 

Lieutenant Governor. The legislation took no note of the indigenous population, 

effectively – or so Riel saw it – denying Métis and Aboriginal people citizenship 

and a say in the governance of the lands that they regarded as theirs. 7 

Louis Riel believed that if the Canadian government could install this form 

of administration without first granting proper safe-guards of citizenship, assuring 

them of secure possession of their homes and guaranteeing their rights and 

customs, the Métis would lose all possibility of ever securing their rights. He 

2 

3 

4 

5 

6 

7 

Siggins, supra note 1 at 83-97; Stanley, supra note 1 at 44-53. 

Siggins, supra note 1 at 83-97; Stanley, supra note 1 at 44-53. 

Joseph Kinsey Howard, Strange Empire: Louis Riel and the Métis People (Toronto: J Lewis & Samuel, 

1952) at 129-131. 

Stanley, supra note 1 at 21. 

Ibid at 30-32; William McCartney Davidson, Louis Riel 1844-1885 (Calgary: Albertan Publishing 

Company, 1955) at 24-25. 

An Act for the temporary Government of Rupert’s Land and the North-Western Territory when united with 

Canada, SC 1869, c III.

Louis Riel: Patriot Rebel 3 

decided that the time for resistance had come – not the disorderly resistance of a 

mob, but the democratic resistance of an elected council. 

Under Riel’s leadership, a council was formed and declared itself the effective 

“provisional” government of the Red River Settlement. 8 Ottawa seemed content 

to allow this Council to continue, even after it sent out a governor, and 

negotiations ensued. Eventually, the Canadian government assured the Métis that 

the Canadian Parliament would guarantee the use of both English and French in 

the courts and parliament of the new territory, and that the Judge of the Supreme 

Court would speak both languages. Manitoba became the sixth province to enter 

Confederation. 9 

All these achievements, however, were marred by one fatal event, the 

execution of a Northern Irish Orangeman from Ontario, Thomas Scott. Scott 

viewed the Métis as inferior and lost no occasion to make his views known. In the 

course of a few short months, Scott was involved with a series of plots to 

destabilize the community, ranging from kidnapping Riel to attacks on Fort 

Garry. 10 The escapade that finally landed him in the custody of Riel’s provisional 

government was an attack on the jail, in an attempt to free certain prisoners. The 

attack failed and Scott was detained. Riel’s Council, after a fruitless attempt to 

interview Scott – who continued to rain racist epithets down on them – decided 

that he should be tried before a Court Martial of seven members. The panel of 

judges found Scott guilty and a majority voted for execution. Under pressure to 

show that he could act forcefully in the face of the likes of Scott, and without the 

counsel of his long-time advisor, Archbishop Taché, Riel rejected suggestions that 

the execution be stayed. The decision was to prove a fatal turning point in the life 

of Riel and the future of the Red River colony. The next day, March 4, 1870, 

Scott was executed by a firing squad. 11 

That execution became a cause célèbre. It provoked outrage in Ontario and 

raised a clamour for removal of the provisional government and of Riel. Prime 

Minister Macdonald, in response, dispatched the Canadian army. 12 Various Métis 

advocated advances to thwart the army; Riel urged restraint. Ultimately, with the 

arrival of the army imminent, Riel and three of his councillors evacuated Fort 

Garry. 13 Riel’s nine-month period of government in Red River was at an end and 

he went into exile. 

8 

9 

10 

11 

12 

13 

For accounts of the formation of Riel’s provisional government, see Stanley, supra note 1 at 54- 

77; Howard, supra note 4 at 109-162; Siggins, supra note 1 at 98-138. 

An act to amend and continue the Act 32 nd and 33 rd Victoria, Chapter 3, and to establish and provide for 

the Government of the Province of Manitoba, SC 1870, c III. 

Siggins, supra note 1 at 149-157. 

Ibid at 149-163. 

JM Bumsted, Louis Riel v Canada: The Making of a Rebel (Winnipeg: Great Plains Publications, 

2001) at 128-130, 145; Siggins, supra note 1 at 164, 183-184. 

Stanley, supra note 1 at 155-156.


Yet his achievements endured. He had won provincial status for Manitoba 

against persistent opposition and had secured linguistic and religious recognition 

for his people. In the end, the Canadian government had granted his major 

claims. 14 All this, apart from the Scott affair, had been achieved without 

bloodshed. 

Riel, however, emerged from these events an outlaw. The events of the 

uprising unhinged his always volatile mental state. After peregrinations in the 

United States, he entered Longpoint Mental Asylum in Montreal, where he 

remained for seven years. Released, he eventually made his way to Montana, 

married and took a post as teacher at a Jesuit school. 15 

It was there that Gabriel Dumont, leader of the Métis of northeastern 

Saskatchewan, found Riel in 1884. 16 And so began the third and final period of 

Riel’s adult life. The Métis of the Northwest had for over a decade been 

petitioning the federal government for recognition of their status as rights-bearing 

citizens and of their claims to land. Unlike the Aboriginals, they had made no 

treaties with the government and had never abandoned or given away their lands. 

They wanted a negotiated settlement before settlers overran them and erased any 

hope of justice. The government, however, was unresponsive. 17 

In desperation, Dumont decided to ask Louis Riel to aid them. Riel might be 

disgraced, but the fact remained that he had achieved recognition of Manitoba as 

a province and secured guarantees of language and religious rights through his 

movement of resistance two decades earlier. He had forced the government to 

listen and the government had responded. Perhaps he could do it again, this time 

for the Métis people of the Northwest Plains. 18 

Riel by day was a hard-working schoolteacher. But the work provided no 

outlet for his twin passions – his increasingly aberrant religious views and the 

cause of the Métis. 19 Dumont’s request for assistance promised a way to fulfill 

Riel’s mission on both fronts. Little wonder, then, that he accepted Dumont’s 

offer. The Messiah had once more found a mission. 

At St. Laurent, near the present Prince Albert, Riel began a campaign of 

peaceful agitation for redress of the grievances of the local population. He worked 

on a Bill of Rights, which was, by any measure, a moderate proposal. 20 The 

14 

15 

16 

17 

18 

19 

20 

Dollard Dansereau, Causes célèbres du Quebec (Saint-Lambert, QC: Editions Sedes, 1990) at 28. 

For an account of Riel’s life during this period, see Stanley, supra note 1 at 157-251. Thomas 

Flanagan provides an account of the development of Riel’s religious views in Louis ‘David’ Riel: 

Prophet of the New World, rev ed (Toronto: University of Toronto Press, 1996), esp at 37-132. 

Stanley, supra note 1 at 272-273. 

Ibid at 260-264. 

Ibid at 272. 

For a thorough account of the development of Riel’s religious views, see Flanagan, supra note 15 

at 81-104. 

Siggins, supra note 1 at 368-369, 452.


government ignored the Bill on the ground that it had been prepared by a person 

who was not a British subject, Riel having become a citizen of the United States. 21 

If the Métis got rid of Riel, rumour suggested, perhaps a commission could be 

established to look at their grievances. The Métis were not impressed. 

The community, led by Riel, set about devising a plan that mirrored Riel’s 

successful effort to secure the language and religious rights of the Métis in 

Manitoba a decade and a half earlier. Riel believed that the success of the Métis in 

Manitoba and the absence of bloodshed in the Manitoba resistance had been due 

to their efficient preparation for trouble by a show of men under arms, visibly well 

disciplined. 

And so the drift toward confrontation began. The government, upon 

learning that the Métis were arming and organizing themselves, responded not 

with a commission but with increased military and police presence. Riel insisted 

that the Métis only fire if fired upon. 22 Privately, accounts indicate, his behaviour 

was increasingly messianic and irrational. 

On March 26, 1885, a group of Métis led by Dumont surrounded a group of 

fifty-five police officers and forty-three Prince Albert volunteers. When an 

Aboriginal on the Métis side made a move to take away the revolver of a police 

scout, the scout shot him dead. 23 Riel’s force responded, with Riel directing them 

from his horse as he rode, cross held high. The police had drawn first blood and 

the war was on. 

That history continues to our own day. The RCMP reinforcements arrived 

and a few weeks later the Canadian army joined them. The outcome was never in 

doubt. Riel, probably thinking a trial would serve as a platform for his cause, 

refused to flee back to the United States, and on May 15 th gave himself up. He 

was taken to Regina where he was convicted by a six-man territorial jury on the 

charge of high treason, with a recommendation for leniency. Appeals to the 

Manitoba Court of Queen’s Bench and the Judicial Committee of the Privy 

Council failed. The government refused a petition for clemency. On November 

16th, 1885 Louis Riel serenely mounted the scaffold and died. 24 

His execution led to riots in Quebec, which saw it as an attack on French 

language and Catholic religious rights. In Ontario, by contrast, Riel’s execution 

was cheered. The great national divide that would become a recurrent part of 

Canada’s history was engaged. 

That is a thumbnail sketch of the events of Riel’s life. It does not begin to 

capture the man and what he has come to stand for. Riel the man – how to sum 

his parts He was loved by some, demonized by others. He was devoutly religious, 

21 

22 

23 

24 

Bumsted, supra note 12 at 256. 

Ibid at 256-259; Siggins, supra note 1 at 366-380. 

Siggins, supra note 1 at 382-384. 

Olive Patricia Dickason, Canada's First Nations: A History of Founding Peoples from Earliest Times 

(Toronto: McClelland & Stewart, 1994) at 306-18.


yet clashed with his church and rejected some of its central teachings. He was a 

man of peace, yet led two rebellions. He was, above all, a man of dreams and 

ideals, which he pursued with messianic zeal. His varied life reveals many 

passions. Two, however, were constant: his passion for God and his passion for 

justice for the Métis. Was Riel, in addition to all his other attributes, mad That 

question dominated his trial, to which I now turn. 

II. 

LOUIS RIEL: THE TRIAL 

It is Riel's trial, more than his accomplishments for the people of Red River 

or his defeat at Batoche, that has defined his public image ever since. Discussion 

continues in academic circles about what Riel accomplished for the Métis people. 

One question has seized the imagination of people everywhere: did the trial of 

Louis Riel, a man consumed by a passion for justice, deliver justice, for him and 

for Canada 

To understand the trial of Riel, one needs to understand the politics of the 

country at the time of the Northwest Rebellion. Canada was only a few years old. 

Prime Minister Macdonald was committed to a trans-Canadian railway, western 

annexation and settlement, in pursuit of his dream of a Canada that stretched 

from sea to sea. The Métis were seen as a problem and the rebellion had become 

highly inconvenient, to say the least. The Prime Minister's problem was 

complicated by politics in the east. French-speaking Catholics sympathized with 

Métis claims to linguistic and religious guarantees. By contrast, English-speaking 

Ontarians viewed Riel as the murderer of Scott and the Métis uprising as an 

affront to the rule of law and an impediment to orderly settlement of the west. 

The Prime Minister attempted to satisfy both constituencies as well as his desire 

(admitted on more than one occasion) to be rid of Riel. The result was a process 

that was arguably lawful but unquestionably harsh and unwise. 

Before addressing the questions that have been raised about Louis Riel's trial, 

a brief outline of the proceedings is in order. 

Riel was charged with high treason. He was ordered to stand trial before a 

Territorial Court in Regina. 25 At the outset of the trial, the defence raised 

procedural objections regarding the fairness of the venue: frontier territorial 

procedures (the jury was made up of six Anglophones) and local laws were 

particularly harsh and outdated when compared with the English criminal law 

transplanted to Canada; trying Riel for treason also raised basic jurisdictional 

issues because he had become an American, and was no longer a British subject. 

25 

George Goulet, The Trial of Louis Riel: Justice and Mercy Denied (Toronto: Tellwell Publishers, 

1999) at 43-55. The most recent and authoritative scholarship on point is in Barry Wright & 

Susan Binnie, eds, Canadian State Trials, Volume III: Political Trials and Security Measures, 1840- 

1914 (Toronto: The Osgoode Society for Canadian Legal History, 2009).


All such objections were summarily rejected. 26 Having lost their procedural 

arguments, the defence lawyers decided that their best option was to plead 

insanity. 

Riel did not agree with that defence. He viewed himself as a sane man, 

fighting for a venerable cause. He wrote to Prime Minister Macdonald 

complaining that his lawyers were well-intentioned but unable to understand his 

cause. His letter fell on deaf ears. Defence counsel proceeded undeterred. 

At the trial’s conclusion, the judge gave a brief direction that offered virtually 

no comment on the evidence or the law. The jury retired for an hour, returning a 

verdict of guilty with a recommendation for mercy. After a further speech from 

Riel, Judge Richardson sentenced him to death. 27 Appeals were rejected and, after 

sending out a fact-finding mission, the government rejected a petition for 

clemency. Riel was hanged on November 16 th , 1885. That, in brief compass, was 

Riel's trial. 

I return to a question I posed earlier: did Louis Riel get justice in the end 

The answer turns on what we mean by “justice”. The government's treatment of 

Riel probably accorded with the law in that time and place. Canada did, however, 

have choices, and its harsh decisions proved devastating – and ultimately fatal – 

for Mr. Riel. 

I turn to areas of the proceeding that remain particularly troubling. 

A. 

The Venue 

Riel was initially ordered to stand trial before the duly constituted courts of 

Manitoba. The government quickly changed its mind, however, ordering that Riel 

be tried in Regina in the Northwest Territories. The Territories did not possess a 

developed justice system and did things differently than the rest of Canada. In 

Manitoba, Riel would be tried by a jury of twelve men, much more his peers: six 

Francophone and six Anglophone. In the Territories, Riel would be tried by a jury 

of only six men, an all-white English Protestant panel unlikely to understand the 

language of many of Riel's witnesses. In addition, territorial criminal procedure 

was significantly less developed: many protections enjoyed by defendants in 

Manitoba had not been extended to the Territories, to Riel’s detriment. 28 

B. 

The Judge 

The judge, Hugh Richardson, was a stipendiary magistrate appointed at the 

pleasure of the government, without tenure, one of the most significant 

protections of judicial independence. He did not speak French and had no 

experience at conducting controversial trials. Indeed, as became apparent in some 

26 

27 

28 

Goulet, ibid at 71-81. 

Michael Bliss, ed, The Queen v Louis Riel (Toronto: University of Toronto Press, 1974) at 343-372. 

Goulet, supra note 25 at 45-48.


of the other trials he presided over, involving other persons associated with the 

uprising, he could not be called a highly skilled lawyer or jurist. 29 

C. 

The Charge 

The Canadian government had the choice of three statutes under which it 

could lay charges against Riel: the 1838 Fenian Act, 30 the 1868 Canadian High 

Treason Felony Statute, 31 and the medieval 1351 Statute of Treasons. 32 The last 

made “high treason” the most serious offence in English law, with death being the 

only possible outcome upon conviction. The decision to charge Riel under this 

1351 legislation was made by the Justice Minister, Sir Alexander Campbell, and 

by the Prime Minister, Sir John A. Macdonald. Of the seventy-two participants 

charged in the rebellion, only Riel was charged with high treason, 33 the only 

charge that carried an automatic death penalty. 

Two intertwined reasons have been suggested for the government’s decision. 

First, the record suggests that Macdonald wanted Riel executed. 34 Second, the 

government was politically motivated to paint the rebellion as the act of one evil 

man, rather than what it was: a Métis movement for recognition of their rights to 

land, language and religion. 35 

The decision to charge Riel with high treason was risky. The essence of high 

treason was the act of a citizen against the sovereign. But Riel had become an 

American citizen on March 16, 1883. The appropriate charge for Riel, a noncitizen, 

would have been under the Fenian Act, which made it treason for a 

citizen of another country to levy war against Canada. 36 Either the government 

was unaware of Riel’s American citizenship, or they knew and were willing to take 

the chance – correctly as it turned out – that this “technicality” would not result 

in Riel’s acquittal. 37 

29 

30 

31 

32 

33 

34 

35 

36 

37 

Ibid at 56-62. 

In 1838, Upper Canada passed An Act to protect the Inhabitants of this Province against Lawless 

Aggressions from subjects of Foreign Countries, at peace with Her Majesty, 1838, 1 Vict., c 3. This was 

subsequently amended by 1840, 3 Vict, c 12. The statute was so heavily relied on to prosecute 

the Fenians that it became known as the “Fenian Act”. Under the Fenian Act, it was treason for 

a citizen of another country, an alien, to levy war against Canada. 

SC 1868, 31 Vict, c 69, formally titled An Act for the better security of the Crown and of the 

Government. Under s 5, it was treason-felony to levy war against the Crown or the government. 

(UK), 25 ed III, Stat 5, c 2. 

Goulet, supra note 25 at 48. 

Jean Teillet, “Exoneration for Louis Riel: Mercy, Justice, or Political Expediency” (2004) 67 Sask 

L Rev 359. 

Bumsted, supra note 12 at 271. 

Teillet, supra note 34. 

Riel was charged with breaches of allegiance (as a British subject) and local allegiances (as a 

person living with Canada under the protection of the sovereign). In fact, due to the 

Naturalization Act, 1870 of the United Kingdom the doctrine of national allegiance was wiped


Particularly troubling was the fact that the legal basis of the prosecution was 

not specified at the outset of the proceedings. The six charges were couched in 

fusty language. Riel was accused of “being moved and seduced by the devil” and 

“most wickedly, maliciously and traitorously” having levied and made war “against 

our Lady the Queen.” But the statute under which he was charged – and hence 

the fact that he was facing death – became clear only partway through the 

proceeding. 38 Such a state of affairs remains incomprehensible to a modern 

practitioner of criminal law. 

D. 

The Defence Team 

Riel’s lawyers were respected members of the bar and appear to have worked 

conscientiously on his behalf. Nonetheless, there was a fundamental disconnect 

between Riel and his legal team as to how the trial should be conducted. As I 

mentioned earlier, Riel wanted a defence based on the merits of the Métis cause. 

His defence team viewed this as a legal non-starter (the wrongness of government 

policy was no defence to a charge of treason) and instead argued that Riel was an 

intermittently insane man whose aberrant behaviour was the product of 

delusions. 39 While perhaps legally unpromising, a defence on the merits was Riel’s 

unwavering wish, which he was persistently, and ultimately, denied. 

E. 

The Defence of Insanity 

Insanity was the only real defence Riel’s legal team advanced. From the point 

of view of overall justice, did the Regina trial condemn to death a man who was 

mentally ill and thus not legally responsible for his actions 

Viewed through a modern lens, Riel’s conduct and mental state at the time 

of the rebellion suggested a man swept away by a religious-political vision. He 

viewed the uprising as an event directed by God and himself as God's chosen 

instrument. He appeared to have believed that God would intervene and grant 

victory. He saw visions and broke with Catholic doctrine and the church. He 

often acted in a clearly irrational, arguably paranoid fashion. Then there was his 

personal history: seven years in a mental institution after the Red River uprising. 40 

It is difficult, at this historic remove, to conclusively say whether Riel was 

sane or insane at the time he directed the events of the Northwest uprising. 

However, several points should be made. First, it may well be that the jury did not 

understand that being able to express oneself logically later in the courtroom was 

consistent with the possibility that Riel had previously acted under delusions. 

38 

39 

40 

out. The first 3 of the 6 charges of high treason against Riel were thus invalid: see Goulet, supra 

note 25 at 50-51. 


Ibid at 117-124. 

Flanagan, supra note 15, generally.


Second, there was strong evidence that Riel was highly delusional at critical points 

in the uprising but thereafter appeared clear-minded. Today, a person with a 

history of serious mental illness who commits an apparent crime while operating 

under visions and delusions that appear irrational to reasonable people will 

almost undoubtedly escape conviction. He will be sent to a hospital under Part 

XX.1 of the Criminal Code. He most certainly will not be convicted of treason. 

Justice according to the letter of the law and understanding of mental illness in 

1885, perhaps. Justice according to our modern understanding Probably not. 

F. 

Post-Verdict Proceedings 

In the absence of clear trial error on the record, the Manitoba Court of 

Queen’s Bench dismissed Riel's appeal. The Judicial Committee of the Privy 

Council summarily confirmed this decision. It is difficult to fault these decisions 

on the record as it stood. 

What is controversial is whether or not the Government of Canada erred in 

rejecting Riel's plea for clemency. The jury had recommended clemency. The 

doubts about Riel's mental state cried out for clemency. Yet Riel's petition for 

clemency was rejected. 41 

While considering Riel’s petition, Prime Minister Macdonald was pressured 

to appoint a medical commission to investigate Riel’s sanity. The Prime Minister 

agreed to have doctors talk to those who knew Riel, but ordered them to “stop so 

soon as you are convinced that Riel knows right from wrong and is an 

accountable being”. 42 Given the Prime Minister’s avowed desire for Riel’s 

execution, it is perhaps unsurprising that he ignored medical opinion that 

concluded that Riel showed signs of insanity. 43 What was surprising was the 

report that the Prime Minister gave to the House of Commons. The doctor’s 

report was edited to omit any reference to signs of insanity. 44 With the deceptively 

edited information before it, the Commons rejected clemency and Riel’s 

execution proceeded. 

G. 

Summary 

Judged from the perspective of 2010, Riel's trial, while minimally legal, 

suffered from many imperfections. The choice of venue – the Territories – 

deprived Riel of legal and procedural protections and a trial by peers who 

understood the language of crucial witnesses. The judge was not a skilled jurist 

and lacked institutional independence. The charge was unclear and the harshest 

41 

42 

43 

44 

Bumsted, supra note 12 at 302-304. 

Thomas Flanagan, Riel and the Rebellion: 1885 Reconsidered, 2nd ed (Toronto, University of 

Toronto Press, 2000) at 159. 

Ibid at 160. 

P Waite, Canada 1874-1896: Arduous Destiny (Toronto: McClelland and Stewart, 1971) at 165.


available. The defence team ignored his wishes. It is not clear that the jury 

appreciated that a man who could make a cogent argument might nevertheless be 

delusionally insane. And the government's insistence on death in the face of a jury 

recommendation for clemency and starkly contrasting medical evidence, while 

perhaps explicable by the need to preserve peace in the Northwest, seems, in 

retrospect, perverse. 

Had Riel been quietly consigned to pass the rest of his days in a mental 

institution, he would probably not have become a martyr whose cause still tears at 

us in the twenty-first century. Perhaps that is how Riel, whose goal throughout 

was nothing more than a trial that would highlight the plight of the Métis people, 

would have wanted it. 

III. 

LOUIS RIEL: THE LEGACY 

Riel fought against Canada in the name of values that Canada now proudly 

embraces: respect and accommodation for pluralism. Does this make Riel a rebel 

A patriot Can he be both Overarching this inquiry is the question of Riel’s 

significance to modern Canada. Like many Canadians, Louis Riel was a 

composite. He was Métis, Quebecois, Aboriginal, Catholic, eastern and western. 

He was all these identities while being Canadian at a time when the nation was 

still trying to figure out what being Canadian meant. 

Each part of Riel speaks to different constituencies that we modern 

Canadians can also share, in terms of language, religion or culture. But sharing an 

aspect of Riel’s heritage is only the beginning of understanding his significance to 

us. While he speaks to individual and community identities, his example more 

broadly embodies the pluralistic nature of Canada. The challenge Riel faced is 

how to master the complex tasks of integrating and controlling the conflicting 

demands of his, and Canada’s, many identities. This is ultimately the challenge of 

our modern, multi-cultural nation and its rule of law. 

What lessons do Louis Riel’s life and fate teach us Let me suggest two central 

lessons. The first is the importance of the rule of law and a fair, effective and 

independent justice system. The second is that we must respond with respect to 

concerns of Aboriginal peoples – and by extension other minorities – in the spirit 

of reconciliation. Had Canada observed these precepts in 1885, the Riel uprising 

and execution would not have occurred. 

The first problem with that government’s treatment of Riel was the glaring 

deficiency of rule of law in the territories of the new Canada. There were two 

aspects in this failure. First, there was no legitimate way for Riel to bring 

grievances to the attention of the government. The government itself did not lend 

an ear, and the courts – the last resort for all aggrieved citizens – could not 

remedy violation of rights by any set standard law because the Charter – now 

Canada’s ultimate expression of its commitment to freedom and human dignity –


did not exist. Riel had no legitimate avenue to express concern except by petition 

and, in the end, protest. Second, the state of the criminal law and the rules of 

criminal procedure were woefully inadequate, anachronistic and confused in the 

territories outside Canada. Canada took advantage of this by ordering Riel to be 

tried in territorial Regina instead of Manitoba, under legislation from the 

fourteenth century that mandated the death penalty and that did not prevail 

elsewhere in Canada. Territorial law, as it turned out, did not require an 

independent judiciary, appropriate pre-trial hearings, or a timely declaration of 

charges. 

Rule of law – the general proposition that decisions should be made by 

applying known principles and laws – shields the citizen against arbitrary and 

capricious governance. Riel did not enjoy the full protection of this shield. 

Because of this, we are left with the sense that justice was not done. Any 

fundamental failure of justice creates an open wound that remains on the body of 

a nation until addressed. Despite all the tributes to Riel over the past half-century, 

despite the statues erected and tomes penned to his memory, we are still left with 

the sense that the wound inflicted on the body politic by Riel’s execution has not 

yet fully healed. 45 

The second lesson is the need to respond to concerns of minorities in a spirit 

of respect and reconciliation. Broadly, Riel demonstrated that we must provide 

refuge for our minorities, embodied in the principle that all people, regardless of 

the group to which they are born or assigned, are equally worthy and equally 

deserving of respect. At the same time, we must resist the temptation to equate 

equality with assimilation. Assimilation undermines the identities of members of 

a group, identities based on unique histories, languages, and cultures which 

deserve recognition and preservation. 

The government of Canada in 1885 failed to take seriously the concerns of 

the Saskatchewan Métis minority that their rights needed to be recognized. If they 

had, the violence of the Northwest uprising and Riel’s hanging would never have 

happened. Riel’s initial tactics during both the Manitoba and the Saskatchewan 

uprisings were the same: peaceful agitation for redress of the grievances of the 

local population. In the first uprising in Red River, the newly minted Canadian 

government ultimately listened to Riel’s concerns and responded by granting the 

right to French language, Catholic religion and provincial status. In the second 

uprising in Saskatchewan, a more mature Canada refused to recognize the Métis 

demands, refused even to discuss them. Refusing to do so much as consider the 

claims of peoples who had lived on the prairies for generations, who had their 

own distinct language and culture, simply plowing them under with a plan to 

resettle the west with immigrants, allowing nothing to stand in the way. 

45 

Teillet, supra note 34.


Riel’s story teaches us that we must take seriously rights and grievances. We 

must not sweep dissent under the carpet; we must not ride roughshod over 

difference. We must address the concerns of Aboriginals and other minorities 

from the stance of respect and reconciliation. As Supreme Court of Canada Chief 

Justice Antonio Lamer stated in the seminal decision of Delgamuukw, “Let’s face 

it, we are all here to stay.” 46 

I return to the title of this talk: Louis Riel: Patriot Rebel. By any measure, Riel 

was a rebel. 

His Canada was born in an era of ethno-nationalism, religious and linguistic 

intolerance and state-sanctioned racism. Riel rejected this stance and fought the 

established order, which is the essence of rebellion. But just as clearly – viewed 

through our modern lens – he was a patriot. The values Riel fought for – 

inclusion, equality, respect and accommodation – are values which we recognize 

in today’s Canada, in our Charter, and which make us deeply proud to be 

Canadian. 

Perhaps the debate concerning Riel’s patriotism is best resolved by Riel 

himself. Just before the jury retired to consider its verdict, Riel asked to speak. He 

looked each juror in the eye and said: 

I am glad the Crown have proved that I am the leader of the half-breeds in the Northwest. I 

will perhaps be one day acknowledged as more than a leader of half-breeds, and if I am, I 

will have an opportunity of being acknowledged as a leader of good in this great country. 47 

Today, there is no doubt that Riel stands as a leader, not only of Métis, 

important as that is, but of all Canadians. He teaches us that the multiple 

identities and rights that make up our complex heritage must be respected, not 

crushed. And he teaches us that we must seek justice for all – the despised as 

much as others – not only in form but in substance. 

46 

47 

Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 186. 

Final Statement of Louis Riel at his Trial in Regina, Friday, July 31, 1885, online: 

.

Au-delà des nombres : le droit du public canadien 

à des services fédéraux dans la langue officielle de 

son choix 

L ’ H O N O R A B L E M I C H E L 

B A S T A R A C H E , C . C . * , M A R K C . 

P O W E R * * , J E A N - P I E R R E H A C H E Y * * * 

E T M A T H I E U S T A N T O N * * * * 

I. 

INTRODUCTION 

L 

e Canada a célébré récemment le quarantième anniversaire de la Loi sur les 

langues officielles 1 . Durant ces quarante années, des progrès considérables ont 

été réalisés dans les communications avec le public, la prestation des 

services fédéraux et l’appui aux communautés de langue officielle en situation 

minoritaire. Néanmoins, si c’est le temps de dresser un bilan des réalisations, il est 

aussi nécessaire de constater que les communautés de langue officielle en 

situation minoritaire demeurent menacées par des pressions assimilatrices 

écrasantes et très inquiétantes. 

La puissance de ces forces assimilatrices et leur impact sur la société 

canadienne est bien illustrée par les observations suivantes du Commissariat aux 

langues officielles du Canada, formulées en 2001 : 

En Colombie-Britannique, en Alberta et en Saskatchewan, dans sept familles d’origine 

française sur dix, on ne transmet pas sa langue maternelle aux enfants. Dans l’ensemble du 

Canada, le taux d’assimilation chez les francophones en situation minoritaire est passé de 

35 à 37 pour cent de 1991 à 1996. Le phénomène s’accélère malgré tous les efforts 

consentis pour le ralentir 2 . 

* 

** 

*** 

**** 

1 

2 

Avocat-conseil au bureau d’Ottawa de Heenan Blaikie s.r.l. Anciennement juge à la Cour 

suprême du Canada et à la Cour d’appel du Nouveau-Brunswick. 

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 et avocat au bureau d’Ottawa de Heenan Blaikie s.r.l. 

Avocat au bureau d’Ottawa de Heenan Blaikie s.r.l. 

Avocat au bureau de Vancouver de Heenan Blaikie s.r.l. 

LRC 1985, c 31 (4 e supp) ; en 1969, le gouvernement fédéral dirigé par le très honorable Pierre 

Elliott Trudeau fit adopter la première Loi sur les langues officielles, LRC 1970, c O-2. 

Commissariat aux langues officielles, Nos langues officielles : Pour finir un siècle et commencer un 

millénaire, 2001 (publication soulignant le 30 e anniversaire du Commissariat aux langues 

officielles).

Au-delà des nombres 15 

Par ailleurs, « le pouvoir d’attraction du français auprès de la population 

allophone est resté quasi inexistant dans le reste du Canada [à l’extérieur du 

Québec] : avec un taux de francisation relative de 0,3 % en 1996 comme en 1971, 

l’attrait du français auprès des allophones y demeure pratiquement nul » 3 . Il faut 

donc se demander si, aujourd’hui, malgré les meilleures intentions du législateur, 

certaines dispositions de la Loi sur les langues officielles relatives aux 

communications avec le public et la prestation des services sont mal conçues pour 

lutter contre l’assimilation linguistique et culturelle et si elles ne doivent pas de ce 

fait être modifiées. 

La partie IV de la Loi sur les langues officielles, la partie de la loi qui porte sur la 

langue des services et communications avec le public, est appelée à devenir la 

caisse de résonance des efforts visant à lutter contre l’assimilation linguistique et 

culturelle. Il ne faut pas perdre de vue le fait que dans certaines communautés 

minoritaires de langue officielle, les bureaux fédéraux désignés bilingues sont 

souvent l’unique lieu où l’on peut utiliser la langue minoritaire, voire le seul 

employeur qui permet l’utilisation de la langue minoritaire dans le milieu de 

travail. Dans ces communautés, les services fédéraux ont une valeur intrinsèque 

en ce qu’ils communiquent à la communauté entière le statut égal des langues 

officielles du Canada. Ailleurs au pays, là où il existe déjà une complétude 

institutionnelle 4 au profit des communautés de langue officielle en situation 

minoritaire, les bureaux fédéraux désignés bilingues jouent, au minimum, un rôle 

symbolique fort important tout en offrant aux diplômés l’occasion de travailler 

dans la langue officielle de leur choix. 

Cet article affronte deux défis principaux. Dans un premier temps, une 

analyse du régime juridique présentement en vigueur – qui détermine l’étendue 

des services devant être offerts dans les deux langues officielles par les institutions 

fédérales, à l’extérieur de la région de la capitale nationale 5 – sera effectuée. Dans 

un deuxième temps, cet article proposera deux principes qui devraient sous-tendre 

toute réforme du régime actuel. D’abord, qu’il serait souhaitable d’offrir des 

services dans les deux langues officielles à toute personne capable de 

communiquer dans ces langues, sans égard à leur sentiment d’appartenance 

3 

4 

5 

Charles Castonguay, « Assimilation linguistique et remplacement des générations francophones 

et anglophones au Québec et au Canada » (2002) 43 :1 Recherches sociographiques 168 au para 

57 (version électronique). 

Voir généralement, Raymond Breton, « Institutional completeness of ethnic communities and 

the personal relations of immigrants » (1964) 70 : 2 American Journal of Sociology 193 ; Lalonde 

c Ontario (Commission de restructuration des soins de santé) (2001), 56 RJO (3 e ) 577 (CA). 

L’article 22 de la Loi sur les langues officielles prévoit que le siège ou l’administration centrale des 

institutions fédérales doivent offrir leurs services dans les deux langues officielles, ainsi que leurs 

bureaux situés dans la région de la capitale nationale. La « région de la capitale nationale » est 

définie à l’article 2 de la Loi sur la capitale nationale LRC, 1985, c N-4 comme étant le « Le siège 

du gouvernement du Canada et ses alentours, plus particulièrement définis dans l’annexe [ce qui 

capte les villes d’Ottawa (On) et de Gatineau (Qc)] ».


culturelle, leurs origines ethniques ou l’utilisation de ces langues au foyer ou au 

travail. Ensuite, que le concept sociologique de la spécificité de la communauté 

devrait figurer en tant que critère juridique obligatoire, aux fins du processus de 

désignation des bureaux fédéraux bilingues à l’extérieur de la région de la capitale 

nationale. 

Il y a lieu de se pencher sur la problématique identifiée par cet article en 

raison des nombreux changements jurisprudentiels et démographiques qui seront 

effleurés dans la première partie. La partie IV de la Loi sur les langues officielles, qui 

gouverne la prestation des services et les communications avec le public dans les 

langues officielles, n’a jamais été modifiée depuis son adoption en 1988. Par 

ailleurs, le règlement pris en application de cette partie en 1992 n’a été modifié 

qu’une seule fois, suite à une déclaration d’inconstitutionnalité prononcée par la 

Cour fédérale au terme d’un litige portant sur la langue des services offerts par la 

Gendarmerie royale du Canada (« GRC ») sur un tronçon de l’autoroute 

transcanadienne 6 en Nouvelle-Écosse. Il appert aujourd’hui que plusieurs aspects 

du régime réglementaire en matière de prestation des services et des 

communications avec le public ne tiennent pas suffisamment compte de la réalité 

démographique canadienne et des principes constitutionnels applicables en cette 

matière 7 . 

À ce sujet il existe actuellement peu de doctrine. Le chapitre de Nicole Vaz et 

de Pierre Foucher, publié en 2004, décrit l’état du droit en cette matière, tant au 

niveau fédéral que provincial et territorial 8 . Quant au chapitre d’Amélie Lavictoire 

et de Christine Ruest, publié en 2008, l’analyse se concentre sur l’utilité de la 

garantie constitutionnelle 9 applicable en matière de communications entre les 

administrés et les institutions fédérales 10 . Cet article aide donc à combler en partie 

une lacune importante dans la doctrine portant sur ce domaine important. 

Par ailleurs, le régime fédéral de communications avec le public et de 

prestation des services est vivement critiqué par plusieurs 11 . Ainsi, à l’heure 

6 

7 

8 

9 

10 

11 

Doucet c Canada, 2004 CF 1444, [2005] 1 RCF 671 ; voir généralement la Loi favorisant et aidant 

la construction d’une route transcanadienne, 13 Geo VI, c 40 [abrogée]. 

DesRochers c Canada (Industrie), [2009] 1 RCS 194 ; Doucet c Canada, ibid ; Société des Acadiens et 

Acadiennes du Nouveau-Brunswick Inc c Canada, [2008] 1 RCS 383. 

Michel Bastarache, dir, Les droits linguistiques au Canada, Cowansville (Qc), Yvon Blais, 2004 aux 

pp 275-397. 

Loi constitutionnelle de 1982, constituant l’annexe B de la Loi de 1982 sur le Canada (R-U), 1982, c 

11, para 20(1). 

Joseph Eliot Magnet, dir, Official Languages of Canada, Markham, LexisNexis, 2008 aux pp 235- 

260. 

Voir par ex Fédération des communautés francophones et acadienne du Canada, La mise en 

œuvre de la Loi sur les langues officielles : une nouvelle approche – une nouvelle vision, Ottawa, 

novembre 2009 ; Commissariat aux langues officielles, Rapport annuel, vol 2, Ottawa, 2009-2011 ; 

PL S-220, Loi modifiant la Loi sur les langues officielles (communications avec le public et prestation des 

services), 40 e lég, 3 e sess, 2010 (mort au Feuilleton).


actuelle, un examen sérieux du régime à la lumière de ces critiques s’impose et 

constitue un effort académique pertinent, en vue de déceler des solutions 

concrètes à un problème qui est d’actualité au Canada comme ailleurs 12 . 

Cet article ne prétend pas analyser de façon exhaustive le régime fédéral de 

communications avec le public et de prestation des services en matière de langues 

officielles. Un tel exercice n’est pas possible en raison des contraintes d’espace et 

serait peu utile étant donné les changements continuels dans ce domaine, tant sur 

le plan jurisprudentiel qu’administratif. L’objectif de ce texte est plutôt de déceler 

certaines des failles structurelles les plus importantes dans le régime actuel et de 

proposer deux principes qui pourraient dorénavant contribuer à orienter le 

processus de désignation de bureaux fédéraux bilingues. 

II. 

LE RÉGIME FÉDÉRAL DE PRESTATION DES SERVICES ET DES 

COMMUNICATIONS AVEC LE PUBLIC 

Avant d’aller plus loin, il est nécessaire de comprendre l’essentiel du 

processus par lequel le gouvernement fédéral désigne certains de ses bureaux 

comme étant bilingues et d’autres (la vaste majorité) comme étant des lieux où les 

services fédéraux seront offerts dans une seule langue officielle. Ensuite, un survol 

de l’évolution jurisprudentielle en cette matière et de certains changements 

sociologiques pertinents permettra de constater que ce régime de communications 

et de prestation des services au public est périmé et nécessite une révision 

approfondie. 

A. Le régime actuel : un calcul mécanique conduit à la 

désignation de bureaux fédéraux bilingues 

La Constitution du Canada prévoit que le public a le droit d’employer l’une 

ou l’autre des langues officielles pour communiquer avec les institutions du 

Parlement et du gouvernement du Canada et pour en recevoir les services 13 . Ce 

droit constitutionnel connaît par contre certaines limites. En effet, dans plusieurs 

circonstances ce droit n’existera que lorsqu’il aura été démontré que l’emploi des 

langues officielles fait l’objet d’une « demande importante » 14 . Le critère 

constitutionnel de la demande importante est repris par la Loi sur les langues 

officielles et est défini par le Règlement sur les langues officielles – communications avec 

12 

13 

14 

Voir par ex Iryna Ulasiuk, « Language Rights in Relations with Public Administration: European 

Perspectives » (2011) 18 International Journal on Minority and Group Rights 93. 

Loi constitutionnelle de 1982, supra note 9, para 20(1). 

L’autre limite à l’exercice du droit étant en fonction de la « vocation du bureau », Loi 

constitutionnelle de 1982, supra note 13, para 20(1).


le public et prestation des services 15 (« Règlement »), qui a été préparé en 1989 16 et a 

été pris en application de la loi en 1992. 

Le Règlement a un impact réel sur le développement des communautés de 

langue officielle. Lorsque l’emploi des langues officielles fait l’objet d’une 

demande importante, il s’ensuit que le public a le droit de communiquer avec les 

institutions fédérales dans la langue officielle de son choix et d’en recevoir les 

services. Afin de déterminer s’il existe une demande importante au sens de la Loi 

sur les langues officielles, le Règlement se fonde sur le concept de la « population de 

la minorité francophone ou anglophone » 17 . Cette dernière est déterminée, 

suivant le Règlement, en utilisant « l’estimation faite par Statistique Canada 

conformément à la méthode I en fonction […] du plus récent recensement 

décennal » 18 . 

La méthode I de Statistique Canada (« méthode I ») est un calcul 

administratif qui permet de déterminer la première langue officielle parlée 

(« PLOP ») des Canadiennes et des Canadiens, en utilisant certaines données 

tirées du plus récent recensement décennal 19 . Concrètement, la PLOP tient 

compte, premièrement, de la connaissance des langues officielles, deuxièmement, 

de la langue maternelle et, troisièmement, de la langue parlée le plus souvent à la 

maison 20 . C’est par le crible du Règlement que les donnés relatives à la PLOP sont 

mises en application. Ainsi, la mise en œuvre de la demande importante variera 

selon les dispositions alambiquées 21 du Règlement, notamment en fonction des 

distinctions qui y sont faites entre les grands centres urbains et les villes de 

moindre envergure, les villages et les zones rurales. 

15 

16 

17 

18 

19 

20 

21 

DORS/92-48. 

Des consultations du Secrétariat du Conseil du Trésor ont eu lieu avec le Commissaire aux 

langues officielles, les représentants des associations minoritaires et d’autres intéressés au sujet 

d’un avant-projet de réglementation à l’automne 1989 voir : Commissariat aux langues 

officielles, Rapport spécial présenté au Parlement en vertu de l’article 67 de la Loi sur les langues officielles 

au sujet du dépôt des avant-projets de réglementation et plus particulièrement de l’avant-projet de règlement 

sur les communications avec le public et la prestation des services, 25 octobre 1990. 

Règlement sur les langues officielles – communications avec le public et prestation des services, supra note 

15, art 3. 

Règlement sur les langues officielles – communications avec le public et prestation des services, supra note 

15, art 2. 

L’honorable juge Boivin a noté dans l’affaire Fédération des communautés francophones et acadienne 

du Canada c Canada (Procureur général), 2010 CF 999 (CanLII) au para 32, que le Règlement 

« exige la tenue d’un recensement comme outil pour déterminer le nombre suffisant pour la mise 

en œuvre de la Partie IV de la Loi sur les langues officielles ». 

Règlement sur les langues officielles – communications avec le public et prestation de services, supra note 

15, art 2. 

Même les fonctionnaires de la Direction des langues officielles, Secrétariat du Conseil du Trésor 

du Canada, peuvent avoir de la difficulté à expliquer clairement l’application du 

Règlement. Voir leur témoignages à cet effet : Chambre des communes, Comité permanent des 

langues officielles, 37 e lég, 2 e sess, Témoignages, 4 décembre 2002.


À titre d’exemple, considérons l’alinéa 6(1)f) du Règlement qui définit 

comme bureau devant assurer des services dans les deux langues officielles un 

détachement de la GRC qui offre des services sur des tronçons de l’autoroute 

transcanadienne où se trouve un lieu d’entrée dans une autre province qui est 

officiellement bilingue, et au moins cinq (5) pour cent de la demande de ces 

services faite par le public à ce bureau, au cours d’une année, est dans cette 

langue. Il n’y a que le Nouveau-Brunswick qui soit bilingue ; plus encore, 

comment accorder quelque importance aux contacts de la population en transit 

sur une route avec un bureau de la GRC Le contact se fera s’il survient une 

contravention ou un accident. Est-ce que la fréquence de ceux-ci est une mesure 

du besoin d’assurer le service Est-ce que le service sur l’autoroute 

transcanadienne ne devrait pas avoir un rapport avec le droit à la mobilité et à la 

sécurité Et comment la désignation comme province bilingue intervient-elle ici 

alors que le gouvernement fédéral ne reconnaît pas le besoin d’assurer des services 

équivalents aux personnes partout sur le territoire du Nouveau-Brunswick 22 Estce 

que le service le long de l’autoroute transcanadienne n’a pas d’abord un 

rapport avec les nécessités relatives à la sécurité et la santé du public Enfin, 

pourquoi donner effet, sur le plan des services fédéraux, au statut du français dans 

la province du Nouveau-Brunswick mais non dans les autres juridictions où la 

langue bénéficie d’un statut, telles l’Ontario 23 , le Manitoba 24 , l’Île-du-Prince- 

Édouard 25 , la Nouvelle-Écosse 26 et les trois territoires 27 

D’ailleurs, la définition même de la population à desservir selon la PLOP est 

problématique à plusieurs égards. Prenons, par exemple, une personne bilingue 

qui déclare avoir les deux langues officielles comme langues maternelles, qui a été 

éduquée en français, qui utilise les deux langues régulièrement au travail, mais qui 

parle plus souvent l’anglais à la maison afin de communiquer avec son conjoint. 

Cette personne sera définie comme étant « anglophone » en vertu du régime 

actuel. Il est important de souligner qu’en milieu minoritaire il n’est pas 

inhabituel que l’anglais soit la langue dominante au foyer 28 . Ainsi, plusieurs 

22 

23 

24 

25 

26 

27 

28 

Voir Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc c Canada, [2008] 1 RCS 383, 2008 

CSC 15. 

Loi sur les services en français, LRO 1990, c F 32 ; Loi sur les Tribunaux judiciaires, LRO 1990, c C 

43. 

Loi de 1870 sur le Manitoba, 33 Victoria, c 3 (Canada); Charte de la ville de Winnipeg, LM 2002, c 

39 (CanLII). 

French Language Services Act, RSPEI 1988, c F-15.1 (CanLII). 

Loi sur les services en français, SNS 2004, c 26 (CanLII). 

Loi sur les langues, LRY 2002, c 133 (CanLII) ; Loi sur les langues officielles, LRTN-O 1988, c O-1 

(CanLII) ; Loi sur les langues officielles, LRTN-O (Nu) 1988, c O-1 (CanLII) et la Loi sur la protection 

de la langue inuit, LNun 2008, c 17 (CanLII). 

« Au cours des trente dernières années, on a assisté à une augmentation des transferts 

linguistiques au sein des minorités francophones à l’extérieur du Québec. En 1971, 30 p. cent 

des francophones parlaient une autre langue que le français le plus souvent à la maison, 

d’ordinaire l’anglais, comparativement à 37 p. cent en 1996 et à 38 p. cent en 2001 ». Voir


enfants de parents ayant des droits sous l’article 23 de la Charte canadienne des 

droits et libertés 29 (« Charte »), c’est-à-dire des personnes qui sont inscrites ou qui 

pourraient être inscrites dans une école de langue française, ne sont pas 

comptabilisées en fonction de la PLOP comme étant francophones. Voilà des 

enfants canadiens pour lesquels le français est une langue maternelle, qui parlent 

le français et qui fréquentent des écoles de langue française, mais qui ne sont pas 

comptabilisés parmi la clientèle susceptible de demander des services fédéraux 

dans cette langue. De tels exemples abondent dans un pays pluraliste comme le 

Canada, où les tribunaux ont souvent été appelés à se pencher sur des questions 

de cette nature. 

B. 

Le régime actuel au regard de l’évolution de la jurisprudence 

Il est permis de croire que plusieurs aspects du régime réglementaire actuel, 

relatif aux communications et aux services dans la langue de la minorité, ne sont 

plus valides sur le plan juridique. Cette affirmation découle principalement de 

l’évolution de la jurisprudence relative aux communications avec le public et de la 

prestation des services aux termes de la Charte et de la Loi sur les langues officielles. 

Il y a eu une évolution importante dans la pensée juridique et les valeurs qui 

constituent le fondement même des droits linguistiques. À la fin des années 

soixante, le concept d’égalité des langues elles-mêmes fut introduit 30 . Ensuite la 

notion d’égalité des locuteurs 31 est apparue mais tout en retenant une approche 

interprétative formelle et restrictive quant à celle-ci 32 . Subséquemment, les 

tribunaux ont fourni des interprétations qui ont fait ressortir que la finalité des 

garanties linguistiques était d’assurer la permanence et le développement des 

communautés de langue officielle et qu’une approche communautaire était 

nécessaire à cette fin 33 . Finalement, les tribunaux ont tranché que l’appui 

institutionnel était essentiel pour réaliser l’égalité dans les faits, et que la notion 

d’égalité ne devait pas être appauvrie dans le contexte de la législation 

linguistique 34 . 

29 

30 

31 

32 

33 

34 

Louise Marmen et Jean-Pierre Corbeil, Les langues au Canada : Recensement de 2001, Nouvelles 

perspectives canadiennes, Ministère des Travaux publics et Services gouvernementaux, 2004, p 

111. 

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. 

Voir supra note 1. 

Renvoi relatif aux droits linguistiques au Manitoba, [1985] 1 RCS 721 au para 31 (CanLII). 

Société des Acadiens du Nouveau-Brunswick Inc c Association of Parents for Fairness in Education, [1986] 

1 RCS 549 au para 65 (CanLII). 

Ford c Québec (Procureur général), [1988] 2 RCS 712 aux pp 748 et 749; Renvoi relatif à la Loi sur les 

écoles publiques (Man), art 79(3), (4) et (7), [1993] 1 RCS 839 à la p 850. 

R c Beaulac, [1999] 1 RCS 768 au para 24 ; DesRochers c Canada (Industrie), supra note 7 au para 

51.


En éducation, cela a conduit à la décision de la Cour suprême du Canada 

dans l’affaire Mahé c Alberta de reconnaître que le droit à l’instruction dans la 

langue de la minorité provinciale ou territoriale, aux termes de l’article 23 de la 

Charte, comporte le droit de recevoir cette instruction dans des établissements 

homogènes dont la gestion et le contrôle seront assurés par les représentants de la 

minorité linguistique 35 . Dans le domaine du droit criminel, cela a conduit à une 

affirmation dans l’affaire R c Beaulac que le droit à un procès dans la langue 

officielle de son choix suppose que le système judiciaire ne fera pas 

qu’accommoder les accusés mais qu’il sera structuré de façon à assurer un accès 

égal à un système de justice de qualité égale, aux membres des deux communautés 

linguistiques à desservir 36 . Concernant le devoir d’offrir des services dans les deux 

langues officielles, la Cour suprême du Canada a tranché dans l’affaire DesRochers 

que l’obligation du gouvernement fédéral ne consiste pas seulement à assurer les 

communications avec le public et la prestation des services dans les deux langues 

officielles de façon égale, mais comprend aussi l’obligation de garantir la 

prestation de services d’égale qualité, ce qui suppose que ceux-ci soient adaptés, 

lorsque cela s’avère nécessaire, aux besoins particuliers de chaque communauté 

linguistique à desservir 37 . 

C. 

Le régime actuel au regard des changements sociétaux 

Le contexte sociolinguistique a aussi beaucoup changé depuis 1969 et même 

depuis 1988, dans la mesure où la population canadienne s’est enrichie par une 

immigration importante de personnes qui, pour la plupart, n’avaient ni l’anglais 

ni le français comme langue maternelle ou langue d’usage. À titre d’exemple, en 

2008, le Canada a accueilli presque 250 000 immigrants sur son territoire 38 . De 

ceux-ci presque soixante pourcent avaient une connaissance de l’anglais et moins 

35 

36 

37 

38 

« [I]l est indispensable à cette fin que, dans chaque cas où le nombre le justifie, les parents 

appartenant à la minorité linguistique aient une certaine mesure de gestion et de contrôle à l’égard 

des établissements d’enseignement où leurs enfants se font instruire. Cette gestion et ce contrôle sont 

vitaux pour assurer l’épanouissement de leur langue et de leur culture ». Voir Mahé c Alberta, [1990] 

1 RCS 342 à la p 35 (CanLII). 

« Les tribunaux saisis d’affaires criminelles sont donc tenus d’être institutionnellement bilingues 

afin d’assurer l’emploi égal des deux langues officielles du Canada. À mon avis, il s’agit d’un 

droit substantiel et non d’un droit procédural auquel on peut déroger ». Voir R. c Beaulac, supra 

note 34 au para 28 (CanLII). 

« Ce qui compte, c’est que les services [fédéraux] offerts soient de qualité égale dans les deux 

langues. L’analyse est forcément comparative. Ainsi, dans la mesure où Simcoe Nord, 

conformément aux objectifs des programmes, faisait des efforts pour toucher la communauté 

linguistique majoritaire et l’engager dans l’élaboration et la mise en œuvre des programmes, il lui 

incombait d’en faire autant pour la communauté linguistique minoritaire ». Voir DesRochers c 

Canada (Industrie), supra note 7 au para 54 (CanLII). 

Citoyenneté et immigration Canada, Faits et chiffres 2008 – Aperçu de l’immigration : résidents 

permanents et temporaires, en ligne : Citoyenneté et immigration Canada (consulté le 6 septembre 2011).


de cinq pourcent une connaissance du français. Moins de cinq pourcent de ces 

personnes connaissaient l’anglais et le français, mais plus de trente-trois pourcent 

n’avaient aucune connaissance des langues officielles 39 . L’immigration dite 

« francophone » 40 n’est pas proportionnelle au poids démographique des 

communautés francophones et acadiennes du Canada 41 : ceci est inéquitable, 

contribue à réduire le poids relatif de ces communautés alors que leurs effectifs 

absolus – en fonction de la langue maternelle – sont en croissance 42 , et ne semble 

pas respecter l’objet même de la Loi sur l’immigration et la protection des réfugiés 43 . Par 

ailleurs, les nouveaux arrivants francophones s’intègrent davantage à la 

communauté de langue anglaise, réduisant de ce fait la proportion de la 

population dont le français est la langue principale 44 . 

Qui plus est, les populations minoritaires de langue française qui étaient 

largement situées dans des zones rurales se sont déplacées en grand nombre vers 

des centres urbains 45 où elles ne constituent pas une proportion importante de la 

population totale ; ceci a réduit l’importance des noyaux francophones 46 et créé 

39 

40 

41 

42 

43 

44 

45 

46 

Ibid. 

« Connaissances linguistiques : Les catégories de connaissance des langues officielles, chez les 

résidents permanents, sont au nombre de quatre : anglais seulement, français seulement, français 

et anglais, ou ni l’un ni l’autre. Il s’agit d’un indicateur à déclaration volontaire pour préciser la 

connaissance de l’une ou l’autre des langues officielles ». Voir Citoyenneté et immigration 

Canada, Glossaire des termes et concepts, en ligne : Citoyenneté et immigration Canada 

(consulté le 6 

septembre 2011). 

En fonction de la première langue officielle parlée on compte 7 536 315 francophones à l’échelle 

du pays, soit 24 % de la population, voir Fédération des communautés francophones et 

acadienne du Canada, Profil des communautés francophones et acadiennes du Canada, 3 e ed, 2009, à 

la p 5, en ligne : Fédération des communautés francophones et acadienne 

. 

Statistique Canada, Le portrait linguistique en évolution, Recensement de 2006, Ottawa, Ministre de 

l’industrie, 2007, en ligne : Statistique Canada . 

LC 2001, c 27, l’al 3(1)b.1) prévoit qu’un objet en matière d’immigration est « de favoriser le 

développement des collectivités de langues officielles [sic] minoritaires au Canada ». 

Selon le professeur Charles Castonguay : « […] à l’âge de 45 ans, les francophones issus de 

l’immigration adoptent davantage la langue anglaise que la langue française dans toutes les 

régions métropolitaines de recensement à l’extérieur de la “bilingual belt”, c’est-à-dire la zone de 

bilinguisme entourant le Québec ». Voir Chambre des communes, Comité permanent des 

langues officielles, Rapport 3 – Recrutement, accueil et intégration : quel avenir pour l’immigration dans 

les communautés de langues officielles en situation minoritaire , 40 e lég, 3 e sess à la p 31. 

Rodrigue Landry, « Libérer le potentiel caché de l’exogamie : Profil démolinguistique des enfants 

des ayants droit francophones selon la structure familiale » dans Commission nationale des 

parents francophones, Là où le nombre le justifie…IV, octobre 2003, en ligne : Commission 

nationale des parents francophones . 

À titre d’exemple, dans l’affaire Forum des maires de la Péninsule acadienne c Canada (Agence 

d’inspection des aliments), 2003 CF 1048, [2004] 1 RCF 136 au para 5, la Cour fédérale confirma


une situation difficile pour les francophones déménagés en zone urbaine en 

matière d’accès à des services en français 47 . Ce mouvement a aussi accentué 

l’incidence de l’exogamie, qui a souvent amené des francophones à s’identifier 

comme appartenant à des foyers où l’on retrouve des personnes parlant le plus 

souvent l’anglais 48 . Enfin, soulignons l’émergence remarquable d’un réseau 

d’institutions – scolaires, communautaires, culturelles, sportives et autres – 

opérées par les communautés de langue officielle. Si la complétude de ce réseau 

demeure imparfaite, il n’en demeure pas moins que ces institutions, gérées par et 

pour les communautés de langue officielle, contribuent à leur façon à stabiliser, 

voire à augmenter, les demandes que les institutions fédérales communiquent 

avec le public et assurent la prestation de leurs services dans plus d’une langue 

officielle 49 . 

D. 

Le constat : un régime caduc 

Le régime linguistique actuel qui découle de la Loi sur les langues officielles et 

du Règlement et directives qui assurent sa mise en œuvre précède ou n’a pas été 

adapté à tous ces changements jurisprudentiels, démographiques et 

sociolinguistiques. Ceci est particulièrement vrai de l’obligation d’offrir des 

services dans les deux langues officielles, sauf exceptions, « là où la demande est 

importante ». La Loi sur les langues officielles n’offre que quelques facteurs non 

obligatoires à considérer pour définir la demande et laisse la définition du droit et 

des mécanismes de mise en œuvre à la réglementation. Cette dernière est très 

technique, objective et axée sur les besoins de l’administration. 

À titre d’exemple considérons Truro, une ville de taille moyenne située en 

Nouvelle-Écosse. Au-delà des nombres 50 , la communauté francophone et 

acadienne de Truro semble bien vivante. L’École acadienne de Truro offre 

l’enseignement en français de la maternelle à la 12 e année et deux centres 

47 

48 

49 

50 

l’allégation de la demanderesse que « la réorganisation administrative de la défenderesse a été 

faite au détriment des régions francophones du nord-est du Nouveau-Brunswick ». 

À titre d’exemple, les 79 000 locuteurs francophones d’Edmonton, répartis sur un territoire de 

plus de 600 kilomètres carrés, ont accès à des services en français dans un seul et unique bureau 

de poste, tout comme la communauté francophone de Vancouver qui peut seulement recevoir 

des services en français au bureau de poste situé au 349, rue Georgia O. Voir Secrétariat du 

Conseil du Trésor du Canada, Burolis, en ligne : Burolis (consulté le 30 août 2011). 

Voir par ex Jules Rocque, « Le phénomène des couples mixtes et l’école de langue française en 

milieu francophone minoritaire dans l’Ouest canadien », Cahiers Franco-canadiens de l’Ouest, vol. 

21, nº 1-2 (2009) 249. 

Raymond Breton, « Institutional Completeness of Ethnic Communities and the Personal 

Relations of Immigrants », supra note 4. 

Sur une population de plus de 11 000 personnes 1,1% ont le français comme première langue 

officielle parlée voir Statistique Canada, Profil – Langue, mobilité et migration, Recensement de 

2001.


socioculturels desservent la communauté francophone et acadienne 51 . Malgré 

cette vitalité objective, aucun bureau de la Société canadienne des postes, une 

institution fédérale de première ligne, n’offre des services en français 52 . 

Au lieu de simplement répondre froidement aux exigences bureaucratiques, 

la règlementation en matière de langues officielles devrait plutôt avoir pour 

objectif d’encourager l’usage des deux langues officielles et de promouvoir le 

développement des communautés de langue officielle en situation minoritaire. 

Or, le Règlement actuel se réfère uniquement à des données statistiques pour 

établir si les nombres justifient des services et communications dans la langue de 

la minorité, nombres qui ne tiennent pas compte des immigrants allophones qui 

s’identifient à la communauté linguistique minoritaire 53 , des familles exogames 54 , 

des Canadiennes et des Canadiens qui ont été instruits dans des écoles 

d’immersion 55 et qui choisissent de s’identifier parfois ou en permanence à la 

communauté linguistique minoritaire, ou encore des membres du public qui ont 

une certaine connaissance du français et qui souhaiteraient pouvoir s’en servir de 

temps à autre 56 . Ceci est incompatible avec le texte législatif 57 lui-même et, 

notamment, avec le paragraphe 20(1) de la Charte, qui prévoit l’accès « au public », 

et non aux seuls membres de la minorité linguistique, à des services dans les deux 

langues officielles. Cela ignore aussi le facteur, non obligatoire, faut-il reconnaître, 

de la spécificité de la minorité inclus au paragraphe 32(2) de la Loi sur les langues 

officielles 58 . On suppose mécaniquement et sans réflexion sérieuse que seuls les 

francophones tels que définis demanderont le service dans la langue minoritaire. 

51 

52 

53 

54 

55 

56 

57 

58 

Le Centre communautaire francophone de Truro et le Jardin d’enfants de Truro. 

Secrétariat du Conseil du Trésor du Canada, Burolis, en ligne : Burolis 

(consulté le 27 février 

2011). 

Le critère de la langue parlée le plus souvent à la maison est particulièrement problématique en 

milieu minoritaire. « Cette définition n’inclut pas les francophones qui parlent l’anglais ou une 

autre langue le plus souvent à la maison ». Voir Institut canadien de recherche sur les minorités 

linguistiques, Qui sont les francophones Analyse de définitions selon les variables du recensement par 

Éric Forgues, Rodrigue Landry et Jonathan Boudreau, Moncton, Consortium national de 

formation en santé, 2009 aux pp 10-11. 

Ibid. 

Ibid ; Il est à noter qu’en 2008-2009 il y avait 328 363 étudiants inscrits dans des programmes 

d’immersion française au primaire et au secondaire, au Canada. Voir Canadian Parents for 

French, Enrolment Trends 2008-2009, Reports, en ligne : Canadian parents for French 

. 

Michael Aquilino, « Qui suis-je : Identité linguistique et exclusion des non-ayants-droit par 

l’article 23 de la Charte » (2006-2007) 38 RD Ottawa 67. 

L’article 21 de la Loi sur les langues officielles prévoit que « [l]e public a, au Canada le droit de 

communiquer avec les institutions fédérales et d’en recevoir les services conformément à la 

présente partie » [nous soulignons]. 

Le paragraphe 32(2) prévoit que le gouverneur en conseil peut, en vue de déterminer la « demande 

importante” tenir compte notamment « de la spécificité de cette minorité » de langue officielle.


Le problème principal est d’avoir restreint l’accès aux services généraux du 

gouvernement fédéral, sauf exceptions, aux endroits où il y existe une demande 

importante sans avoir prescrit dans la partie IV de la Loi sur les langues officielles des 

paramètres obligatoires, clairs, et compatibles avec l’objet même de la partie, qui 

est d’assurer un accès égal à des services d’égale qualité aux deux communautés 

linguistiques de langue officielle, au public en somme, et d’encourager l’usage de 

la langue minoritaire pour promouvoir le maintien et le développement des 

communautés de langue officielle. Il faut que les critères à établir reflètent les 

valeurs qui animent la Loi sur les langues officielles et qu’ils tiennent compte de la 

réalité. À ce compte, il est important de réaliser que les facteurs psychologiques 

sont très importants 59 lorsqu’il est question du comportement des membres d’une 

communauté en situation minoritaire et que l’offre active de services aura une 

incidence très grande 60 sur l’effort individuel et collectif de contrer les pressions 

assimilatrices et de demander des services. La personne francophone en situation 

minoritaire accusée d’un crime grave qui est appelée à comparaître devant un juge 

ne sera pas portée à demander d’être entendue en français, si elle est bilingue, 

même imparfaitement, parce qu’elle aura l’impression d’incommoder celui devant 

lequel elle se trouve vulnérable 61 . La personne francophone en situation 

minoritaire qui souffre d’insécurité culturelle alors qu’elle est bilingue n’aura pas 

toujours le réflexe de demander d’être servie en français dans une institution 

formellement bilingue mais où il est clair que le service en français est un simple 

accommodement à en juger par l’ambiance de l’établissement et l’usage laborieux 

du français par les prestataires des services 62 . De là l’importance d’une approche 

institutionnelle, comme l’enseigne la Cour suprême du Canada dans les affaires 

Beaulac 63 et DesRochers 64 . 

59 

60 

61 

62 

63 

64 

Linda Cardinal, Nathalie Plante et Anik Sauvé,« De la théorie à la pratique : Les mécanismes 

d’offre des services en français dans le domaine de la justice en Ontario » dans Volume 2 : Les 

perceptions des fonctionnaires et des usagères et usagers, 2010, en ligne : Chaire de recherche sur la 

francophonie et les politiques publiques Université d’Ottawa . 

Ibid. 

Suite à une modification en 2008 au Code criminel, LRC 1985, c C-46, le juge doit aviser l’accusé 

de son droit à un procès dans la langue officielle de son choix dans tous les cas. D’ailleurs, la 

Cour suprême du Canada a tranché que « [l]a disponibilité de sténographes judiciaires, la charge 

de travail des procureurs ou des juges bilingues et les coûts financiers supplémentaires de 

modification d’horaire ne doivent pas être pris en considération parce que l’existence de droits 

linguistiques exige que le gouvernement satisfasse aux dispositions de la Loi en maintenant une 

infrastructure institutionnelle adéquate et en fournissant des services dans les deux langues 

officielles de façon égale ». Voir R c Beaulac, supra note 34 au para 39. 

Linda Cardinal, Nathalie Plante et Anik Sauvé, De la théorie à la pratique : Les mécanismes d’offre 

des services en français dans le domaine de la justice en Ontario, supra note 59. 

R c Beaulac, supra note 34 au para 39. 

DesRochers c Canada (Industrie), supra note 7 au para 51.


Nous ne sommes pas entièrement dépourvus de précédents lorsqu’il est 

question de décider des nombres qui suffiraient pour que l’on pose des gestes en 

faveur de communautés de langue officielle en situation minoritaire. La Cour 

suprême du Canada a statué plusieurs fois sur l’évaluation des nombres suffisants 

pour justifier l’ouverture d’une école ou la création d’un conseil scolaire pour le 

bénéfice de la communauté de langue officielle en situation minoritaire. Dans 

l’affaire Arsenault-Cameron c Île-du-Prince Édouard elle a refusé d’accepter que les 

nombres utilisés pour satisfaire les besoins généraux de l’administration soient 

compatibles avec l’objet de l’article 23 de la Charte : 

Les questions de transport auraient dû être appliquées différemment dans le cas des 

enfants de la minorité linguistique pour au moins deux raisons. Premièrement, 

contrairement aux enfants de la majorité linguistique, les enfants visés par l’art.23 devaient 

faire un choix entre fréquenter une école locale dans la langue de la majorité et fréquenter 

une école moins accessible dans la langue de la minorité. La décision du ministre créait une 

situation qui avait pour effet de dissuader de nombreux enfants visés par l’art. 23 de 

fréquenter l’école de la minorité linguistique en raison de la durée du transport.Un tel 

facteur dissuasif n’existerait pas dans le cas des enfants de la majorité. Deuxièmement, le 

choix de transporter les élèves aurait une incidence sur l’assimilation des enfants de la 

minorité linguistique tandis que les modalités de transport n’avaient aucune répercussion 

culturelle sur les enfants de la majorité linguistique 65 . 

Dans l’affaire Mahé c Alberta 66 , on peut lire à la page 384 : 

Que doivent prendre en considération les tribunaux qui étudient la question de la 

« justification par le nombre » – la demande actuelle, la demande potentielle, ou autre 

chose […] À mon sens, le chiffre pertinent aux fins de l’art. 23 est le nombre de personnes 

qui se prévaudront en définitive du programme ou de l’établissement envisagés. Il sera 

normalement impossible de connaître le chiffre exact, mais on peut en avoir une idée 

approximative en considérant les paramètres dans lesquels il doit s’inscrire – la demande 

connue relative au service et le nombre total de personnes qui pourraient éventuellement 

se prévaloir du service. 

L’approche de la Cour suprême du Canada est incompatible avec le régime 

fédéral mis en place depuis l’entrée en vigueur de la Loi sur les langues officielles de 

1988 relativement à la prestation de services là où il y a une demande importante. 

Ceci s’explique par le fait que la demande est évaluée par le gouvernement fédéral 

de façon mécanique, mathématique, sans tenir compte du devoir constitutionnel 

de desservir tout le public qui fait le choix d’être servi dans une langue officielle 

ou l’autre ou qui pourrait faire un tel choix, et de favoriser des moyens qui auront 

pour effet de soutenir les minorités de langue officielle. À titre d’exemple, 

considérons la municipalité de Brampton, en Ontario, où les bureaux du 

gouvernement ontarien offrent depuis 2007 leurs services dans les deux langues 

officielles alors que seul un bureau fédéral 67 sur six dessert la communauté 

65 

66 

67 

[2000] 1 RCS 3 au para 50. 

[1990] 1 RCS 342. 

Le seul bureau étant la gare ferroviaire : Via Rail Inc, 31, rue Church, Brampton (Ontario).


francophone de cette même localité 68 . Le fait de sous-estimer les nombres chez la 

population minoritaire est déjà un problème d’envergure 69 parce qu’il réduit 

l’accès aux services et favorise l’assimilation. Adopter une évaluation purement 

objective est une approche troublante parce qu’elle force le gouvernement à 

s’éloigner de l’objet fondamental de la Loi sur les langues officielles et de l’article 20 

de la Charte, qui est de favoriser le maintien des communautés de langue officielle 

en situation minoritaire 70 . 

Il est d’ailleurs assez singulier que la demande doive précéder l’offre de 

services pour établir le nombre nécessaire pour soulever l’obligation 

gouvernementale 71 . Serait-ce la responsabilité de la minorité linguistique de 

démontrer qu’il y aurait une demande potentielle suffisante L’article 28 de la Loi 

sur les langues officielles, qui exige l’offre active des services offerts par les 

institutions fédérales,ne codifie-t-il pas le principe selon lequel, en matière de 

communications avec le public et de prestation des services, « l’offre crée sa propre 

demande » 72 

III. 

UNE RÉFORME FONDÉE SUR DES PRINCIPES CLAIRS 

Cette deuxième partie met de l’avant deux principes qui devraient soustendre 

toute réforme éventuelle du régime fédéral de désignation des services et 

des communications dans la langue de la minorité. Premièrement, il est suggéré 

que les communications et les services fédéraux soient offerts aux personnes 

68 

69 

70 

71 

72 

Secrétariat du Conseil du Trésor du Canada, Burolis, en ligne : Burolis (consulté le 27 

février 2011). 

« [L]e fait d’utiliser l’information sur la langue d’usage au foyer, sous-estime probablement la 

population qui pourrait demander à recevoir des services dans cette langue. » Voir Statistique 

Canada, Professionnels de la santé et minorités de langue officielle au Canada, 2001 et 2006, no de 

catalogue 91-550-XWF à la p 13, en ligne : Statistique Canada 

. 

Selon la Cour suprême du Canada il y a lieu d’adopter une évaluation qualitative plutôt que 

strictement objective ou mathématique sous l’article 23 de la Charte (droits à l’instruction dans la 

langue de la minorité) : Solski (Tuteur de) c Québec (Procureur général), [2005] 1 RCS 201, aux paras 

28 et 35 ; Nguyen c Québec (Éducation, Loisir et Sport), [2009] 3 RCS 208, au para 28. Une 

approche objective ou mathématique est problématique dans certaines circonstances : à titre 

d’exemple, l’immigrant français qui parle un français impeccable n’est pas admissible, sous 

l’article 23 de la Charte, à l’instruction en français en milieu minoritaire ; en Ontario, cette 

situation inéquitable est contrecarrée par l’application de l’article 293 de la Loi sur l’éducation, 

LRO 1990, c. E.2, qui prévoit un processus d’admission pour les élèves « non-francophones » ; 

voir aussi La Commission scolaire francophone du Yukon No. 23 c Procureure générale du Territoire du 

Yukon, 2011 YKSC 57, para 762. 

Linda Cardinal, Nathalie Plante et Anik Sauvé, De la théorie à la pratique : Les mécanismes d’offre 

des services en français dans le domaine de la justice en Ontario, supra note 59. 

En science économique, l’idée voulant que l’offre crée sa propre demande (la loi de Say) est 

attribuée à Jean-Baptiste Say (1767-1832).


pouvant communiquer dans la langue officielle. Deuxièmement, la spécificité de 

la communauté visée devrait figurer parmi les critères obligatoires servant à 

désigner les bureaux fédéraux tenus de communiquer et d’offrir leurs services 

dans les deux langues. 

A. La communication et l’offre de services à toute personne 

pouvant communiquer dans la langue officielle en question 

sans égard au sentiment d’appartenance, aux origines 

ethniques ou à l’utilisation de cette langue au foyer ou au 

travail 

L’identité est un aspect éminemment personnel de l’être humain. Celle-ci est 

dynamique et peut évoluer avec le temps et varier selon la localisation 

géographique. À titre d’exemple, une personne bilingue habitant l’ouest de l’Île 

de Montréal pourrait très bien fréquenter un centre communautaire où la langue 

dominante est l’anglais et y entretenir des contacts sociaux avec plusieurs dans 

cette langue, à un point tel qu’elle se perçoive comme étant un membre à part 

entière de cette communauté. Au bureau, par contre, il est possible que le français 

soit sa langue d’usage alors qu’au foyer elle choisit d’alterner entre l’anglais et le 

français avec ses enfants, pour favoriser leur apprentissage des deux langues 

officielles 73 . Avec ses parents elle pourrait communiquer dans une langue nonofficielle 

: la langue maternelle de son père, par exemple. Quelle catégorie, 

anglophone ou francophone, lui conviendrait le mieux et avec quelle catégorie 

linguistique s’identifierait-elle Si elle déménageait à Toronto ces réponses 

varieraient sûrement. Vu la nature changeante de l’identité, quelle est l’utilité de 

procéder sur une base identitaire en vue de déterminer dans quelle langue ou 

dans quelles langues les autorités publiques devraient la comptabiliser, pour les 

fins de la détermination de la demande suffisante 

Plusieurs Canadiennes et Canadiens déclarent avoir les deux langues 

officielles comme langues maternelles lorsqu’ils répondent au recensement 74 . Ce 

phénomène est particulièrement marqué au sein des familles exogames où un 

parent transmet l’anglais aux enfants alors que l’autre parent leur enseigne, 

simultanément, le français. Ainsi, onze pour cent des enfants issus d’unions 

73 

74 

Voir Charte de la langue française, LRQ, c C-11, chapitre V ; Voir Richard Y. Bourhis (ed), The 

Vitality of the English-Speaking Communities of Quebec: From Community Decline to Revival, Montréal, 

CEETUM, Université de Montréal, 2008. 

En 2006, 98 625 Canadiennes et Canadiens déclaraient avoir les deux langues officielles comme 

langues maternelles alors que 10 790 déclaraient avoir le français, l’anglais et une langue nonofficielle 

comme langues maternelles, voir Statistique Canada, Population selon la langue 

maternelle, par province et territoire, Recensement de 2006, en ligne : Statistique Canada 

.


exogames au Québec, en 2001, déclaraient l’anglais et le français comme langues 

maternelles, alors que dans les autres provinces cinq pour cent de ces enfants 

s’identifiaient comme étant officiellement bilingue 75 . Malgré que ces enfants 

soient officiellement bilingues et donc susceptibles de requérir des services 

fédéraux dans l’une ou l’autre langue officielle, le Règlement les classe sous la 

bannière anglophone dès lors que l’anglais est utilisé plus souvent que le français 

au foyer. Avec un taux d’exogamie en pleine croissance 76 il y aurait lieu, bien sûr, 

d’adapter le Règlement à cette nouvelle réalité. 

Cette inquiétude quant aux différentes façons de classer la population 

canadienne sur le plan linguistique n’est pas nouvelle. Il y a presque trente ans, 

l’honorable juge Robert, siégeant alors à la Cour du Banc de la Reine du 

Nouveau-Brunswick, s’exprimait comme suit dans l’affaire Société des Acadiens du 

Nouveau-Brunswick : 

Dans les différentes lois, règlements et directives précités, on trouve les termes langue 

maternelle, langue officielle, langue dominante, première langue apprise et encore 

comprise, personnes parlant l’autre langue et, enfin, francophones et anglophones. L’usage 

incessant de ces différents termes est peut être de mise mais il contribue à embrouiller la 

pensée du législateur. De plus, comme nous le fit constater le Dr. McKay, linguiste et 

expert en bilinguisme et « testing », chacun de ces termes a plusieurs significations […] 77 . 

En effet, la pensée des rédacteurs du Règlement demeure, aujourd’hui, 

quelque peu embrouillée à cet égard dû à l’utilisation de termes aussi vagues et 

imprécis que « minorité francophone ou anglophone » et du concept statistique 

relié de la « première langue officielle parlée ». 

B. 

L’identité détermine l’accès aux services : une situation 

intenable 

Soulignons d’emblée que la Charte garantit au « public » le droit de 

communiquer avec les institutions du Parlement et du gouvernement du Canada 

dans la langue officielle de son choix 78 . Ce droit constitutionnel est mis en œuvre 

par la Loi sur les langues officielles, qui repose elle aussi sur la notion du « public », 

comme l’atteste le préambule et l’article 21 : 

75 

76 

77 

78 

Louise Marmen et Jean-Pierre Corbeil, supra note 28 à la p 82. 

Rodrigue Landry, supra note 45. 

Société des Acadiens du Nouveau-Brunswick c Minority Language School Board No 50 (1983), 48 RN-B 

(2 e ) 36 à la p 42. 

Loi constitutionnelle de 1982, supra note 9.


« Préambule 

Attendu: qu’elle [la Constitution] 

prévoit en outre des garanties quant au 

droit du public à l’emploi de l’une ou 

l’autre de ces langues pour 

communiquer avec les institutions du 

Parlement et du gouvernement du 

Canada ou pour en recevoir les services; 

Droits en matière de communication 

21. Le public a, au Canada, le droit de 

communiquer avec les institutions 

fédérales et d’en recevoir les services 

conformément à la présente partie. » 

« Preamble 

AND WHEREAS the Constitution of 

Canada also provides for guarantees 

relating to the right of any member of 

the public to communicate with, and 

to receive available services from, any 

institution of the Parliament or 

government of Canada in either 

official language; 

Rights relating to language of 

communication 

21. Any member of the public in 

Canada has the right to communicate 

with and to receive available services 

from federal institutions in accordance 

with this Part. » 

Pourtant, le Règlement, lui, définit la demande importante en fonction de la 

population de la minorité francophone ou anglophone, un concept qui ne semble 

pas concorder avec le cadre législatif établit par sa loi habilitante. 

Le concept législatif du « public » en est un qui témoigne d’ouverture et qui 

invite d’inclure toute personne qui voudrait l’être, alors que celui de la « minorité 

francophone » est plutôt restrictif et s’applique difficilement à une société 

canadienne en constante mutation. Dans une étude portant sur l’immigration, 

publiée en 2002, le Commissariat aux langues officielles faisait le constat suivant : 

[L]a diversité est un phénomène nouveau, surtout dans les communautés francophones 

minoritaires. Dans le passé, ces communautés réussissaient à se maintenir grâce à leurs 

réseaux et, dans certaines régions, à l’arrivée de Québécois, qui sont de souche rapprochée. 

Aujourd’hui, elles accueillent des immigrants qui, oui, parlent français, mais ne partagent 

pas les mêmes origines ethniques et culturelles 79 . 

Ainsi, pour déterminer dans quelle langue officielle un récent immigrant 

voudra être servi par les institutions fédérales de sa localité, il sera souvent tout à 

fait inutile de considérer sa langue maternelle ou la langue qu’il utilise le plus 

souvent au foyer, comme le fait le Règlement. Le seul critère pertinent à examiner 

dans un tel cas devrait être la capacité de l’immigrant d’utiliser la langue. 

Dans l’arrêt Solski 80 , la Cour suprême du Canada devait décider du droit d’un 

enfant de fréquenter l’école de langue anglaise en fonction de critères objectifs 

énoncés dans la Charte de la langue française 81 . Elle dira au paragraphe 31 : 

79 

80 

Commissaire aux langues officielles, L’immigration et les langues officielles : Obstacles et possibilités qui 

se présentent aux immigrants et aux communautés, novembre 2002 aux pp 6-7. 

Solski (Tuteur de) c Québec (Procureur général), supra, note 70.


Cependant, de nombreuses personnes remplissent les conditions requises par l’art. 23 sans 

appartenir à la minorité, même les francophones hors Québec qui ont choisi de faire 

instruire leurs enfants en anglais. À cet égard, même si, en définitive, l’art. 23 vise la 

protection et l’épanouissement des communautés linguistiques minoritaires, le par. 23(2) 

s’applique, indépendamment de la possibilité que les parents ou les enfants admissibles ne 

soient pas francophones ou anglophones ou qu’ils ne parlent pas ces langues à la maison. 

Les conditions qui doivent être remplies en vertu de l’art. 23 reflètent le fait que les 

néocanadiens décident notamment d’adopter l’une ou l’autre langue officielle, ou les deux 

à la fois, en tant que participants au régime linguistique canadien. 

En ce qui concerne les communications et la prestation des services par les 

institutions fédérales, aucune raison de principe justifierait que le régime 

linguistique canadien n’en fasse pas autant. Il est crucial pour l’avenir des 

communautés francophones en milieu minoritaire d’attirer vers elles davantage 

une proportion importante de nouveaux immigrants et, de façon générale, de 

permettre à ceux-ci d’adopter librement l’une ou l’autre des langues officielles, 

voire les deux. 

Dans la même étude de 2002, le Commissariat aux langues officielles 

décrivait l’immigration en milieu minoritaire de la façon suivante : 

Les communautés francophones minoritaires n’attirent pas un nombre d’immigrants 

suffisant par rapport à leur poids démographique : près d’un million de francophones 

vivent à l’extérieur du Québec, mais seulement 44 000 d’entre eux sont des immigrants. 

Cela signifie que moins d’un francophone minoritaire sur vingt est un immigrant. Il 

devrait y en avoir quatre fois plus, si on prend la proportion d’immigrants au sein de la 

population anglophone du Canada comme point de comparaison 82 . 

Le Canada accueille entre 200 000 et 250 000 nouveaux immigrants à 

chaque année 83 ; le régime linguistique devrait donc être conçu en fonction de 

cette réalité et avoir comme objectif de faciliter l’attirance et l’intégration des 

nouveaux immigrants aux communautés de langue officielle. Il est temps que le 

Règlement prenne acte de l’évolution de la société canadienne à cet égard en 

permettant à tous les étrangers qui choisiront de s’installer au Canada de 

participer pleinement à sa vie collective, dans la langue officielle de leur choix 84 . 

C. Des modèles plus généreux : sources d’inspiration pour une 

réforme éventuelle 

Il y a lieu de s’inspirer de la jurisprudence de la Cour suprême du Canada où 

il est question du choix de la langue officielle par le citoyen et de sa faculté de 

s’identifier à l’une ou l’autre des communautés linguistiques. Dans l’affaire R. c 

81 

82 

83 

84 

LRQ c C-11. 

Commissaire aux langues officielles, L’immigration et les langues officielles : Obstacles et possibilités qui 

se présentent aux immigrants et aux communautés, supra note 79 à la p 6. 

Ibid à la p 3. 

Voir supra note 43.


Beaulac la Cour était appelée à décider ce que signifie « la langue de l’accusé ». Elle 

dira au paragraphe 33 : 

Une méthode simple, comme la langue maternelle ou la langue employée à la maison, ne 

convient pas, notamment parce qu’elle n’offre pas de solution pour de nombreuses 

situations possibles dans une société multiculturelle et ne répond pas au fait que la langue 

n’est pas une caractéristique statique. Certaines personnes soutiennent qu’elles ont deux 

langues maternelles. Certaines personnes ont une langue maternelle qui n’est ni le français 

ni l’anglais, et parlent à la maison soit leur langue maternelle, soit leur langue maternelle et 

le français ou l’anglais, ou le français et l’anglais. Il se peut que leur langue au travail soit 

l’anglais ou le français. Il se peut que leur langue de contacts sociaux ne soit pas la même 

que leur langue au travail. La langue d’usage d’une personne peut changer lorsque cette 

personne change d’emploi, se marie ou divorce, ou se fait de nouveaux amis. On pourrait 

décrire beaucoup d’autres situations de ce genre, mais cela n’est pas nécessaire. 

Ainsi, la Cour suprême du Canada reconnait la fluidité de l’identité de la 

personne et les difficultés que toute catégorie fondée sur cette base pourrait poser. 

Dans l’affaire R. c Beaulac, la Cour suprême du Canada trancha qu’en 

matière criminelle, l’accusé pourra réclamer un procès dans la langue officielle de 

son choix, en autant qu’il puisse donner des directives à son avocat dans cette 

langue. Selon la Cour : 

Aux fins des par. 530(1) et 530(4) [du Code criminel], la langue de l’accusé est l’une ou 

l’autre des deux langues officielles avec laquelle cette personne a des liens suffisants. Ce 

n’est pas forcément la langue dominante. Si l’accusé a une connaissance suffisante d’une 

langue officielle pour donner des directives à son avocat, il pourra affirmer cette langue 

comme sa langue, indépendamment de sa capacité de parler l’autre langue officielle 85 . 

Il est à noter que les droits linguistiques garantis par les articles 530 et 530.1 

du Code criminel s’appliquent à l’échelle du Canada, sans égard à la population de 

la minorité francophone ou anglophone de l’endroit en question. 

La récente Loi sur les langues officielles 86 du Nunavut utilise, tout comme son 

équivalent fédéral, le concept de la demande importante, mais propose une 

formulation plus inclusive de celui-ci. À son paragraphe 12(3), cette loi prévoit ce 

qui suit : 

85 

86 

R c Beaulac, supra note 34 au para 34 [nous soulignons]. 

Loi sur les langues officielles, LNu 2008, c 10.


« 12. […] 

Autres bureaux où la demande est 

importante 

(3) L’obligation d’une institution 

territoriale prévue au paragraphe (2), au 

regard des communications et des 

services, vaut également pour ses autres 

bureaux si l’emploi d’une langue 

officielle y fait l’objet, à cet égard, d’une 

demande importante comme 

l’attestent: 

a) soit la proportion de la 

population desservie par un bureau, 

qui a identifié la langue officielle 

comme sa langue maternelle ou sa 

langue préférée, et la spécificité de cette 

population ; 

b) soit le volume des 

communications ou des services entre 

un bureau et les utilisateurs de chaque 

langue officielle. » 

[Nous soulignons] 

« 12. […] 

Other offices where significant 

demand 

(3) A territorial institution has the duty 

described in subsection (2) with respect 

to its other offices if there is a 

significant demand for 

communications with and services 

from the office in an Official Language 

as evidenced by any of the following: 

a) the proportion of the 

population served by an office who 

have designated the Official Language 

as their first or preferred language, and 

the particular characteristics of that 

population; 

b) the volume of communications 

or services between an office and 

members of the public using each 

Official Language. » 

[Emphasis ours] 

En intégrant au sein du régime le droit au service dans sa « langue préférée », 

le législateur territorial semble reconnaître que sur le plan de l’identité 

linguistique, il est préférable d’accorder une certaine latitude aux individus et 

qu’il faut éviter l’utilisation de définitions restrictives. Le législateur fédéral 

pourrait très bien s’inspirer du modèle mis en place au Nunavut, qui d’ailleurs 

utilise obligatoirement, tel que reproduit ci-haut, le critère de la spécificité de la 

population. 

En Ontario, la Loi sur les services en français 87 garantit au public le droit de 

recevoir les services du gouvernement provincial en français dans vingt-cinq (25) 

régions désignées. En 2009, le gouvernement de l’Ontario adoptait une nouvelle 

définition de ce qui constitue la population « francophone » de la province en vue 

de déterminer où elle devrait offrir ses services en français et communiquer dans 

cette langue. Suivant cette nouvelle « définition inclusive de la francophonie », la 

clientèle francophone potentielle est déterminée en calculant le nombre de 

87 

Voir supra note 23.


personnes dont la langue maternelle est le français ainsi que le nombre de 

personnes ayant une langue maternelle autre que le français ou l’anglais, mais qui 

ont une connaissance du français et utilisent cette langue à la maison 88 . Malgré le 

titre que porte cette définition, elle demeure problématique en raison de 

l’importance des mariages exogames au sein des communautés de langue officielle 

en situation minoritaire. Certes, la nouvelle définition ontarienne rend le régime 

en vigueur dans cette province plus inclusive mais du point de vue du régime 

fédéral la définition ontarienne représente le statu quo. 

La Cour suprême du Canada réaffirma dans l’affaire Solski l’importance 

d’adopter une analyse souple et généreuse en vue d’identifier les bénéficiaires des 

droits linguistiques : 

Il importe également d’adopter un point de vue socioculturel et de tenir compte de la 

situation de chaque enfant pour déterminer si des programmes d’enseignement dans la 

langue de la minorité sont offerts ou l’étaient. En examinant la situation qui existe dans 

une province autre que le Québec, il faut se rappeler qu’il se pourrait que des parents 

assimilés aient envoyé leur enfant à l’école de la majorité linguistique et que, dans la 

dernière portion du cheminement scolaire de l’enfant, ils se soient ravisés et l’aient inscrit à 

l’école de la minorité linguistique pour l’aider à réintégrer la communauté linguistique 

minoritaire et à en adopter la culture. Il se peut que l’enfant ait disposé d’un programme 

d’enseignement dans la langue de la minorité pendant tout son cheminement scolaire, 

mais que le choix de l’y inscrire ne soit devenu viable que lorsque les parents assimilés ont 

décidé de l’aider à rétablir des liens avec la communauté linguistique minoritaire et sa 

culture. Dans ce contexte, l’objet réparateur du par. 23(2) [de la Charte] entre en jeu et, 

comme nous l’avons vu, le droit qu’il garantit doit être interprété de manière à faciliter la 

réintégration, dans la communauté culturelle que l’école de la minorité est censée protéger 

et contribuer à épanouir, des enfants qui ont été isolés de cette communauté. Dans ces 

circonstances, il serait bon et conforme à l’objet du par. 23(2) que les frères et sœurs de cet 

enfant reçoivent leur instruction dans la langue de la minorité. Tout cela pour souligner 

que l’application de l’art. 23 doit tenir compte des disparités très réelles qui existent entre 

la situation de la communauté linguistique minoritaire du Québec et les communautés 

linguistiques minoritaires des territoires et des autres provinces 89 . 

Alors que l’analyse de la Cour dans l’affaire Solski porte sur les droits 

linguistiques dans le domaine scolaire, le raisonnement est transposable en 

matière de prestation des communications et des services gouvernementaux. Tout 

régime linguistique doit prendre acte de la situation socioculturelle spécifique des 

communautés de langue officielle vivant en milieu minoritaire, en portant une 

attention particulière au phénomène de l’assimilation et de l’impact de celui-ci sur 

88 

89 

Gouvernement de l’Ontario, Profil de la communauté francophone de l’Ontario, 2009,en ligne : 

Francophones en Ontario . Cette définition de la francophonie ontarienne a été adoptée suite à une 

recommandation du commissaire aux services en français de l’Ontario voir Commissariat aux 

services en français de l’Ontario, Ouvrir la voie, Rapport annuel 2007-2008, à la p 29, en ligne : 

Commissariat aux services en français de l’Ontario . 

Solski (Tuteur de) c Québec (Procureur général), supra note 70 au para 44.


l’identité des membres de ces communautés ainsi que l’importance d’amplifier la 

force d’attraction de celles-ci aux yeux des nouveaux arrivants au pays. 

L’intégration et l’épanouissement sont de mise et toute mesure qui est 

incompatible avec ces objets devrait être écartée. 

Tel que souligné précédemment, la Constitution garantit au « public » le 

droit de communiquer avec les institutions du Parlement et du gouvernement du 

Canada dans la langue officielle de son choix et d’en recevoir les services 90 . 

Pourtant, le Règlement actuel se fonde sur une vision très unidimensionnelle, très 

statique de la francophonie, qui s’oppose à l’approche de la Cour suprême du 

Canada dans son adoption des critères d’identification des autochtones et Métis 

dans l’affaire Powley, par exemple : 

L’auto-identification, les liens ancestraux et l’acceptation par la communauté sont des 

facteurs qui établissent l’identité métisse dans le cadre d’une revendication fondée sur 

l’art. 35 [de la Loi constitutionnelle de 1982]. En l’absence d’une identification formelle, les 

tribunaux devront statuer au cas par cas sur la question de l’identité métisse en tenant 

compte de la manière dont la communauté se définit, de la nécessité que l’identité puisse 

se vérifier objectivement et de l’objet de la garantie constitutionnelle 91 . 

Est-ce que la personne s’identifie à la communauté en question Cette même 

personne possède-t-elle « un lien réel avec la communauté historique dont les 

pratiques fondent le droit revendiqué » 92 Enfin, la personne est-elle acceptée par 

la communauté en question Voilà comment la Cour suprême du Canada 

procède en vue de déterminer l’appartenance d’une personne à une communauté 

métisse donnée. Dans le contexte d’une société pluraliste, comme la société 

canadienne, ne serait-il pas cohérent d’adopter une méthode similaire en misant 

davantage sur les critères d’auto-identification et d’acceptation par la communauté 

afin de définir la composition des communautés de langue officielle, aux fins du 

régime de prestation des services fédéraux Une telle approche aurait le mérite 

d’inclure les personnes vivant en milieu minoritaire qui voudraient intégrer la 

communauté et donc contribuerait à promouvoir la vitalité de celle-ci. 

Il est important de bien se rappeler que les communautés francophones en 

milieu minoritaire ont vécu longtemps sous le joug de l’Église catholique et 

formaient un groupe ethnique homogène ; ces communautés n’admettaient pas 

facilement les prétendus étrangers 93 . Cette époque est révolue et des francophones 

d’origines ethniques et culturelles variées se côtoient et forment ensemble une 

90 

91 

92 

93 

Loi constitutionnelle de 1982, supra note 9. 

R c Powley, [2003] 2 RCS 207 ; voir généralement Sébastien Grammond, Identity Captured by Law: 

Membership in Canada’s Indigenous Peoples and Linguistic Minorities, Montréal et Kingston, McGill- 

Queen’s University Press, 2009. 

R c Powley, supra note 91 au para 32. 

Voir Jack Jedwab, L’immigration et l’épanouissement des communautés de langue officielle au Canada : 

Politique, démographie et identité, Étude du Commissariat aux langues officielles, 2002, en ligne : 

Commissariat aux langues officielles .


nouvelle francophonie canadienne, dynamique et ouverte sur le monde ; la 

francophonie catholique, elle aussi, se caractérise aujourd’hui par la diversité et 

l’inclusion. À titre d’exemple, ce qui autrefois était l’Association canadiennefrançaise 

de l’Ontario est devenue maintenant l’Assemblée de la francophonie de 

l’Ontario avec objectif « de créer un organisme de représentation plus 

représentatif, plus inclusif et plus fort pour l’ensemble de la francophonie de 

l’Ontario » 94 . La diversité ethnoculturelle est donc maintenant au centre de ce 

qu’est l’Ontario français. La situation est semblable ailleurs au pays, incluant au 

Manitoba 95 . 

Le législateur fédéral dispose donc de plusieurs sources qui pourraient 

nourrir sa réflexion en vue d’une réforme éventuelle du Règlement. Les 

développements jurisprudentiels et législatifs récents pourraient guider ce dernier 

vers la conception d’un nouveau régime réellement inclusif et effectif. 

IV. 

UNE RÉFLEXION S’IMPOSE 

Le Règlement actuel fut adopté il y a plus de vingt (20) ans, il y a de cela une 

génération. L’heure est arrivée de réfléchir sur l’efficacité du régime actuel et sa 

capacité de contribuer à la protection des communautés de langue officielle en 

situation minoritaire ainsi qu’à leur développement et leur épanouissement. 

La première question qui se pose est de savoir s’il est approprié de définir le 

droit à des communications et à des services en fonction de nombres de 

personnes faisant partie de la population en situation minoritaire pour estimer si 

la demande est « importante ». En somme, il revient à se demander si la demande 

est importante eu égard aux besoins de l’administration ou eu égard au maintien 

de la communauté de langue officielle en situation minoritaire. Il est certain que 

les besoins de l’administration et le coût des services sont des préoccupations dont 

il faut tenir compte, mais ces considérations ne devraient sans doute pas être 

déterminantes à elles seules, pas plus dans le cas de l’article 20 de la Charte que 

dans celui de l’article 23 de cette même Charte. La Cour suprême du Canada a 

d’ailleurs laissé entendre encore une fois dans l’arrêt DesRochers 96 que les 

considérations financières et administratives ne sont pas en soi suffisantes pour 

justifier une limite aux droits constitutionnels garantis par l’article 20 de la Charte, 

dont l’article 22 de la Loi sur les langues officielles constitue une mesure de mise en 

94 

95 

96 

Assemblée de la francophonie de l’Ontario, « Historique », en ligne : Assemblée de la 

francophonie de l’Ontario . 

Fédération des communautés francophones et acadienne du Canada, Communiqué « Rapport 

du comité permanent des langues officielles sur l’immigration : vers une politique sur 

l’immigration francophone dans les communautés” (1 décembre 2010), en ligne : Fédération des 

communautés francophones et acadienne du Canada . 

DesRochers c Canada (Industrie), supra note 7.


œuvre. Ne serait-il pas plus respectueux de l’objet de la loi de tenir compte, aussi, 

de l’existence d’une communauté à desservir en fonction de critères qualitatifs 

comme l’état des infrastructures institutionnelles, de la cohésion culturelle, en 

somme de la « spécificité de la minorité », tel que prévu à l’alinéa 32(2)a) de la Loi 

sur les langues officielles 

La deuxième question qui se pose est celle de savoir si le recours à la méthode 

I de Statistique Canada dans l’appréciation de l’importance de la demande pour 

des communications et des services dans une langue est compatible avec l’objet de 

la partie IV de la Loi, qui est de définir la demande du « public ». Le Règlement a 

pour effet de classer la population en deux catégories, anglophones et 

francophones, en supposant que seuls les francophones tels que définis par 

Statistique Canada sauront faire appel à des services en français. Ceci est 

manifestement faux 97 . Il est important de tenir compte notamment des 

francophones qui vivent dans des familles exogames et des familles qui prétendent 

être bilingues sans langue dominante. 

Une étude importante des définitions selon les variables du recensement, 

« Qui sont les francophones », a été publiée par l’Institut canadien de recherche sur 

les minorités linguistiques en 2009. Les chercheurs examinent toutes les 

combinaisons possibles et concluent que la définition qui combine la langue 

maternelle et la connaissance des deux langues officielles permet d’inclure toutes 

les personnes qui peuvent potentiellement s’identifier aux francophones, sans les 

empêcher de s’identifier à d’autres communautés linguistiques 98 . Elle permet aussi 

d’écarter l’idée qu’il faut associer a priori les nouveaux arrivants à une 

communauté linguistique en particulier, mais continue de ne pas inclure les 

personnes de langue maternelle anglaise qui connaissent le français et l’anglais. 

Tel que déjà discuté, l’Ontario a récemment changé sa définition de la population 

francophone de la province pour adopter celle dont il est question ci-devant mais 

en excluant les personnes qui parlent le plus souvent l’anglais à la maison 99 . Cette 

approche est, tel que déjà mentionné, à écarter sur l’échiquier fédéral en raison de 

l’importance des mariages exogames en milieu minoritaire. 

Au fond, il s’agit de savoir si une définition identitaire est recherchée ou bien 

s’il serait plutôt souhaitable de privilégier une définition pertinente à une autre 

fin, telle la légitimité du choix en vue de l’obtention d’un service. Il semble que le 

gouvernement devrait permettre au plus grand nombre possible de faire un choix, 

c’est-à-dire de demander des services dans l’une ou l’autre langue, voire de 

s’associer à une communauté linguistique librement, ou encore aux deux au cours 

de leur vie, peut-être même simultanément. Il faut donc s’éloigner du concept de 

minorité sur ce plan et porter notre attention aux communautés de langue 

97 

98 

99 

R c Beaulac, supra note 34 au para 33. 

Institut canadien de recherche sur les minorités linguistiques, supra note 53 à la p 42. 

Gouvernement de l’Ontario, supra note 88.


officielle, une notion plus large, qui rassemble les membres de la minorité, les 

personnes qui s’y associent et celles qui parlent la langue sans être de langue 

maternelle française. Cette notion plus large comprend donc les catégories de 

personnes qui entrent dans les définitions de la méthode I de Statistique Canada, 

mais aussi des locuteurs de langue française, qu’ils choisissent ou non de 

s’identifier à la communauté de langue minoritaire. 

Pour toutes ces raisons il nous semble opportun que les communications et 

les services fédéraux soient offerts dans les deux langues officielles en fonction de 

la comptabilisation de toute personne capable de communiquer dans ces langues, 

sans égard à leur sentiment d’appartenance, origines ethniques ou utilisation de 

ces langues au foyer ou au travail. Ce principe devrait guider toute révision 

éventuelle du Règlement. 

A. 

La spécificité de la communauté en tant que critère juridique 

obligatoire 

Parmi les critères prévus par la Loi sur les langues officielles pouvant servir à 

déterminer la demande importante figure la « spécificité de cette minorité » 100 . Or, 

le Règlement n’utilise pas ce critère qualitatif, préférant s’en tenir aux critères 

strictement numériques pour définir la demande importante. Ainsi, le réseau 

institutionnel d’une communauté minoritaire particulière – ses écoles, ses centres 

communautaires, ses institutions culturelles et médiatiques, entre autres – n’est 

pas une considération pertinente aux fins du calcul règlementaire, sous le régime 

actuel. Cette décision d’évacuer toute considération qualitative du processus de 

désignation linguistique des bureaux fédéraux a été prise au détriment des 

communautés de langue officielle en milieu minoritaire, semble aller à l’encontre 

de l’intention du législateur et mérite donc d’être ravisée. 

Le paragraphe 32(2) de la Loi sur les langues officielles prévoit les critères qui 

peuvent servir afin de déterminer l’importance de la demande : 

100 

Loi sur les langues officielles, supra note 1 au para 32(2).


« Règlements 

32.(1) Le gouverneur en conseil peut, 

par règlement : 

a) déterminer, pour l’application 

de l’article 22 ou du paragraphe 23(1), 

les circonstances dans lesquelles il y a 

demande importante; 

b) en cas de silence de la présente 

partie, déterminer les circonstances 

dans lesquelles il incombe aux 

institutions fédérales de veiller à ce que 

le public puisse communiquer avec 

leurs bureaux, ou recevoir les services 

de ceux-ci, dans l’une ou l’autre langue 

officielle; 

c) déterminer les services visés au 

paragraphe 23(2) et les modalités de 

leur fourniture; 

d) déterminer pour le public et les 

voyageurs les cas visés à l’alinéa 24(1)a) 

et les circonstances visées à l’alinéa 

24(1)b); 

e) définir « population de la 

minorité francophone ou anglophone » 

pour l’application de l’alinéa (2)a). 

Critères 

(2) Le gouverneur en conseil peut, pour 

déterminer les circonstances visées aux 

alinéas (1)a) ou b), tenir compte : 

« Regulations 

32. (1) The Governor in Council may 

make regulations 

(a) prescribing the circumstances 

in which there is significant demand 

for the purpose of paragraph 22(b) or 

subsection 23(1); 

(b) prescribing circumstances not 

otherwise provided for under this Part 

in which federal institutions have the 

duty to ensure that any member of the 

public can communicate with and 

obtain available services from offices of 

the institution in either official 

language; 

(c) prescribing services, and the 

manner in which those services are to 

be provided or made available, for the 

purpose of subsection 23(2); 

(d) prescribing circumstances, in 

relation to the public or the travelling 

public, for the purpose of paragraph 

24(1)(a) or (b); and 

(e) defining the expression 

“English or French linguistic minority 

population” for the purpose of 

paragraph (2)(a). 

Where circumstances prescribed under 

paragraph(1)(a) or (b) 

(2) In prescribing circumstances under 

paragraph (1)(a) or (b), the Governor in 

Council may have regard to


a) de la population de la minorité 

francophone ou anglophone de la 

région desservie, de la spécificité de 

cette minorité et de la proportion que 

celle-ci représente par rapport à la 

population totale de cette région; 

b) du volume des communications 

ou des services assurés entre un bureau 

et les utilisateurs de l’une ou l’autre 

langue officielle; 

c) de tout autre critère qu’il juge 

indiqué. » 

[Nous soulignons] 

(a) the number of persons 

composing the English or French 

linguistic minority population of the 

area served by an office or facility, the 

particular characteristics of that 

population and the proportion of that 

population to the total population of 

that area; 

(b) the volume of communications 

or services between an office or facility 

and members of the public using each 

official language; and 

(c) any other factors that the 

Governor in Council considers 

appropriate. » 

[Emphasis ours] 

Les rédacteurs du Règlement ont choisi de tenir compte de tous les critères 

suggérés par le législateur, sauf celui de la spécificité de la communauté. Pourtant, 

les représentants des communautés de langue officielle en milieu minoritaire ont 

soulevé cette lacune lors des consultations sur l’avant-projet du Règlement : 

Conformément à l’article 84 de la Loi, l’avant-projet du Règlement a fait l’objet de 

consultations auprès des associations minoritaires de langue officielle, c’est-à-dire les 

associations de francophones nationales, provinciales et territoriales à l’extérieur du 

Québec et les associations d’anglophones provinciales et régionales du Québec. Le 

Commissaire aux langues officielles a aussi été consulté. Les intervenants étaient satisfaits 

de certains aspects de l’avant-projet, mais jugeaient que dans l’ensemble, celui-ci ne tenait 

pas suffisamment compte de la spécificité des minorités linguistiques francophones et 

anglophones. L’avant-projet a donc été modifié afin d’augmenter le nombre de localités où 

les principaux services fédéraux devraient être offerts dans les deux langues officielles [nous 

soulignons] 101 . 

Il n’est pas clair en quoi le fait d’augmenter le nombre de localités où certains 

services seraient offerts a répondu à la critique citée plus haut. Le fait demeure 

que le Règlement n’a pas incorporé des dispositions obligeant la considération de 

la spécificité de la communauté minoritaire en vue de déterminer quelles 

communautés pourraient bénéficier de l’offre des services fédéraux dans leur 

langue officielle. 

101 

Règlement sur les langues officielles – communications avec le public et prestation des services, 

Résumé de l’étude d’impact de la règlementation, (1991) Gaz CI, 1063.


D’ailleurs, selon le rapport annuel du Commissariat aux langues officielles de 

1990, l’Association de la presse francophone, l’Association des médias régionaux 

du Québec, la Fédération des francophones hors Québec et Alliance-Québec ont 

souligné, lors des consultations sur l’avant-projet du Règlement : 

[Que] le gouvernement doit trouver un moyen de tenir compte de la vitalité des 

communautés minoritaires, complément nécessaire des critères numériques. La Loi a 

d’ailleurs prévu des mesures réglementaires d’incitation, qui rejoignent ce concept de 

vitalité; cette vitalité se manifeste, par exemple, par la publication d’hebdomadaires dont la 

présence est importante, surtout à une période où la programmation régionale de Radio- 

Canada est réduite. La presse minoritaire représente également une forme essentielle 

d’offre active des services gouvernementaux 102 . 

Malgré tout, le critère législatif de la spécificité est resté lettre morte. 

B. 

L’intention du législateur 

Le 22 mars 1988, lors des délibérations qui ont mené à l’adoption de la Loi 

sur les langues officielles, l’honorable Ramon Hnatyshyn, ministre de la Justice, avait 

déclaré devant le comité législatif que : 

[C]ertaines caractéristiques de cette population [minoritaire de langue officielle], telles que 

ses institutions religieuses, sociales, culturelles, ou d’enseignement, […] donnent – mieux 

que le font les chiffres seuls – une bonne indication de sa vitalité et de ses possibilités 103 . 

Plus tard, le 7 juillet 1988, lors des débats entourant le projet de loi qui 

deviendrait la nouvelle Loi sur les langues officielles, l’honorable Ramon Hnatyshyn 

a souligné l’importance du critère de la spécificité lorsqu’il a dit : « Selon ce critère 

d’ordre qualitatif, il peut arriver que la situation et les besoins particuliers de 

minorités linguistiques données soient tels qu’on les considère comme 

suffisamment important pour justifier la prestation de services bilingues, même si 

le facteur quantitatif pointe dans l’autre direction » 104 . 

Ainsi, le gouvernement fédéral de l’époque, sous la direction du très 

honorable Brian Mulroney, a jugé bon d’insérer à l’alinéa 32(2)a) de la Loi sur les 

langues officielles 105 le critère de la spécificité de la minorité. Malheureusement, ce 

critère facultatif fut entièrement écarté par les rédacteurs du Règlement. Le 

renversement de cette décision serait une bonne indication que le gouvernement 

prend des mesures positives aux termes de ses engagements en vertu de la partie 

VII de la Loi sur les langues officielles. 

102 

103 

104 

105 

Commissaire aux langues officielles, Rapport annuel 1990, Ministre des Approvisionnements et 

Services Canada, 1991 à la p 71. 

Chambre des communes, Comité législatif sur le projet de loi C-72, Procès verbal, 33 e lég 2 e sess, 

nº1 (22 mars 1988) à la p 37. 

Chambre des communes, Débats, 33 e lég 2 e sess, (7 juillet 1988) à la p 17222. 

Supra note 1.


Le résumé de l’étude d’impact du Règlement, publié dans la Gazette du 

Canada le 23 mars 1991, étale certaines autres mesures envisagées par les 

rédacteurs du Règlement, notamment : 

On a également envisagé une approche basée sur le concept de la « demande potentielle », 

c’est-à-dire qu’on stimulerait la demande chez les minorités linguistiques qui ont, pendant 

longtemps, obtenu des services fédéraux dans la langue de la majorité, en leur fournissant 

des services dans les deux langues officielles dans certains bureaux pendant une « période 

d’essai » de plusieurs années ; à la suite de quoi, les services ne seraient dispensés que dans 

une seule langue si la demande n’était pas assez importante. Toutefois, une désignation des 

bureaux de « demande potentielle » pleinement conforme aux pouvoirs habilitants prévus 

par la Loi sur les langues officielles pose des problèmes d’ordre juridique. Cette approche 

aurait également dû comprendre une définition de la demande importante. On a proposé 

une règle unique, à caractère numérique, qui s’est révélée inadéquate parce qu’elle ne 

prenait pas en considération la diversité des institutions fédérales 106 . 

Le concept de la « demande potentielle » semble tout à fait compatible avec 

celui de la « demande importante » : le premier étant plutôt un outil qui 

permettrait de mesurer de façon plus équitable et avec une plus grande précision 

la demande importante dans une région particulière. Au lieu, les rédacteurs ont 

adopté un modèle par lequel l’offre des communications et des services fédéraux 

dans la langue de la communauté en situation minoritaire dépendra du volume 

des demandes reçues 107 pour lesdits services : une méthode tout à fait aberrante 

dans le contexte d’une communauté minoritaire de langue officielle. 

V. 

VERS DES SOLUTIONS CONCRÈTES 

Récemment, la Fédération des communautés francophones et acadienne 

(FCFA) du Canada s’est exprimée ainsi au sujet du Règlement : 

Le Règlement actuel n’utilise [que] des formules statistiques complexes pour définir où 

résident les francophones au Canada et quels bureaux fédéraux sont tenus d’offrir des 

services et des communications dans les deux langues. Il en résulte une certaine confusion 

lorsque les citoyens francophones cherchent à savoir quel bureau fédéral de leur région a 

l’obligation de leur donner des services dans leur langue. 

L’autre lacune est liée au fait qu’on n’utilise, justement, que des données statistiques pour 

définir ce qui constitue une collectivité francophone. On exclut ainsi des communautés 

qui, si elles sont de petite taille et ne constituent qu’une faible proportion de la population, 

n’en sont pas moins dynamiques et déterminées à vivre en français. Par exemple, dans la 

région des Kootenay, en Colombie-Britannique, on compte deux écoles francophones et 

une association francophone communautaire; pourtant, les deux centres de Service Canada 

n’ont aucune obligation d’offrir des services en français 108 . 

106 

107 

108 

Supra note 101 à la p 1061. 

Voir par ex l’al 5(1)n) du Règlement, supra note 15. 

Fédération des communautés francophones et acadienne du Canada, La mise en œuvre de la Loi 

sur les langues officielles, supra note 11 à la p 15.


Dans le deuxième volume de son rapport annuel 2009-2010, le Commissaire 

aux langues officielles du Canada dresse lui aussi un constat peu reluisant de l’état 

actuel du régime de communications et prestation des services au public : 

En résumé, l’exercice des bulletins de rendement montre que, cette année encore, trop 

d’institutions fédérales ont de la difficulté à faire l’offre active et à offrir des services en 

français et en anglais aux Canadiens. 

Cela signifie concrètement que, parmi l’ensemble des personnes qui, chaque année, 

entrent en contact avec une institution fédérale, des milliers de personnes se voient 

toujours privées des droits que leur confère la Loi sur les langues officielles 109 . 

Ce n’est certainement pas en privant les Canadiennes et les Canadiens de 

leur droit à des services gouvernementaux dans la langue officielle de leur choix 

que l’épanouissement et le développement de ces derniers seront favorisés. Une 

simplification du régime s’impose afin de le rendre plus cohérent et de permettre 

à toute personne voulant recevoir des services dans l’une ou l’autre des langues 

officielles d’y avoir accès. 

D’ailleurs, dans son rapport annuel 2005-2006, la Commissaire aux langues 

officielles du Canada avait recommandé au président du Conseil du Trésor qu’il 

« modernise le Règlement de façon à permettre aux Canadiennes et aux 

Canadiens de recevoir des services de qualité égale dans la langue officielle de leur 

choix » 110 . Selon la Commissaire, les principes directeurs qui devraient guider la 

rédaction d’une nouvelle règlementation en matière de langues officielles étaient 

le principe de l’égalité réelle 111 , le principe du caractère réparateur des droits 

linguistiques, la mise en œuvre cohérente et efficace de la loi, la simplicité et 

l’accessibilité 112 . Or, le gouvernement n’a pas donné suite à cette 

recommandation. Toutefois, en juin 2010, l’honorable sénatrice Maria Chaput – 

la première femme franco-manitobaine à siéger à la chambre haute – a déposé au 

Sénat du Canada le projet de loi S-220, Loi modifiant la Loi sur les langues officielles 

– communications avec le public et prestation des services 113 . Ce projet de loi émanant 

du Sénat « propose une mise à jour de la partie IV de la Loi sur les langues officielles 

afin de l’ajuster aux contextes démographique, sociolinguistique, judiciaire et 

législatif actuels, qui ont changé énormément depuis l’adoption de la loi en 

1988 » 114 . 

109 

110 

111 

112 

113 

114 

Commissariat aux langues officielles, Rapport annuel 2009-2010 : Au-delà des obligations, vol II à la 

p 12. 

Commissariat aux langues officielles, Rapport annuel 2005-2006, Ottawa, à la p 31. 

Ce qui est maintenant acquis, suivant la décision de la Cour suprême du Canada dans 

DesRochers, supra note 7. 

Commissariat aux langues officielles, Rapport annuel 2005-2006, Ottawa à la p 31. 

Débats du Sénat, 40 e lég, 3 e sess, vol 147 nº36 (9 juin 2010) en ligne : LEGISinfo 

. 

Bureau de la sénatrice Maria Chaput, Communiqué, « Dépôt du projet de loi S-220 au Sénat : 

après 22 ans, l’heure d’agir pour mettre à jour la Loi sur les langues officielles est arrivée » (9 juin 

2010), en ligne : Bureau de la sénatrice Maria Chaput


Le projet de loi S-220 propose quelques ajustements : 

[I]l assurera que la détermination de la demande importante soit balisée par des critères 

logiques, obligatoires, clairs, inclusifs et compatibles avec l’objet même de la loi ; […] il 

instaurera un mécanisme de révision du régime de communications et de prestation de 

services qui s’appliquera après chaque recensement décennal ; […] il garantira des services 

de qualité égale aux utilisateurs de l’une ou l’autre des langues officielles, en intégrant dans 

la loi ce principe reconnu par la Cour suprême du Canada ; [et] il visera à responsabiliser 

les décideurs en assurant que le public soit informé et consulté avant de soustraire un 

service ou une institution à l’application de la loi 115 . 

L’adoption d’un projet de loi comme S-220 provoquerait une révision du 

Règlement. En remplaçant le critère facultatif « de la population de la 

minorité » 116 avec le critère obligatoire « du nombre de personnes pouvant 

communiquer dans la langue de la minorité » 117 , en vue de déterminer les 

nombres suffisants de « francophones » requis pour justifier la prestation des 

services, un tel projet de loi, s’il devait être adopté, représenterait un virage vers 

un modèle plus inclusif. Cette modification aurait pour effet de s’assurer que 

la Loi sur les langues officielles tienne compte dorénavant de tous les utilisateurs qui 

choisiraient de se faire servir en français, sans distinction non fondée sur des 

principes. En d’autres mots, l’adoption d’un tel projet de loi aurait pour effet de 

réconcilier le cadre juridique applicable avec la réalité de la francophonie 

canadienne d’aujourd’hui, notamment en s’assurant de comptabiliser parmi la 

population francophone les enfants de couples exogames. 

Les modifications proposées par l’honorable sénatrice Chaput visent à 

remédier à plusieurs des lacunes du cadre juridique du régime fédéral de 

communications avec le public et de prestation des services. Selon elle : 

[I]l est impératif que le régime linguistique canadien tienne pleinement compte du 

caractère réparateur des droits linguistiques, de l’égalité réelle de nos deux langues 

officielles, de la réalité sociolinguistique du Canada d’aujourd’hui, ainsi que des pressions 

assimilatrices qui menacent nos communautés de langue officielle en situation 

minoritaire 118 . 

Le projet de loi S-220 semblait donc être la suite logique des plus récents 

développements jurisprudentiels 119 . 

Le Commissaire aux langues officielles du Canada a donné son appui aux 

objectifs et à l’approche retenue par le projet de loi S-220 en déclarant devant le 

Comité permanent des langues officielles de la Chambre des communes que « le 

115 

116 

117 

118 

119 

introduction-of-bill-s220-in-the-senate-after-22-years-the-time-has-come-to-update-the-officiallanguages-act-.html>. 

Débats du Sénat, 40 e lég, 3 e sess, vol 147 nº38 (15 juin 2010) en ligne : LEGISinfo 

. 

Loi sur les langues officielles, supra note 1 à l’al 32(2)a). 

PL S-220, supra note 11 à l’art.6. 

Débats du Sénat, supra note 115. 

Voir Desrochers, supra note 7.


projet de loi de la sénatrice Chaput est une initiative très importante. Elle touche 

notamment la difficulté que comporte une approche purement arithmétique face 

à la prestation de services dans les communautés de langue officielle en situation 

minoritaire. » 120 Par ailleurs, il est à noter que la substance du projet de loi S-220 

bénéficie d’un appui sans réserve de la part des vingt-deux (22) organismes 

membres de la FCFA, dont la Fédération des associations de juristes d’expression 

française de common law 121 . Selon la FCFA, cette initiative « est un très grand pas 

en avant pour nous ramener à l’intention première de la Loi sur les langues 

officielles, qui est l’égalité réelle du français et de l’anglais dans la société 

canadienne » 122 . Toutefois cette approche ne fait pas l’unanimité 123 . 

D’ailleurs, en juin 2010, le gouvernement fédéral a annoncé l’élimination du 

formulaire long de recensement 124 , en expliquant qu’il préférait s’en tenir à 

l’utilisation du seul formulaire court pour le recensement de 2011. Cette décision 

gouvernementale a provoqué une vive réaction au sein de l’opinion publique avec 

plusieurs intervenants se rangeant contre celle-ci 125 . Les impacts potentiels d’une 

telle décision sont nombreux 126 et touchent plusieurs domaines d’activités, 

notamment ceux se rapportant aux langues officielles. Concrètement, 

l’élimination du formulaire long de recensement, qui comportait plusieurs 

questions de nature linguistique et permettait donc de tracer un portrait 

linguistique fiable de la population canadienne, aurait empêché la mise en œuvre 

du Règlement. En effet, la méthode I de Statistique Canada requiert les données 

portant sur la connaissance des langues officielles et sur la langue parlée le plus 

souvent à la maison, qui étaient toutes les deux glanées à partir de questions 

contenues seulement dans le formulaire long de recensement. 

Une des questions constitutionnelles fondamentales qui a préoccupé le 

constituant en 1867 portait sur la « représentation effective » à la Chambre des 

Communes de chaque région du Canada, et un vote égal pour chaque citoyen. En 

vertu de l’article 8 et du paragraphe 51(1) de la Loi constitutionnelle de 1867, un 

recensement général, faisant énumération distincte des populations du Canada 

120 

121 

122 

123 

124 

125 

126 

Chambre des communes, Comité permanent des langues officielles, Témoignages, 40 e lég, 3 e sess, 

(4 novembre 2010). 

Fédération des communautés francophones et acadienne du Canada, Communiqué « 35 e 

assemblée générale de la FCFA : appui unanime au projet de loi de la sénatrice Chaput » (14 

juin 2010), en ligne : FCFA . 

Ibid. 

Voir discours de l’honorable sénateur Gerald J Comeau, Débats du Sénat, 40 e lég, 3 e sess, vol 147 

nº78 (14 décembre 2010) en ligne : LEGISinfo . 

(2010) Gaz C I, 1731. 

Voir par ex l’éditorial, « On Census, let’s hear from ‘ordinary’ Canadians », The Globe and Mail 

(17 août 2010). 

Voir par ex T. Grant, « Census changes to complicate central bank’s analyses, Carney says », The 

Globe and Mail (16 septembre 2010).


doit être effectué à tous les dix (10) ans 127 . Ainsi, les circonscriptions électorales 

doivent être découpées en tenant compte notamment des diversités linguistiques, 

géographiques, culturelles, politiques des provinces ainsi que de la grandeur de la 

population et des caractéristiques rurales et urbaines. Le recensement général du 

Canada doit faire la collecte de données fiables portant notamment sur les 

communautés de langue officielle en situation minoritaire, pour satisfaire au droit 

des Canadiennes et Canadiens à la représentation effective. 

Se fondant sur d’autres motifs, une demande de contrôle judiciaire a été 

présentée devant la Cour fédérale, soulevant l’illégalité de la décision 

gouvernementale d’éliminer la quasi-totalité des questions de nature linguistique 

du recensement 128 . Sans doute en réaction à ce recours judiciaire, le ministre 

responsable a annoncé l’intention du gouvernement d’inclure dans le formulaire 

court les deux questions de nature linguistique exclues 129 , requises pour dériver la 

variable pertinente suivant la méthode I de Statistique Canada, en plus de la 

question portant sur la langue maternelle qui y avait été maintenue 130 . Ce recul 

partiel du gouvernement fédéral assurera que l’exercice de révision, prévu au 

Règlement, aura lieu suite au recensement de 2011. Malheureusement, lors de ce 

recensement, Statistique Canada se sera abstenu de demander aux Canadiennes 

et aux Canadiens quelles langues ils utilisent au travail ainsi que quelles langues, 

autres que le français et l’anglais, ils connaissent assez bien pour soutenir une 

conversation 131 . Ces questions figuraient antérieurement au recensement. De ce 

fait, la fiabilité du portrait démo-linguistique du Canada sera quelque peu réduite. 

Bref, les connaissances reliées aux communautés de langue officielle seront 

appauvries. 

L’heure de revoir et de repenser le régime fédéral de communications et de 

prestation de services au public est arrivée. Depuis l’adoption de la nouvelle Loi 

sur les langues officielles en 1988, les contextes démographique, sociolinguistique, 

judiciaire et législatif ont tant changé : urbanisation, exogamie, avènement du 

droit au choix de sa langue officielle et nouvelle partie VII de la Loi sur les langues 

officielles. Ironiquement, le gouvernement fédéral semble s’intéresser davantage à 

masquer la réalité de la francophonie canadienne d’aujourd’hui 132 , plutôt 

127 

128 

129 

130 

131 

132 

Loi constitutionnelle de 1867 (R-U), 30&31 Vict, c 3, art 8. 

Fédération des communautés francophones et acadienne du Canada c Canada (Procureur général), 2010 

CF 999 (CanLII). 

Industrie Canada, Communiqué, « Déclaration du ministre de l’Industrie Tony Clement à 

propos des changements apportés au Recensement de la population de 2011» (11 août 2010), en 

ligne : Industrie Canada . 

(2010) Gaz C I, 2285. 

Ibid. 

Bureau de la sénatrice Maria Chaput, Communiqué, « L’Acadie désignée région unilingue 

anglophone : la sénatrice Maria Chaput est abasourdie » (10 mars 2011), en ligne : Bureau de la 

sénatrice Maria Chaput .


qu’adapter les outils à sa disposition – comme le Règlement – en vue d’appuyer 

réellement le développement et l’épanouissement des communautés de langue 

officielle. 

VI. 

CONCLUSION : UN RÈGLEMENT À RAJUSTER 

Selon son résumé d’étude d’impact, publié en 1991, « le Règlement est une 

expression concrète de l’engagement du gouvernement à appuyer le 

développement des minorités francophones et anglophones, engagement énoncé à 

la partie VII de la Loi sur les langues officielles. » 133 Il serait donc tout à fait conforme 

avec la jurisprudence et les principes d’interprétation des lois de soutenir que le 

régime fédéral de communications avec le public et de prestation des services 

devrait être conçu suivant les exigences de la partie VII de la Loi sur les langues 

officielles et, plus spécifiquement, en considérant la spécificité de la communauté à 

desservir, notamment la vitalité institutionnelle de cette dernière. Les résultats de 

la partie IV de la Loi sur les langues officielles – c’est-à-dire la mesure dans laquelle le 

régime favorise l’épanouissement et le développement des communautés de 

langue officielle – seraient donc évalués en fonction des circonstances factuelles 

pertinentes 134 , en vertu de la partie VII. 

Le Règlement tel que rédigé est très complexe et prévoit des règles pour tous 

genres de services comme l’immigration, le trafic maritime, et le sauvetage en mer. 

L’approche ne semble toutefois pas être clairement appuyée par des principes 

directeurs identifiables. Afin de s’assurer de rejoindre la clientèle potentielle 

entière il serait souhaitable que les communications et les services fédéraux soient 

offerts dans les deux langues officielles à toute personne capable de communiquer 

dans ces langues, sans égard à leur sentiment d’appartenance, origines ethniques 

ou utilisation de ces langues au foyer ou au travail. Il est illogique qu’aux termes 

du régime actuel, des enfants de parents ayant des droits au sens de l’article 23 de 

la Charte puissent bénéficier d’institutions éducatives de langue minoritaire mais 

pas de services fédéraux dans cette même langue. Une définition véritablement 

inclusive de la francophonie se fait attendre et devrait servir de principe directeur 

lors d’une réforme éventuelle du Règlement. 

Aussi, le critère de la spécificité des communautés minoritaires, prévu 

timidement par le législateur à l’alinéa 32(2)a) de la Loi sur les langues officielles, 

n’aurait pas dû être mis de côté dans la mise en œuvre de la partie IV de la Loi sur 

les langues officielles. Cette dimension qualitative devrait être considérée et 

respecterait donc les obligations de la partie VII de la Loi sur les langues officielles ; 

c’est là qu’il est question de la considération des besoins de la communauté à 

desservir. L’on devrait tenir compte de la nature des services et de l’impact sur la 

133 

134 

Supra note 101, 1060. 

Picard c Canada (Office de la propriété intellectuelle), 2010 CF 86 (CanLII) au para 68.


communauté. Plus encore, la Loi sur les langues officielles devrait élargir le cadre de 

référence en établissant une discrétion ministérielle pour promouvoir l’usage de la 

langue minoritaire afin de revitaliser les communautés les plus vulnérables. 

La présence d’institutions religieuses, sociales, culturelles, d’enseignement, et 

autres, dans les communautés de langue officielle en situation minoritaire, permet 

très souvent de mesurer avec justesse la vitalité de cette dernière, même lorsque les 

chiffres semblent indiquer autrement. Le législateur a bien compris ceci en 1988 

en précisant que la spécificité de la communauté minoritaire devrait figurer parmi 

les critères servant à déterminer l’existence de la demande importante. Toutefois, 

ce critère facultatif est resté lettre morte, et ce, au détriment des communautés. 

Une révision du Règlement s’impose et celle-ci devrait rectifier cette lacune en 

transformant ce critère facultatif en principe directeur obligatoire. 

Par ailleurs, ne serait-il pas tout à fait logique que le gouvernement fédéral 

s’ajuste à la situation des provinces et territoires qui auraient donné un accès plus 

grand que celui que prévoit la législation fédérale en offrant un service aussi 

étendu, par exemple dans tous les bureaux fédéraux situés dans une région 

ontarienne désignée en vertu de la Loi sur les services en français 135 ou desservant 

l’une de ces régions 

Le sentiment d’appartenance, les origines ethniques et l’utilisation d’une 

langue officielle au foyer ou au travail sont des considérations qui n’ont pas leur 

place au sein d’un régime fédéral de communications et de prestations des services 

qui se veut véritablement inclusif et équitable. Celui-ci devrait plutôt s’appuyer sur 

la capacité du public canadien à communiquer dans les langues officielles ainsi 

que sur la spécificité des communautés de langue officielle. En sus, le 

développement et l’épanouissement de ces communautés devront être au cœur 

même de toute réforme éventuelle ; leur survie l’exige. 

135 

Voir l’annexe de la Loi sur les services en français, supra note 23.

Unsettled Estates: Manitoba’s Forgotten Statute 

and the Chupryk Case 

J O H N I R V I N E * 

I. 

INTRODUCTION 

T 

his short note is intended as the first of three interconnected pieces of 

varying lengths, two of which appear in this issue. They will cover 

significant and supposedly discrete areas of the law of real property, from 

the rules governing settled land and successive estates to those governing the 

partition and sale of concurrently shared interests; from the statutory rules 

conferring powers upon trustees to facilitate dealings with trust property, to the 

implications of Manitoba’s unique Perpetuities and Accumulations Act. Given the 

wide-ranging nature of this ramshackle enterprise, I hope the reader will 

understand why I have divided it into three parts; and forgive me, at the same 

time, for the measure of repetition which is inescapably required by such an 

exercise. 

It is quite permissible to regard at least the first two of these pieces as an 

analysis or critique of the Manitoba Court of Appeal’s well-known judgment in 

Chupryk v Haykowski, 1 decided in 1980 and nowadays featured, uncritically and 

apparently with equanimity, in leading Canadian texts on real property law. 2 In 

consequence, Chupryk is likely to have strong influence on the developing 

Canadian jurisprudence in various contexts and upon the thinking of law 

students. It is my conviction that the Court’s reasoning in Chupryk is profoundly 

defective, and in some degree based upon a false perception of the law, that has 

prompted me to offer these rather protracted reflections. In this first essay, I 

consider the Canadian law of “settled estates”, with particular reference to 

Manitoba. 

* 

1 

2 

Professor, Faculty of Law, University of Manitoba. Member, Manitoba Law Reform Commission. 

(1980), 110 DLR (3d) 108, 3 Man R (2d) 216, [1980] 4 WWR 534; leave to appeal further to 

MBCA denied, (1980) 110 DLR (3d) 108n [Freedman CJM]; leave to appeal to SCC granted 

(1980) 33 NR 622 (SCC). 

See, for example, Albert H Oosterhoff and Wesley B Rayner, eds, Anger & Honsberger Law of Real 

Property, 2d ed (Aurora, Ont: Canada Law Book, 1985) p 701-702 or Derek Mendes da Costa, 

Richard J Balfour & Eileen E Gillese, Property Law – Cases, Text and Materials, 2d ed (Toronto, 

Ont: Emond Montgomery Publications, 1990), s 14:8 and 18:63-64.


My modest aim in this first essay is principally to set straight a flaw in 

Manitoba’s historical record. In doing so, I am aware that I am addressing legal 

issues which are on the point of fading into history and near-oblivion, as newer 

methods are adopted for making provision for the successive enjoyment of family 

real estate. The old “strict settlement”, if not yet dead, is now a rare survival, and 

the settled estate and settled land legislation of the nineteenth century is of 

vestigial importance compared with the trust-based arrangements that have 

supplanted them, and which have attracted their own patina of statutory 

mechanisms. But the very obsolescence of old-fashioned strict settlements means 

that few if any opportunities will present themselves for the judiciary to correct 

misconceptions which it has created, and that is particularly so in Manitoba, 

where the passing of the Perpetuities and Accumulations Act in 1982 makes it 

impossible to imagine any future circumstance in which successive estates may 

exist otherwise than under the aegis of a trust. The short note which follows, 

then, is designed to show how the Manitoba Court of Appeal, in the case of 

Chupryk v Haykowski, misrepresented the Manitoba law of settled estates by 

ignoring or suppressing the existence of the English Settled Estates Act of 1856 as 

part of this province’s law; and how, in so doing, they obliquely sought to justify a 

unique, and I believe a misguided interpretation of another provincial statute – 

the partition-and-sale provisions of the Law of Property Act – to achieve the Court’s 

preferred outcome in the Chupryk case. 

II. 

THE CHUPRYK CASE 

The facts in Chupryk may be briefly stated. On the death of his wife, Michael 

Chupryk found himself (or so the Court determined) the life tenant of a 

dilapidated and deteriorating property; he was also the holder of a one-third share 

in the remainder interest, the other two-thirds being vested in Sophie Haykowski, 

Mr. Chupryk’s god-daughter and relative by marriage. Initially, this arrangement 

subsisted under a trust, but the trustee (Mrs. Haykowski’s son) improperly 

extinguished the trust by transferring the legal title into the names of Mr. 

Chupryk and Mrs. Haykowski. Both were elderly and in poor health. Yet despite 

this, old Michael Chupryk, who lived in a small cottage at the rear of the property, 

saw potential for improving the value of the entire inheritance. He felt that if he 

could raise a modest amount of capital – four or five thousand dollars, he 

thought, should do the job – he would be able to restore the decrepit roominghouses 

which fronted the property (and were currently unfit for habitation), and 

thereby arrest the process of deterioration while securing a small income from the 

land. Mrs. Haykowski, the principal remainderperson, was of another mind. She 

wanted the entire freehold to be sold as quickly as possible, so that she could 

secure her share of the proceeds.

Unsettled Estates 51 

The parties’ ambitions, therefore, were flatly contradictory, and when 

Michael Chupryk sought a court order authorizing him, as life tenant, to 

mortgage the fee simple, Sophie Haykowski countered by seeking an order for its 

sale. All would have been relatively straightforward, and this contest of wills might 

have been directly adjudicated on its merits, had the trust still been in existence, 

and the property still “vested in trustees,” for s 58(1) of the Trustee Act 

unequivocally authorized the Court of Queen’s Bench in such circumstances to 

confer on the trustees the power necessary to effect the transaction, “whether a 

sale, lease, mortgage... or other disposition,” provided only that it was deemed 

“expedient” by the Court. 

The problem was that the trust was no longer in existence, and although 

Kroft J at first instance 3 showed great ingenuity and determination in asserting 

that it could and should be resurrected and reconstituted, the Court of Appeal 

took the contrary view. The trust, they said, was destroyed beyond recall, and 

access to the powers under s 58 accordingly barred. Nor, said the Court of 

Appeal, did it have any “inherent jurisdiction” as a court of equity to grant to 

either litigant the orders they respectively sought. 

Truth to tell, the Court of Appeal in Chupryk made no effort to conceal its 

own agenda. It had concluded that after six years of litigation, the dispute 

between these two elderly people should be brought to an end, and the long 

deterioration of the property checked, by the prompt sale of the land, even 

though this meant the ouster of Mr. Chupryk, now 87 years old, from the cottage 

which had for decades been his and his late wife’s home. The Court found little 

difficulty in rejecting any plausible argument which might enable them to order 

the mortgage which Mr. Chupryk wanted. Without expressly saying so, they 

clearly regarded his restoration plans as impractical and unrealistic, but preferred 

to stress in their reasons the absence of any statutory mechanism (once the trust 

was extinguished) to enable the authorization of a mortgage. There was, they said, 

no Settled Land Act in Manitoba. That assertion will be critically examined below. 

Why, at that stage, the Court did not simply dismiss both actions, is a good 

question. The argument that is was confronted by a wasting asset seems plausible, 

until one considers that the property had been valued seven years previously at 

about $13 000, and could hardly be thought to have increased in value since that 

time. It might, indeed be thought to have depreciated to an irreducible minimum, 

at which “wasting” would scarcely be an issue. It was asserted by the Court that 

the parties were now mutually prepared to acquiesce in a sale, but one wonders 

how genuine this consensus could be on the part of Mr. Chupryk, who faced, at 

his advanced age, the loss of his home. 4 If the alleged rapprochement were genuine, 

3 

4 

Chupryk v Haykowski, (1979) 3 Man R (2d) 238 (QB). 

It may be noted that Mr. Chupryk did not surrender passively to the Court of Appeal’s order, 

but twice sought leave to appeal further, unsuccessfully to the Court of Appeal itself (supra note 

1, 110 DLR (3d) 108n), then again (successfully this time) to a panel of the Supreme Court of


surely the sale could have been arrived at by mutual agreement without a court 

order. As it transpired, the Court was determined to end the dispute by a formal 

order for sale, and showed itself capable of paying a high price, in terms of 

disrupting the law of concurrent ownership as long understood, 5 to bring about 

that result. In hindsight, some would suggest that the Court might more 

humanely have refused both combatants the orders they sought, and left it to 

Death to bring an end to their quarrels. 

All the foregoing, though not I hope without interest, is straightforward 

enough. It is when we come to examine how the Court of Appeal, having 

declined to authorize a mortgage for Mr. Chupryk, justified the order for sale, 

sought by Mrs. Haykowski, that the real anfractuosities of the Court’s reasoning 

come to the fore. 

III. 

THE SEEDS OF CONFUSION 

In concluding that the powers conferred by the Trustee Act 6 were no longer 

available to it in the circumstances, the Court had denied to itself not only the 

ability to authorize Mr. Chupryk’s mortgage, which in truth it had no desire to 

do; but also the most obvious and direct basis for granting Mrs. Haykowski’s 

order of sale. Casting about for some juridical basis for making such an order, and 

avowedly renouncing 7 any temptation to administer “palm tree justice”, their eyes 

turned to the possibility that use might be made of what they termed the “Settled 

Lands Acts”. In the end, they determined that they could not do so, but their 

efforts in this context were to my mind unfortunate, and have generated 

misconceptions which still persist. 

Towards the close of his concurring judgment in Chupryk, O’Sullivan JA 

wrote these words: 

There is no doubt that the inability of a tenant for life to raise money for improvements 

may work a hardship, not only on the tenant for life, but also on the remainderman and, 

in some cases, others. No one can benefit from a situation where property is allowed to 

deteriorate and run down. In England, this problem has been dealt with in a series of 

statutes. The Settled Lands Acts recognize land held in succession as settled land and 

authorize the tenant in possession to raise money for improvements, sometimes on his own 

authority and sometimes with the approval of the court. Ontario and British Columbia 

have enacted Settled Lands Acts to achieve the same purpose, but Manitoba has no Settled 

5 

6 

7 

Canada (supra note 1, (1980) 33 NR 622 (Martland, Ritchie and Estey JJ) and see Supreme Court 

of Canada, Bulletin of Proceedings of the Supreme Court of Canada, Oct 10 1980 (Ottawa: SCC, 

1980), p 31). This proved to be the end of the saga, for after this final but hollow victory for 

Michael Chupryk, which seems largely to have escaped notice in the textbooks, his litigation 

career goes “off the radar”. 

See the article “A House Divided, etc”, presented later in this volume of the journal. 

The Trustee Act, CCSM c T160, s 58 (1) [then s 60 (1)]. 

Supra note 1 at para 58.


Lands Act. This does not mean that in Manitoba there is no relief for a tenant who cannot 

economically sustain a life interest. I agree with my brother Matas that the Law of Property 

Act, CCSM, c L90, covers successive interests, as well as concurrent interests, in land. 8 

There are mysteries here, and arguably misapprehensions too. Why, one 

wonders, is O’Sullivan JA (and Matas JA too) so preoccupied with the English 

Settled Lands (sic) Acts Was it merely a gesture of respect to the argument of Mr. 

Green, counsel for Mr. Chupryk, who had somehow incorporated in his 

argument reasoning founded on the English Settled Land Act of 1882 9 Perhaps 

counsel intended, by adverting to this imaginative and bold piece of English 

legislation, to incite the Court of Appeal to craft (as Kroft J had done in the 

Court below) an equally progressive solution in Manitoba, by judicial fiat If so, 

he was to be disappointed as I have already explained. What in fact the Court of 

Appeal did was to turn the absence of the 1882 legislation in Manitoba into a 

more sweeping assertion – that “Manitoba has no Settled Lands 10 Act” – and 

present that assertion in such a way as to imply that Manitoba was in some way 

uniquely disadvantaged by this lacuna in its statute-book. It is my position in this 

paper that any such assertions are demonstrably wrong. 

IV. 

SETTLED ESTATES AND SETTLED LAND 

When O’Sullivan JA states, in the above-quoted passage, that “Manitoba has 

no Settled Lands Act,” his words are literally true. Manitoba has never had a statute 

of that name. Nor has any other Canadian province, so far as I am aware. The 

English statutes bearing that title – both the Settled Land Act of 1882, and the 

climactic Settled Land Act of 1925 11 – have been the object of sometimes wistful 

academic commentary in Canada, but have never been fully adopted in any 

Canadian jurisdiction. As Professor Waters put it, “The Settled Land Acts of 1882 

and 1925 in England never came to Canada.” 12 So Manitoba is hardly unique in 

not having a statute by that name. However, O’Sullivan JA’s assertion, in the same 

sentence, that Ontario and British Columbia “have enacted Settled Lands Acts” 

throws some light on what he is really trying to say. So do his perceptions, 

expressed in that same paragraph, as to what a proper “Settled Land Act” does, 

what its functions are. It seems that when O’Sullivan JA refers to “Settled Land” 

legislation, he is using the expression in a loose or generic sense, rather than as a 

more meticulously historic (or more pedantic) commentator might do. He is, it 

seems, using the “Settled Land Act” label to embrace a whole procession of 

8 

9 

10 

11 

12 

Ibid at para 60. 

Settled Land Act, 1882 (UK), 45 & 46 Vict, c 38. 

More properly termed a “Settled Land Act”. 

Settled Land Act, 1925 (UK), 15 & 16 Geo V, c 18. 

Donovan Waters, Mark Gillen and Lionel Smith, Waters’ Law of Trusts in Canada, 3d ed 

(Toronto, Ont: Thomson Carswell, 2005) at p 1087.


enactments, including not only the statutes which from 1882 onwards bore that 

name in England, but the procession of more modest enactments which 

proceeded and heralded them, and bore the name “Settled Estates Acts.” 

If that is indeed O’Sullivan JA’s position – that for practical purposes, the 

English legislation can be regarded as an unevenly-paced but consistent 

progression, gradually extending the powers of disposal affecting settled land – it 

is a perfectly coherent and tenable perspective upon the law. But if, taking this 

inclusive view of what “Settled Land Acts” means, he still says that Manitoba has 

none, he is simply wrong, as I shall show presently. 

A different, but less disturbing criticism that might be leveled at his analysis is 

simply that in its “lumping together” of Settled Estates Acts and Settled Land 

Acts, it conceals more than it reveals. For purists, as they might term themselves, 

would certainly insist that despite their superficial similarities of name and 

function, there is a gulf between them in terms of the social and political theory 

which underlies them. This is not the place to examine the political struggle 

which attended the introduction of the first Settled Land Act in 1882, but it was 

regarded at the time as little short of revolutionary. Sir Arthur Underhill, writing 

in 1909 and reminiscing about the evolution of the land law over the previous 

hundred years, called it “This great Act, the greatest Real Property Act, I think, of 

the Century.” 13 I propose in my third and last article in this series, in a 

forthcoming volume of the journal, to revive and re-examine the social exigencies 

which gave rise to the debate, and its influence on the law’s entire conception of 

what “ownership” of land means, and should mean, in the context of limited 

estate-holding. It seems to me that the arguments then in play may be of interest 

again in light of the new era of real property law quietly, almost covertly ushered 

in by s 4 of Manitoba’s Perpetuities and Accumulations Act in 1982. 14 But that, as I 

say, is a task for another day. For present purposes, it is enough to know in a 

general way how the underlying philosophy of the Settled Land Acts, beginning in 

1882, differed from that of the Settled Estates Acts which preceded them. That may 

be achieved by considering the observations of two great Victorian judges. First, 

there is the judgment of Chitty LJ and of Lindley MR, commenting on the 1882 

legislation, in Re Mundy and Roper’s Contract in 1899: 

The object is to render land a marketable article, notwithstanding the settlement. Its main 

purpose is the welfare of the land itself, and of all interested therein, including the tenants, 

and not merely of the persons taking under the settlement. The Act of 1882 had a much 

wider scope than the Settled Estates Acts. The scheme adopted is to facilitate the striking off 

from the land of the fetters imposed by settlement; and this is accomplished by conferring 

13 

14 

Sir Arthur Underhill, “Changes in the English Law of Real Property During the Nineteenth 

Century” reprinted in Committee of the Association of American Law Schools, ed, Select Essays 

in Anglo-American Legal History, vol 3 (Boston, Mass: Little, Brown and Company, 1909) 673 at 

681. 

SM 1982-3-4, c 43, RSM 1987, c P-325.


on tenants for life in possession, and others considered to stand in a like relation to the 

land, large powers of dealing with the land by way of sale, exchange, lease, and otherwise, 

and by jealously guarding those powers from attempts to defeat them or to hamper their 

exercise. At the same time the rights of persons claiming under the settlement are carefully 

preserved in the case of a sale by shifting the settlement from the land to the purchasemoney 

which has to be paid into court or into the hands of trustees. The Act of 1882 and 

the subsequent Acts ought, then, to be construed by the Court with regard to these broad 

principles and in a spirit of wise and reasonable liberality. 15 

To the same effect, and inferred, one may fancy, with a sly hint of 

triumphalism in the aftermath of a hard-fought struggle, are the words of Lord 

Macnaghten in Lord Henry Bruce v Marquis of Ailesbury in 1892: 

The Act of 1882 differs from all previous legislation in regard to settled land. It proceeds 

on different lines, and it has a different object in view. The Settled Estates Acts did not 

confer or enable the Court to confer on a limited owner powers beyond those ordinarily 

inserted in a well-drawn settlement. They were no doubt very useful Acts in their way. An 

application to the Court at a moderate cost was made to serve the purposes of a private 

estate Act. But the Settled Land Act was founded upon a broader policy and has a larger 

scope. A period of agricultural depression, which shewed no sign of abatement, had given 

rise to a popular outcry against settlements. The problem was how to relieve settled land 

from the mischief which strict settlements undoubtedly did in some cases produce, without 

doing away altogether with the power of bringing land into settlement. That was something 

very different from the task to which Parliament addressed itself in framing the Settled 

Estates Acts. In those Acts the Legislature did not look beyond the interests of the persons 

entitled under the settlement. In the Settled Land Act the paramount object of the 

Legislature was the well-being of settled land. The interests of the persons entitled under 

the settlement are protected by the Act as far as it was possible to protect them. They must 

be duly considered by the trustees or by the Court whenever the trustees or the Court may 

be called upon to act. But it is evident I think that the Legislature did not intend that the 

main purpose of the Act should be frustrated by too nice a regard for those interests. 16 

No Canadian jurisdiction has adopted a “Settled Land Act” as here 

understood, though some may have effected changes in the parallel universe of 

trusts law which have in practice brought about many of the same effects. 

Manitoba is not singularly bereft, then, in lacking a Settled Land Act in this 

technical sense. But in his assertion that Manitoba has no Settled Land Act in the 

broad, loose or inclusionary sense apparently used by O’Sullivan JA in Chupryk, 

his Lordship falls into error: for Manitoba has had, since the date of its 

enactment; still had in 1980 when Chupryk was decided, and I believe has still (for 

what it is worth), the Settled Estates Act, 1856. 17 We shall consider it presently. 

For present purposes, we should note that in the passage quoted earlier 18 

from his judgment, O’Sullivan JA obviously conflates the Settled Estates Acts and 

the Settled Land Acts; and confirms this impression by noting that “both Ontario 

15 

16 

17 

18 

Re Mundy and Roper’s Contract (1898), [1899] 1 Ch 275 UKCA at 288. 

Lord Henry Bruce (A Child) v Marquis of Ailesbury ([1892] AC 356 HL (Eng) at 364-5. 

Settled Estates Act, 1856, (UK) 19 & 20 Vict c 120. 

Supra note 8.


and British Columbia have enacted Settled Lands Acts,” without alluding to the 

fact that the two statutes in question bore the respective titles of “the Settled 

Estates Act 19 and “the Land (Settled Estate) Act”. 20 In the same breath, O’Sullivan JA 

then muses “But Manitoba has no Settled Lands Act.” Not only is this wrong, if we 

accord to that label the inclusive meaning which the learned judge himself 

accords to it; but it created a false impression by inference, 21 that unlike other, 

happier and more progressive jurisdictions, that there is (or was) in Manitoba a 

total void, just where a Manitoba Settled Lands Act ought to be. 

In truth, the Court’s rather strange fixation with the supposedly more 

“advanced” legislation of other jurisdictions becomes all the more puzzling when 

one reflects that few if any of them 22 would have been of the slightest use to either 

of the litigants in the Chupryk case itself. The great English Settled Land Act 23 of 

1882, in particular, on which Matas JA lavished considerable attention, contained 

nothing which might have advanced the claims of Mr. Chupryk, for while it did 

confer powers upon life tenants to mortgage the fee simple without judicial 

approval, 24 those powers could only be used for a specific range of purposes, in no 

way germane to Mr. Chupryk’s improvement plans. And no powers of disposition 

whatever, with or without the Court’s approval, were conferred on 

remainderpersons like Mrs. Haykowski. 

An effort will now be made to give a more accurate picture of the statute law 

governing settled estates in Manitoba, as it stood at the time of the Chupryk case. 

Let me begin by introducing that most neglected of statutes, the Settled Estates Act 

of 1856. 

19 

20 

21 

22 

23 

24 

RSO 1980, c 468. 

RSBC 1979, c 215. 

And this is precisely the inference drawn from Re Chupryk in the textbooks. Thus Anger & 

Honsberger, supra note 2 at 701, declares flatly that “In Manitoba there is no settled estates 

legislation”; Waters’ Law of Trusts in Canada, supra note 12, at 1088 n 25 explains Chupryk as a 

case where “The absence of settled land legislation in other provinces occasionally causes 

difficulty”, and repeats this inference of a complete legislative void later, at 1306 n 86. 

Except perhaps Ontario’s Settled Estates Act, had it been adopted in Manitoba – see s 13(1)(a) of 

that statute (supra note 19), which was first adopted as long ago as 1895 (Settled Estates Act, SO 

1895, c 20, s 15) and does authorize mortgages, if the Court consents, to effect improvements or 

repairs. 

Supra note 9. 

Ibid at s 18. The mortgaging power was slightly expanded by the Settled Land Act of 1890, but 

would still not afford any relief to a life tenant who merely wished to raise money for 

improvements. No such powers as that sought by Mr. Chupryk can be found in any of the 

Settled Estates/Settled Land legislation until the advent of s 71 of the great Settled Land Act, 

1925, supra note 11. Except, that is, in Ontario, as mentioned supra note 22.


V. 

THE SETTLED ESTATES ACT, 1856 25 

The history of the English Settled Estates and Settled Land Acts, from early 

Victorian times down to the present day, has often been told, and told well, in the 

English textbooks, so only a brief précis will be presented here. 26 A long line of 

statutes can be traced in the English statute-book, each dealing in some measure 

with the very dilemma succinctly stated by O’Sullivan JA in the passage of his 

Chupryk judgment which I have already quoted. 27 A life tenant in possession of 

settled land might perceive that the time was ripe for capital improvements to be 

made, or urgent repairs effected, in the interests of everyone concerned – not just 

his own, but those of the remainderman, too, not to mention mortgagees and 

“posterity.” But even if he had the necessary financial means to effect the 

improvements out of his own pocket, there would often be little incentive to do 

so, if he reflected on the transience of his own estate. The obvious solution, if the 

remainderman could be persuaded to cooperate, would be to raise money upon a 

mortgage of the title. But in the absence of such concurrence, the only precarious 

and unattractive security that the life tenant could offer was his own life estate. So 

the practice developed, at an early date, of incorporating into settlements express 

special powers, conferred by the settlor upon the life tenant, to mortgage the 

whole fee simple estate – even over the objections of the remainderperson, who 

would be bound by that mortgage. 

Unfortunately, whether by lack of foresight, poor advice, or even by design, 

settlors sometimes omitted to provide such powers: yet in such cases the desire or 

need to raise capital to improve the property might be every bit as pressing, and 

the public interest clearly favoured the encouragement of capital improvements 

and responsible land-maintenance. 

That is how the development of Settled Lands legislation began. At the start, 

there were instances of private or local Acts of Parliament being engaged as 

desperate and expensive solutions to these problems. 28 Legislative intervention 

25 

26 

27 

28 

Supra note 17. 

In my third article in this series, I shall hope to return to this phase of legal history, and to the 

arguments of policy which animated it: arguments which still have resonance in the present day, 

especially, I shall argue, in the aftermath of Manitoba’s Perpetuities and Accumulations Act of 1983. 

Supra note 8. 

See Underhill, supra note 13. It should not be supposed that such private statutes were rare. In 

the masterly account offered by William Cornish et al in the new The Oxford History of the Laws of 

England, vol 12 (Oxford, England: Oxford University Press, 2010) at 83. We learn that for 

decades, such applications to Parliament “usually numbered about a dozen a year” from 1830 

onwards, but “spiked” in 1853-4. The 1856 Act was introduced expressly to obviate the need for 

such extreme expedients, and can be regarded as “essentially a transfer of jurisdiction” from 

Parliament to Chancery.


became a matter of urgency. At first, we find statutes of specific or determinate 

purpose, namely the so-called Drainage Acts 29 of 1840 and 1845. 

It was in 1856 that the first English Settled Estates Act was passed; 30 the first of 

a series of statutes 31 which culminated in the great Settled Land Act of 1925. 32 The 

1856 act is of great importance to this paper in a way in which its more elaborate 

and ambitious successors are not. It requires our attention precisely because it was 

at all times since its enactment, at all times material to our present inquiry – 

notably when Chupryk was before the courts – and in my view still is, part of the 

law of Manitoba, as well as that of some other provinces. 33 Let me now justify 

these assertions. 

I would contend first that the 1856 Act is part of Manitoba law by reason of 

the fundamental rules governing the reception of English statutes in the settled 

colonies. Those rules as laid out by Blackstone, were explained and applied by the 

Manitoba Court of Appeal itself in Meanwell v Meanwell in 1941, 34 but the fullest 

and clearest analysis of the doctrine of reception, both as to statute and judgemade 

law is surely that of Mr. Jean Côté, as he then was, in his justly-famous 

articles in the Alberta Law Review, in 1964 and 1977 respectively. 35 It would be 

pointless to summarize or paraphrase those principles here, beyond observing that 

in the Saskatchewan case of Re Moffatt Estate 36 in 1955, McKercher J of that 

province’s Court of Queen’s Bench found that since it was “reasonably applicable 

to the situation existing in Saskatchewan,” the English Settled Estates Act of 1856 

should be considered to be part of that province’s laws – perhaps since it received 

the Royal Assent in England, but at the very latest since 15 th July 1870, the date 

29 

30 

31 

32 

33 

34 

35 

36 

Respectively, An Act to Enable the Owners of Settled Estates to Defray the Expence of Draining the 

Same, by Way of Mortgage, (UK) 3 & 4 Vict c 55; and An Act to Alter and Amend 3 & 4 Vict c 55, 

(UK) 8 & 9 Vict c 56. The more ambitious Improvement of Land Act, 1864 (UK) 27 & 28 Vict c 

114 advanced the same course by authorizing limited owners to raise money upon mortgages of 

the fee simple for other agrarian purposes including the enclosure of fields, the building of farm 

buildings and labourers’ cottages, shelter planting, and land clearance, but being dependent 

upon the consent of the Enclosure Commissioners (and an attendant bureaucracy) these reforms 

were clearly unsuited for reception in jurisdictions outside the United Kingdom: and this Act 

can therefore be disregarded for our present purposes. It may, however, help to explain why 

neither the Settled Estates Acts nor the Settled Land Acts conferred any general or plenary 

privilege on life tenants to mortgage the fee simple. 


The others were the Settled Estates Act 1858 (UK), 21 & 22 Vict c 77); the Settled Estates Act 1864 

(UK), 27 & 28 Vict c 45; the Leases & Sales of Settled Estates Act, 1874 (UK), 37 & 38 Vict c 33; 

the Settled Estates Act, 1877 (UK), 40 & 41 Vict c 18; and the Settled Land Act, 1882, supra note 9. 


Specifically, Saskatchewan and Alberta. See Bruce H Ziff, Principles of Property Law, 5th ed 

(Toronto, Ontario: Carswell, 2010) at 185, esp n 103-4. 

[1941] 1 WWR 474, 49 Man R 26. 

“The Introduction of English Law into Alberta”, (1964) 3:2 Alta LR 262, and “The Reception of 

English Law” (1977) 15 Alta LR 29. 

(1955) 16 WWR (2d) 314.


fixed officially as the “cut-off” date for the reception of English law by the North- 

West Territories Act of the Dominion, in 1886. Since the history of Manitoba is so 

closely similar to that of Saskatchewan, the conditions of society in each province 

at any conceivable relevant date 37 so closely similar, and the legislated “cut-off” 

date for reception identical in both provinces, 38 it would be hard to deny that the 

ordinary processes of reception made the England Settled Estates Act of 1856 part 

of Manitoba Law. 39 

The opening provisions of s 1 of Manitoba’s first Queen’s Bench Act, in 1874, 

surely fortify this conclusion, confirming that: 

The Court of Queen’s Bench in Manitoba shall decide and determine all matters of 

controversy relative to property and civil rights, according to the laws existing, or 

established and being in England, as such were, existed and stood, on the fifteenth day of 

July, one thousand eight hundred and seventy, so far as the same can be made applicable to 

matters relating to property and civil rights in this Province. 

These provisions, only lightly pruned and still compassed about by 

extraneous verbiage of no relevance for our present purposes, are still on the 

Manitoba statute-book, as s 33(1) of the present Queen’s Bench Act. 40 They were of 

course there in 1980, too, 41 when the Court of Appeal decided Chupryk. Indeed, 

O’Sullivan JA expressly noted this very section, 42 and correctly reflected that the 

English law of 1870 conferred no mechanism allowing a common law life tenant 

to grant a mortgage of the fee simple. Had his Lordship allowed his eye to wander 

to the opposite page, however, he would have seen this provision, which would 

surely have given him food for thought on the other aspects of the case: 

Leases and sales of settled estates, etc. 

55(1) The court has the same jurisdiction as the Court of Chancery had in England, on the 

fifteenth day of July in the year 1870, in regard to leases and sales of settled estates, and in 

regard to enabling infants, with the approbation of the court, to make binding settlements 

of their real and personal estate on marriage, and in regard to questions submitted for the 

opinion of the court in the form of special cases on the part of such persons as may by 

themselves, their committees or guardians, or otherwise, concur therein. 43 

This section had been on the Manitoba statute-book since its enactment as s 

33 of the Queen’s Bench Act, 1895. 44 It was an avowed “borrowing” from the 

37 

38 

39 

40 

41 

42 

43 

44 

See Côté, (1977), supra note 35 at 79. 

In Manitoba, set by the Queen’s Bench Act, SM 1874, c 12, s 1. 

Or at least those parts of it which were applicable. 

CCSM c C280, s 33(1). 

At that time, the provisions were in s 51(3) of the Queen’s Bench Act, RSM 1970, c C280. 

Supra note 1 at para 58. 

Supra note 41 at s 55 (1). 

SM 1895, c 6. When the Statutes of Manitoba, newly translated into French, and rigorously 

overhauled and purged of anachronisms and perceived anomalies, re-appeared as the Re-Enacted 

Statutes of Manitoba, 1987, it was still there as s 51(1) of RSM 1987, c 280. But when the Queen’s 

Bench Act underwent yet another revision in the following year, and was essentially replaced by


Ontario Judicature Acts, which had themselves carried it forward from Ontario’s 

old Court of Chancery Acts. Whether or not any of the enactments in this 

formidable lineage ever received judicial attention either in Ontario or Manitoba, 

I do not know. I doubt it, for its terms – at least those relevant to our present 

inquiry – are quite unequivocal. The superior courts of both provinces were 

endowed – since 1865 in Ontario, since 1895 in Manitoba – with the same 

powers, in regard to leases and sales of settled estates as the Court of Chancery in 

England had enjoyed on specified dates (18 th March 1865 in Ontario; 15 th July, 

1870 in Manitoba). 

The law governing the leases and sales of settled estates in the English Court 

of Chancery, on both those dates, was of course encapsulated in the English 

Settled Estates Act, 1856. 

I have perhaps laboured too ponderously to convince the reader that this 

1856 Act long ago became part of Manitoba law. The general rules of reception 

are fortified by the general statutory provisions which, as we have seen, fix an 

“official” cut-off-date for statutory reception; and if that is not considered 

sufficiently conclusive, the 1895 amendment of the Queen’s Bench Act confirms 

the obvious with focus and precision. 

Noting that the 1856 Act has nonetheless never been welcomed into the 

limelight in Manitoba by any judicial utterance, favourable or otherwise, should 

we be dismayed or surprised that it has survived so long in the shade Professor 

Bruce Ziff, in his valuable textbook, 45 seems to find it an embarrassing survival, 

referring to it as “this cumbersome and prolix statute” and caustically noting the 

“emaciated” and “almost worthless” nature of the powers of disposition it confers. 

For what my opinion is worth, I think Professor Ziff is rather too severe as to the 

style of the statute. No writer, even a statutory draftsman, can entirely shuffle off 

the stylistic conventions of his time, and if the 1856 statute is a trifle overdecorated 

in its language, repetitive, embroidered and “Gothick” in its 

presentation, what should we expect from the days of the Pre-Raphaelites and the 

Neo-Gothic While its wordiness may be annoying to some, it is in large measure 

designed to produce a set of instructions sufficiently worked out to avert needless 

litigation. I for one find no offence in the imagery of “Water, Water Mills, 

Wayleaves and Waterleaves,” 46 and confess to finding its “prolixity” quite as 

pleasing as the austerities of modern legislative draftsmanship. 

As for the content of the 1856 Act, Professor Ziff’s criticisms could be 

appropriately directed not at those who conceived and drafted the statute, but at 

the generations of legislatures who totally failed in the ensuing century or more to 

45 

46 

the Court of Queen’s Bench Act, SM 1988-9, c4-C280, this provision was deleted, evidently being 

considered redundant and duplicative of s 33 (1), supra note 40. 

Supra note 33 at 185. 

Settled Estates Act 1856, supra note 17, s 2.


update and expand the range of transactions which it enabled. The embattled life 

tenant of 1856, denied powers of sale or leasing by his unimaginative or spiteful 

settlor, would not have regarded the conferral of such powers by statute, and the 

removal of the need to seek a private Act of Parliament, 47 as “emaciated” or 

“worthless” reforms. If they have become so – and they have – it is because the 

1856 Act has been long since overtaken by events, which have made it redundant. 

For better or worse, I would merely assert again that it is still there, as part of the 

law of Manitoba, 48 of Saskatchewan and of Alberta too. 

But redundant it undoubtedly is. Until 1983 when, as explained below, all 

life tenants were made willy-nilly the beneficiaries (and usually also the trustees) of 

a legislatively imposed trust, 49 the 1856 Act might be of use when a life tenant 

under a common law settlement felt the need to make a sale or lease of the fee 

simple. That would not be often, since express settlements are not commonly 

created these days, and when they do occur, are usually effected under a trust; 

which brings into play the extensive facilities for Court-approved dispositions of 

all kinds, afforded in Manitoba by the Trustee Act, s 58(1). 50 

Before 1983, arrangements analogous to settlements might arise in Manitoba 

by reason of the (then) Dower Act, which would create life estates having priority 

over the dispositions in a homeowner’s will. The result would be a succession of 

estates, and it might well be debated whether the property was “vested in trustees” 

unequivocally enough to attract the operation or make available the facilities 

afforded by s 58(1) of the Trustee Act. 51 If such doubts could not be overborne, the 

powers secured to the life tenant by the 1856 Act might still be convenient. In 

such special cases a perceived need on the part of a life tenant to sell the fee 

simple or grant leases binding on the remainderperson, might be met only by 

recourse to the 1856 Act. Further, the power under s 32 of the 1856 Act to grant, 

unilaterally and without judicial consent, leases not exceeding 21 years (and not 

including the principal Mansion House and Demesnes thereof) may even now be 

47 

48 

49 

50 

51 

See note 28. 

In 1995, by its Report No. 89, “The Trust Provisions in the Perpetuities and Accumulations 

Act,” the Manitoba Law Reform Commission explicitly recommended that the 1856 Act should 

be repealed, as being redundant and creating a potential embarrassing concurrency of powers 

vested simultaneously in a trustee of the settlement (by the Trustee Act) and in the life tenant (by 

the Settled Estates Act). The powers are not contradictory, so the Trustee Act does not in itself 

impliedly repeal the older statute. Nothing has been done to implement the Law Reform 

Commission recommendation. 

By the Perpetuities and Accumulations Act, supra note 14. 

This provision, subject to occasional amendments, has been part of the Manitoba statute-book 

since the Trustee Act of 1931, SM 1931, c 52, s 53 (1). It is also a feature of the laws of Alberta, 

New Brunswick, Nova Scotia, Yukon and the NWT. 

The better view is surely that the executor of the will would be deemed to be a trustee in a 

sufficiently plenary sense to enable recourse to s 58(1), especially in light of the amplitude of the 

definition of “trust” in s 1 of the Trustee Act.


of use to the life tenant (whether under a trust or not) 52 who prefers not to avail 

himself of s 58 of the Trustee Act. 

That said, Professor Ziff is right – the 1856 Act, which never once received 

mention in a single reported case in Manitoba, 53 and suffered, as we have seen, 

the added indignity of being ignored in Chupryk as supposedly non-existent, is an 

anachronism overdue for repeal. This is more true in Manitoba than in its other 

last strongholds, Saskatchewan and Alberta, because in Manitoba, s 4(1) of the 

Perpetuities and Accumulations Act decreed as follows in 1983: 

Effect of successive legal interests 

4(1) Successive legal interests, whether valid or invalid at common law or as executory 

interests, take effect in equity behind a trust, except that any successive legal interest which 

would not be valid as an equitable interest behind a trust is invalid for all purposes. 54 

That provision inescapably means that whenever a life estate is followed by a 

remainder interest, howsoever that situation comes about, a trust is imposed by 

law and the plenary powers of disposition available under s 58(1) of the Trustee 

Act are available. This will surely be so even in cases like Chupryk v Haykowski, 

where the initial trustee has wrongfully divested himself of his trusteeship and 

purported to vest common law title in the erstwhile beneficiaries: for they will still 

hold “successive legal interest,” s 4(1) will still insist on imposing a trust, and no 

trust will fail merely for want of available trustees. Relevance and utility, at that 

point, have surely passed the 1856 Act by. 

On that valedictory note, I would end, but for one observation. Readers of 

Chupryk v Haykowski will I think note that in its curiously dogged and ultimately 

fruitless search for statutory powers which would avail either Michael Chupryk or 

Sophie Haykowski, the Court seemed, in a manner hard to articulate, to use the 

supposed absence of any Manitoba “Settled Land legislation” as an excuse for 

what it was about to do. An excuse, that is, for showing “resourcefulness” in 

scouring the statute-book to find (and if need be, stretch) some juridical basis on 

which to give one litigant (Mrs. Haykowski) the order she sought. In that spirit, 

the Court of Appeal set its sights on the “partition” provisions of the Law of 

Property Act of Manitoba, and invested them with functions which may by some be 

thought both novel and questionable. But that is a question for another day, and 

will be dealt with in another article, later in this volume. 

52 

53 

54 

Since 1983 the better view is that there will always be a trustee in such circumstances in 

Manitoba, though that will not necessarily be the case in Saskatchewan and Alberta, where the 

1856 Act still clings to life. 

Though it did, of course, feature prominently in the Saskatchewan case of Re Moffatt Estate, supra 

note 36. 

Supra note 14.

Nor-Man Regional Health Authority : Labour 

Arbitration, Questions of General Law and the 

Challenges of Legal Centrism * 

G E R A L D P . H E C K M A N * * 

I. 

INTRODUCTION 

G 

rievance arbitration is an “integral and fundamental institution” in 

Canada’s industrial relations system. 1 Its purpose is to ensure the expert, 

expeditious and peaceful settlement of disputes arising throughout the 

course of the collective agreement – a period during which strikes and lockouts 

are prohibited by statute. Over time arbitrators have developed a body of arbitral 

jurisprudence – an “industrial common law” 2 – regarding the matters that 

commonly arise in the administration of collective agreements. Though 

arbitrators are not bound by a doctrine of stare decisis, they view prior awards and 

similar cases as persuasive. Indeed, these awards form the background of norms 

and understandings against which parties negotiate and draft new collective 

agreements and from which they proceed to resolve grievances. 3 

Often selected by mutual agreement of the parties, sometimes operating as 

tripartite boards with union and employer representation, endowed with 

practical, academic and accumulated expertise in resolving industrial disputes, 

arbitrators can be expected to “understand and respond to the values of the 

industrial community.” 4 Legislatures have granted arbitrators broad powers to 

* 

** 

1 

2 

3 

4 

Editorial note: as mentioned in the post script, the Supreme Court of Canada released their 

decision regarding the case that is the subject of this article prior to publication of this article. 

Professor Heckman predicted their verdict and reasoning successfully, and the article remains a 

though-provoking and informative exploration of the larger legal implications surrounding the 

case. 

Assistant Professor, Faculty of Law, University of Manitoba. I thank the anonymous reviewers for 

their insightful comments and the staff of the Manitoba Law Journal for their assistance during 

the publication process. 

Donald JM Brown, QC & David M Beatty, Canadian Labour Arbitration, 4th ed, loose-leaf, 

(consulted on 19 June 2011), (Aurora, Ont: The Cartwright Group Ltd, 2009) at 1-1. 

David M Beatty, “The Role of the Arbitrator: A Liberal Vision” (1984), 34 UTLJ 136 at 151. 

Brown & Beatty, supra note 1 at 1-13. 

Harry W Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second 

Century” (1967), 45 Can Bar Rev 786 at 823 [Arthurs, Industrial Citizenship].


deal with all manner of issues arising in industrial disputes and commonly protect 

their decisions from judicial review in recognition of the fact that: 

[t]he field of labour relations is “sensitive and volatile” and “[it] is essential that there be a 

means of providing speedy decisions by experts in the field who are sensitive to the 

situation, and which can be considered by both sides to be final and binding”. 5 

It is no wonder, then, that reviewing courts came to recognize labour 

relations as “a discrete and special administrative regime” in which decisionmakers 

have “special expertise.” 6 Acknowledging this expertise and giving effect to 

statutory privative causes, they have reviewed on a deferential “reasonableness” 

standard the decisions of arbitrators relating to the interpretation of collective 

agreements and their enabling statutes. 7 Indeed, courts reviewed such decisions 

on a standard of patent unreasonableness – showing arbitrators the highest degree 

of deference, reserved for experienced and expert administrative tribunals – 

before the Supreme Court did away with that standard in its Dunsmuir decision. 8 

But is a deferential approach to review appropriate when, in resolving an 

industrial dispute, an arbitrator has regard to norms articulated by the courts in a 

context – the law of commercial contracts – unlike that of labour relations More 

specifically, does the invocation of principles of promissory estoppel in an arbitral 

award remove it from the arbitrator’s area of expertise and expose it to correctness 

review by the courts In terms of the framework for substantive review set out by 

the Supreme Court of Canada in Dunsmuir and, in particular, its guidelines with 

regard to questions that will be reviewed on a correctness standard, does an 

arbitrator’s reliance on the principles of promissory estoppel raise a question of 

general law that is both of central importance to the legal system as a whole and 

outside the arbitrator’s specialized area of expertise 9 

This question was the focal point of the Manitoba Court of Appeal’s decision 

in Manitoba Assn of Health Care Professionals v Nor-Man Regional Health Authority 

Inc. 10 After reviewing the facts of this case, including the arbitrator’s award and 

the judgments on review, I critically assess the Court of Appeal’s choice of the 

intrusive correctness standard of review. I argue that the Court unduly extends 

the concept of “question of law of central importance to the legal system”, that it 

overlooks the important influence of labour relations policy in shaping the 

principles of estoppel applicable in the context of grievance arbitration, and that it 

5 

6 

7 

8 

9 

10 

Toronto (City) v Canadian Union of Public Employees, Local 79, 2003 SCC 63 at para 68, 232 DLR 

(4th) 385, LeBel J, quoting from Toronto (City) Board of Education v OSSTF, District 15, [1997] 1 

SCR 487 at para 35, 144 DLR (4th) 385. 

Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 55 [Dunsmuir]. 

Ibid at paras 67-69. 

See, for example, Lakeport Beverages v Teamsters Local Union 938 (2005), 77 OR (3d) 543 at paras 

20-35, 258 DLR (4th) 10 (CA). 


2010 MBCA 55, [2010] 7 WWR 1 [Nor-Man CA].

Nor-Man Regional Health Authority 65 

undermines the successful operation of labour arbitration as an autonomous legal 

regime. 

II. 

A. 

THE NOR-MAN CASE 

The Facts 

The Nor-Man dispute arose from an employee’s grievance that she had been 

denied vacation benefits under the collective agreement between her union, the 

Manitoba Association of Health Care Professionals, and her employer, the Nor- 

Man Regional Health Authority. Under the collective agreement, employees’ 

vacation entitlements were based on how long they had worked for the employer. 

Before the arbitrator, the union argued that this period of time should include 

the time they had worked as casual employees, before they were permanently 

hired. The employer argued that the start date for calculation of vacation 

entitlements was the date the employees became permanently hired and began to 

accrue seniority under the agreement. Before this date, the union argued, the 

agreement dealt with casual employees’ vacation entitlements by providing them 

vacation pay as part of their salaries. The arbitrator agreed with the union’s 

position and found that the employer’s practice of excluding casual time from the 

calculations of employees’ vacation entitlements violated the collective agreement. 

This, however, did not end the matter. The employer had openly calculated 

vacation pay entitlements in the same way for many years, regularly providing 

individual employees with reports indicating a “vacation date” that differed from 

their date of initial hire and coincided instead with their “seniority date” – their 

date of permanent hire. 11 Indeed, the parties had agreed that “the employer had 

consistently applied the relevant provisions using the interpretation which 

excluded credit for casual time, that this practice had never been questioned by 

the union, and that the relevant provisions had existed for at least five previous 

versions of the Agreement”. 12 The employer argued that in view of its longstanding 

and consistent practice, it was entitled to assume from the union’s 

silence that it had accepted the employer’s interpretation of the collective 

agreement. Accordingly, it claimed that the union should be estopped from 

insisting on a different interpretation of the agreement. It would be unfair to 

allow the union to insist on its collective agreement rights as declared by the 

arbitrator since the employer, relying on the union’s acceptance of the employer’s 

practice, had foregone the opportunity to change the collective agreement 

language when the agreement was up for renegotiation or to have otherwise dealt 

11 

12 

Nor-Man Regional Health Authority v Manitoba Assn of Health Care Professionals (Plaisier Grievance), 

[2008] MGAD No 30 at para 36 [Nor-Man award] online: . 

Nor-Man CA, supra note 10 at para 7.


with the issue. 13 The union countered that it had been unaware of the employer’s 

practice, as the employer had supplied the vacation and seniority records to 

individual employees. 14 It denied that it did anything to induce the employer’s 

reliance or that the employer was entitled to rely upon the union’s silence or 

acquiescence: “no representation was or could have been made given that the 

union was unaware of the employer’s practice.” 15 

B. 

The Arbitrator’s Award 

Faced with these competing positions, the arbitrator had to determine 

whether, on the facts established by the parties, the necessary ingredients to find 

an estoppel against the union were present. The parties presented conflicting lines 

of arbitral jurisprudence on the issue of whether estoppel could be established 

through a union’s silence in the face of an employer’s practice. The union relied 

on Georgian College of Applied Arts & Technology v OPSEU, 16 in which the board of 

arbitration held that to establish an estoppel, it would have to be shown that the 

union was aware both of the employer’s practice and that the practice was 

inconsistent with the collective agreement, yet remained silent for a period of 

time. The employer relied on another line of awards in which arbitrators held that 

the union could have “constructive” or “imputed” knowledge of an employer’s 

practice without actual knowledge of the practice. 17 The arbitrator adopted the 

reasoning set out in the awards cited by the employer and decided that on the 

evidence before him, estoppel was made out: 

While these Awards are not binding, they are indeed persuasive and I prefer the reasoning 

of Arbitrators Graham and Peltz that in appropriate circumstances, a party should be 

determined to have imputed or constructive knowledge of the other party’s practice. Such 

circumstances clearly exist here. Having regard to the Statement of Agreed Facts, the 

accompanying exhibits, and the viva voce testimony, the Employer’s practice has been long 

standing, consistent, and open. All employees were made aware of the practice through the 

annual Employees Confirmation of Vacation Sheets, and all employees and the Union 

were made aware of the practice through the annual Seniority Reports, both provided and 

posted. Questions pertaining to the practice have been asked and answered. If the Union 

was not aware, it certainly ought to have been aware of the Employer’s application of 

Articles 1104 and 1105. It would be unfair to permit the Union to enforce its 

interpretation of Articles 1104 and 1105. The Employer was entitled to assume that the 

Union had accepted its practice, and to rely on that acceptance in not seeking to negotiate 

13 

14 

15 

16 

17 

Nor-Man award, supra note 11 at para 43. 

Nor-Man award, ibid at para 90. 

Ibid. 

(1997), 59 LAC (4 th ) 129 (Ont), 1997 CarswellOnt 6301 (WL Can) (Ont AB). 

Manitoba (Family Services and Housing) v Canadian Union of Public Employees, Local 2153, (2005), 

142 LAC (4 th ) 173 (Man); Re Agassiz School Division No 13, [1997] MGAD No 61, 2005 

CarswellMan 536 (WL Can).


a change or to exercise a right to effect a service break with a change in employment status. 

All of the elements necessary to establish the estoppel are present. 18 

The arbitrator ordered that the union be estopped from asserting its 

collective agreement rights pertaining to vacation entitlements until the 

termination of the current agreement. 

C. 

Judicial Review by the Court of Queen’s Bench 

The union sought judicial review of the award in the Manitoba Court of 

Queen’s Bench. It claimed that the arbitrator had erred in interpreting and 

applying the principle of estoppel, a question, in its view, “of central importance 

to the collective bargaining community and to the legal community as a whole.” 19 

The applications judge disagreed with the union’s assertion that the issue was a 

question of law of central importance to the legal system as a whole and outside 

the adjudicator’s specialized area of expertise which, under the Supreme Court’s 

Dunsmuir guidelines, demanded correctness review: 

I see the issue as a combined question of fact and law and while it may be of importance to 

the collective bargaining community, I cannot conclude that it is of central importance to 

the legal system as a whole. Moreover, [arbitrator] Simpson is a lawyer with more than 30 

years’ experience and is well experienced as an arbitrator in the area of labour relations. I 

cannot say the issue before him was outside his specialized area of expertise. 20 

Beginning with the presumption that a reasonableness standard applied, and 

noting the existence of a privative clause in Manitoba’s Labour Relations Act 21 and 

the arbitrator’s expertise “in the special administrative regime of labour relations”, 

the applications judge concluded that “the nature of the question of law… was not 

of the level that would mandate the standard of correctness…”. 22 In applying a 

reasonableness standard, the applications judge outlined the diverging arguments 

put to the arbitrator by the parties and the arbitrator’s reasons for preferring the 

line of arbitral jurisprudence relied upon by the employer, and decided to uphold 

the award: 

In applying the standard of reasonableness, I must pay deference to Simpson’s decision. I 

find it to be intelligible and justifiable and that it falls within a range of possible, acceptable 

outcomes which are defensible in respect to the facts and the law. It was one which he was 

entitled to make based on the facts as he found them and the authorities which he chose to 

follow. In those circumstances, I am unable to conclude that his decision was unreasonable 

in the circumstances. 23 

18 

19 

20 

21 

22 

23 

Nor-Man award, supra note 11 at para 96. 

Manitoba Assn of Health Care Professionals v Nor-Man Regional Health Authority Inc., 2009 MBQB 

213 at para 7, 243 Man R (2d) 281 [Nor-Man QB]. 


RSM 1987, c L10 [Manitoba Labour Relations Act]. 


Ibid at para 20.


D. 

The Decision of the Manitoba Court of Appeal 

Before the Manitoba Court of Appeal, the union once again claimed that the 

arbitrator’s definition and application of the remedy of estoppel should have been 

reviewed on a correctness standard as it raised a question of law that was of 

central importance to the legal system as a whole and not within the arbitrator’s 

special expertise. In its view, the existence of conflicting lines of arbitral 

jurisprudence supported its position: 

[T]he cases relied on by the arbitrator to impose an estoppel were arbitral decisions that 

had not received the imprimatur of the courts and were not truly authoritative decisions. 

There were contrary arbitral decisions that took the view that estoppel would not lie in the 

absence of actual knowledge and agreement to waive rights. Thus, the issue of whether an 

estoppel can be imposed must be resolved by the courts, since the question is one of 

general law. 24 

The employer argued that the applications judge had correctly selected and 

applied the reasonableness standard to the arbitrator’s award and, in particular, to 

his decision to follow arbitral decisions that established that a union’s silence 

could signal its acquiescence to an employers’ long-standing, open practice and to 

his finding of acquiescence on the facts of the case. 

The Court of Appeal allowed the appeal. Justice Freedman, writing for the 

Court, began by defining the questions of law which were at issue in the judicial 

review and which were extricable from the facts of the case: 

(1) does the law of promissory estoppel require that the party (the promissor) against whom 

the estoppel is sought have actual knowledge of the facts on the basis of which the estoppel 

is sought, or is it sufficient if the promissor has imputed or constructive knowledge of those 

facts; and 

(2) does the law of promissory estoppel require that the promissor intend by its 

representation, whatever its form, to affect legal relations with the other party (the 

promissee) 25 

These questions, the Court held, were not within the arbitrator’s specialized 

expertise and had no “particular relevance to labour law”: 26 

The question of whether imputed or constructive knowledge is sufficient to found an 

estoppel, and the related question about intent, are questions that, in my opinion, are not 

confined to any particular field of law. The questions and their answers transcend 

individual areas of law, such as property, contracts and labour law, and are of central 

importance to the legal system as a whole. It may be that labour arbitrators have opined on 

those questions, but they do not fall within their specialized area of expertise. Defining the 

parameters of promissory estoppel must surely be “within the normal purview of both the 

trial and appellate courts”. 27 

24 

25 

26 

27 

Nor-Man CA, supra note 10 at para 24. 



Ibid at paras 46 – 47.


The question of law here is similar in concept to the question of law in 

Toronto (City), as explained by LeBel J: 

Second, it bears repeating that the application of correctness here is very much a product of 

the nature of this particular legal question: determining whether relitigating an employee's 

criminal conviction is permissible in an arbitration proceeding is a question of law 

involving the interpretation of the arbitrator's constitutive statute, an external statute, and 

a complex body of common law rules and conflicting jurisprudence. More than this, it is a 

question of fundamental importance and broad applicability, with serious implications for 

the administration of justice as a whole. It is, in other words, a question that engages the 

expertise and essential role of the courts. It is not a question on which arbitrators may be 

said to enjoy any degree of relative institutional competence or expertise. As a result, it is a 

question on which the arbitrator must be correct. 28 

The Court agreed with the union that, in determining the required 

ingredients of estoppel, the courts, not the arbitrators, had relative expertise: 

On the critical question of expertise, it is clear that the arbitrator was not interpreting a 

statute, nor was he dealing with a general common law rule in a specific statutory context. 

He was dealing with a remedy that had originated in the courts, applying concepts rooted 

in equity, which was not a remedy unique to labour law. Ascertaining the parameters of the 

doctrine of estoppel does not raise a question on which arbitrators have any relative degree 

of institutional competence or expertise. 29 

In light of the nature of the question and the arbitrator’s relative lack of 

expertise, the Court concluded that the appropriate standard of review was 

correctness: 

Here, the fact that The Labour Relations Act… contains a privative clause, and the purpose of 

the tribunal, which essentially is to resolve disputes outside the courtroom, would both 

suggest a deferential stance by a court to an arbitrator’s decision. But the other two factors, 

being the nature of the pure question of law which, in my view, is of central importance to 

the legal system as a whole, and the relative lack of expertise of the tribunal on the pure 

legal question, shift the balance overwhelmingly to a standard of correctness on the legal 

question. 30 

Applying the standard of correctness, the Court of Appeal embarked on its 

own analysis of the required ingredients of promissory estoppel. It determined, 

based on a review of several appellate decisions and some arbitral awards, that 

before an estoppel could be imposed, the arbitrator would have to make two 

express findings supported by the evidence: 

First, there would have to be a finding that there was actual or imputed knowledge of 

certain facts. Second, there would have to be a finding that the representation, made with 

either actual or imputed knowledge of the facts, was intended to affect the legal relations 

between the parties. 31 

28 

29 

30 

31 

Supra note 5 at para 70 [emphasis in original]. 



Ibid at para 67


While the arbitrator was correct in holding that he could impute knowledge 

of the employer’s practice in relation to calculating the vacation benefits, he erred 

in law “by failing to consider and make a finding” on whether the union had 

intended its representation (of silence or acquiescence) to affect its legal relations 

with the employer. This omission may have been due to the arbitrator’s failure to 

identify the essential element of intent “as a legal prerequisite to the imposition of 

estoppel”: 32 

[T]he arbitrator made no finding of any kind on the issue of intent. He made no finding to 

the effect that the union intended by its representation, which was one of 

“silence/acquiescence”… to affect its legal relations with the employer. The award is silent 

on this issue. As explained above, before an estoppel could be imposed the union must 

have intended that its representation affect its legal relations with the employer, and there 

must be a finding to that effect. Otherwise, an essential ingredient of the estoppel mix 

would be missing. 

Thus, I must conclude that in his imposition of an estoppel against the union the 

arbitrator erred in law, by failing to consider and make a finding on the question of the 

union’s intent to affect legal relations with the employer. 33 

In November 2010, the Supreme Court of Canada granted the employer 

leave to appeal. 34 

III. 

ANALYSIS 

Like the Manitoba Court of Appeal in Nor-Man, other appellate courts in 

Canada have reviewed arbitrators’ and labour boards’ elaboration of the 

principles of estoppel on a correctness standard. In Otis Canada Inc v International 

Union of Elevator Constructors, Local 50, 35 Ontario’s Divisional Court reviewed the 

decision of an Ontario Labour Relations Board Vice-Chair who, sitting as an 

arbitrator on a construction industry grievance, had allowed a union’s grievance 

in respect of the employer’s decision to stop paying employees travel time and 

expenses for maintenance work. The OLRB had determined that, in light of its 

long-standing practice of paying travel time and expenses, the employer was 

estopped from insisting on the terms of the collective agreement. The Divisional 

Court applied a standard of correctness to its review of the OLRB’s decision: 

Estoppel is an equitable doctrine initiated by the Courts of Equity. It is not something over 

which the OLRB has any unique or special expertise and, therefore, the application or nonapplication 

of the doctrine of estoppel is not a matter requiring the deference of the Court. 

32 

33 

34 

35 

Ibid at 82. It is possible that the arbitrator’s omission of a finding regarding the union’s intent 

was “involuntary” and resulted from a deficiency in his reasons. My analysis will proceed on the 

basis that the omission results from the arbitrator’s deliberate choice not to consider proof of the 

union’s intent as a required ingredient for estoppel. 


[2010] SCCA No 275. 

(2000) 136 OAC 60 (Div Ct), [2000] OLRB Rep 778 [Otis Canada].


However, the applicability or non-applicability of the doctrine is a matter going to the 

jurisdiction of the OLRB and is subject to the standard of correctness. 36 

Other courts have adopted a deferential standard of review. In a recent 

judgment reviewing a decision of the Ontario Labour Relations Board on a 

construction industry grievance arbitration, the Ontario Divisional Court rejected 

the employer’s submission that the Board’s application of the doctrine of estoppel 

should be subjected to correctness review: 

While the application of the doctrine of estoppel is partly a legal question, its application 

here raises issues of mixed law and fact. Moreover, the Board and labour arbitrators have a 

long history of applying this doctrine when adjudicating grievances (references omitted)… 

Therefore, the Board is entitled to deference in the application of this doctrine, and the 

standard of reasonableness applies to the estoppel issue as well as the interpretation and 

application of the Act and the agreements. 37 

In my view, the Manitoba Court of Appeal’s decision in Nor-Man is 

vulnerable on appeal for several reasons. First, the Court of Appeal has taken too 

broad a view of the concept of the question of general law described by the 

Supreme Court in Dunsmuir, unduly expanding the reach of this concept and the 

scope of correctness review. Second, in concluding that the elaboration of the 

ingredients of promissory estoppel was a question of law outside the arbitrator’s 

specialized expertise, the Court of Appeal did not appreciate the special and 

significant influence of the labour relations context on those ingredients. Finally, 

the conception of the courts’ role in the judicial review of arbitral awards that 

underlies the union’s position and the Court of Appeal’s judgment undermines 

the successful operation of labour arbitration as an autonomous legal system, 

which requires restraint on the part of reviewing courts. 

36 

37 

Ibid at para 30. See also International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, 

Forgers and Helpers, Local D331 v La Farge Canada Inc, 66 Alta LR (3d) 396, [1999] 5 WWR 712 

(QB), appeal dismissed on other grounds, 74 Alta LR (3d) 346, [2000] 2 WWR 724 (CA) where 

the Court found, at para 29, that a board of arbitration did not have “unique expertise” in 

applying and interpreting principles of promissory estoppel. See also United Nurses of Alberta, 

Local 118 v Capital Care Group Inc, 2006 ABQB 344 at paras 9-10, 58 Alta LR (4th) 384: the 

arbitration board’s “statement of the legal requirements of waiver and estoppel” are subject to 

correctness review; and Brandt Tractor Ltd v Pardee Equipment Employees Assn, 2006 ABQB 327 at 

para 25. 

Jacobs Catalytic Ltd. v International Brotherhood of Electrical Workers, Local 353 (2008), 91 OR (3d) 

20 at para 39, [2008] CLLC 220-056 (Div Ct), rev’d on other grounds 2009 ONCA 749. See also 

Maritime Electric Co v International Brotherhood of Electrical Workers (IBEW), Local 1432 (1993), 112 

Nfld & PEIR 119, [1993] PEIJ No 123, where the Prince Edward Island Supreme Court-Appeal 

Division reviewed a board of arbitration’s decision that the circumstances of a grievance 

established a promissory estoppel on a standard of patent unreasonableness.


A. 

Questions of General Law of Central Importance to the Legal 

System 

In Dunsmuir, the Supreme Court held that courts must apply a correctness 

standard in reviewing administrative decisions raising questions of general law 

both of central importance to the legal system as a whole and outside the 

adjudicator’s specialized area of expertise. Such questions require “uniform and 

consistent answers”, the Court observed, “[b]ecause of their impact on the 

administration of justice as a whole”. 38 The Court pointed to its decision in 

Toronto (City) v CUPE, 39 “which dealt with complex common law rules and 

conflicting jurisprudence on the doctrines of res judicata and abuse of process 

issues… at the heart of the administration of justice” as an example of a case 

involving questions of general law. In Toronto (City), the city terminated an 

employee following his conviction for the sexual assault of one of the children 

under his charge. Ruling that the grievor’s conviction was admissible evidence but 

was not conclusive as to whether he had actually assaulted the child, a labour 

arbitrator allowed the union’s grievance of the termination and ordered the 

grievor’s reinstatement. The Supreme Court held that the arbitrator’s award, 

which allowed the parties to re-litigate the grievor’s criminal conviction, resulted 

in an abuse of process. It found that the arbitrator was required by the doctrine of 

abuse of process to give full effect to the criminal conviction. 

Whether and when an arbitrator should have the power to allow the relitigation 

of a criminal conviction is not a question that implicates only labour 

relations. An arbitrator’s decision to allow re-litigation can lead to inconsistencies 

between the outcomes of criminal proceedings and labour arbitrations that 

“undermine the credibility of the entire judicial process, thereby diminishing its 

authority, its credibility and its aim of finality”. 40 Given the significant spillover 

effects of the arbitrator’s decision in Toronto (City) on the public’s confidence in 

the courts’ administration of justice, it makes sense for the courts to govern the 

interaction between the findings of a judge hearing a criminal case and those of 

an arbitrator resolving a labour dispute. 

The question in Nor-Man, unlike that in Toronto (City), does not implicate the 

proper interaction between two legal regimes – criminal law and grievance 

arbitration under collective agreements. It relates to the arbitrator’s view of what 

is required, in the context of grievance arbitration, to found an argument that one 

of the parties should be precluded from relying on the strict terms of a collective 

agreement. Arbitral awards are binding only on the parties to the arbitration, and 

there is no rigid rule of stare decisis in labour arbitration. There is thus no 

38 

39 

40 

Dunsmuir, supra note 6 at para 60. 

Toronto (City), supra note 5. 

Ibid at para 51.


guarantee that the arbitrator’s award will have a determinative or even significant 

impact on arbitral jurisprudence let alone the interpretation or application of 

estoppel in any other legal regime, such as the law of contracts in a commercial 

context. The question raised by the arbitrator’s award in Nor-Man is in this sense 

very different from that which preoccupied the Supreme Court in Toronto (City). It 

does not, in my view, bear the hallmarks of a “question of general law of central 

importance to the legal system as a whole”. 

B. Estoppel in the Labour Relations Context and Arbitrators’ 

Expertise 

The Court of Appeal also justified its invocation of the correctness standard 

by holding that “ascertaining the parameters of the doctrine of estoppel does not 

raise a question on which arbitrators have any relative degree of institutional 

competence or expertise.” 41 Indeed, it faulted the applications judge for regarding 

the legal elements in the question as “having particular relevance to labour law”. 42 

In its view, defining the ingredients of promissory estoppel, a remedy created by 

the courts applying concepts of equity, was a question which transcended 

individual areas of law, including labour law, and so fell within the normal 

purview of the courts. 43 

The claim that the scope and content of promissory estoppel as applied by 

labour arbitrators is entirely divorced from the grievance arbitration context and 

labour relations policy is contentious, to say the least. Paul Weiler, one of 

Canada’s pre-eminent labour law scholars and practitioners, explored at length 

the labour relations dimensions of estoppel as Chair of the British Columbia 

Labour Relations Board in Corporation of the City of Penticton and Canadian Union 

of Public Employees, Local 608. 44 In that case, the union and employer had signed a 

memorandum of agreement providing for new benefits, including a group life 

insurance plan. The employer, following a long-standing policy in which the 

union had acquiesced over the years, chose not to implement the terms of 

settlement until a formal agreement was signed. Unfortunately, a city employee 

died only several days before the group life insurance plan was set to begin. The 

union grieved on behalf of the employee’s estate that the employee was entitled to 

the new benefits set out in the terms of settlement, which, they argued, was a 

binding agreement enforceable as of the date it was signed. The City contended 

that its ongoing past practice of not instituting new benefits until a formal 

agreement was ratified was well known to the union, and given the union’s failure 

to object to the employer’s position that, consistent with this practice, the life 

41 

42 

43 

44 



Ibid at paras 46 and 50. 

[1978] BCLRBD No 26, 18 LAC(2d) 307 [Penticton].


insurance benefit would only begin at a later date, it was estopped from asserting a 

different, earlier implementation date for that benefit under the collective 

agreement. 

Citing some of the same judicial precedents as those relied on by the 

Manitoba Court of Appeal in Nor-Man, the Board of Arbitration decided to adopt 

a narrow view of estoppel – one which required the employer to show that the 

union had intended that its legal relations with the union be affected: 

[T]he arbitration board held that the Union did not really put its mind to this specific 

question of when the additional life insurance must be in effect, until after the death of 

Sieg crystallized the issue. Thus, according to the arbitration award, the Union did not 

“consciously acquiesce” in the City’s mistaken interpretation, it did not “enter into a 

course of negotiations” with the City about this topic, and it did not “intend to alter the 

legal relations created by the contract”. 45 

Not only did the board of arbitration apply the same restrictive definition of 

estoppel as the Court of Appeal in Nor-Man, it did so for the same reason–to 

remain faithful to the judicial origins of the doctrine: 

The legal issue resolves itself as to whether an estoppel arises when one party inadvertently 

acquiesces to a mistaken belief on the part of the other party to the contract, which itself 

does not share. We have been unable to find any cases directly in point. In the absence of 

any direct authority on this point, the question becomes whether the Board ought to adopt 

a wide or narrow view of the doctrine of estoppel. We believe that it is not the role of an 

arbitration board to redefine or widen the equitable doctrine of estoppel. This is a proper 

function for the Courts, the source of the doctrine. The facts of this case fall very close to 

being sufficient to constitute an estoppel. As an arbitration board in a labour relations 

dispute, however, we feel the safer course is to adopt a strict definition or interpretation of 

the doctrine of estoppel. We adopt the definition of estoppel set out by Mr. Justice Ritchie 

in the Burrows case. 46 

Applying this strict conception of estoppel, the board of arbitration dismissed the 

employer’s claim. 

The employer appealed the award to the British Columbia Labour Relations 

Board under provisions of the BC Labour Code on the statutory ground that it was 

“contrary to the principles of the Code”. Paul Weiler observed that labour 

arbitrators in British Columbia were “not confined to the traditional boundaries 

of such legal concepts as promissory estoppel”, a premise then expressed in 

section 92(3) of the Labour Code, which read: 

An arbitration board shall, in furtherance of the intent and purpose expressed in 

subsection (2), have regard: to the real substance of the matters in dispute and the 

respective merit of the positions of the parties thereto under the terms of the collective 

agreement, and shall apply principles consistent with the industrial relations policy of this 

Act, and is not bound by a strict legal interpretation of the issue in dispute. 

45 

46 


Ibid at para 15.


Weiler relied for this proposition on AIM Steel Ltd v United Steelworkers of 

America, Local 3495, 47 in which the British Columbia Court of Appeal had 

rejected an employer’s claim that the interpretation of a collective agreement was 

a matter of the general law because it involved the “well-known canons of 

construction”. The Court had held: 

In the face of the direction that an Arbitration Board is not bound by a strict legal 

interpretation of the issue in dispute, it cannot be successfully asserted that “the basis of 

the decision” of this Board in interpreting the wording of this collective agreement was “a 

matter or issue of the general law”. It could not have been intended that a decision made 

pursuant to this direction, should be subject to review by reference to the general law, by 

which the arbitrator is expressly instructed not to consider himself bound. 48 

In Chairperson Weiler’s view, this statutory language “freed labour 

arbitrators from strict control by common law rules of contracts and their 

interpretation” and required them to fashion a “jurisprudence of the collective 

agreement which is responsive to the modern world of industrial relations.” 49 

Significantly, Manitoba’s Labour Relations Act contains a similar provision, which 

affirms that arbitrators are not bound by a “strict legal interpretation of the matter 

in dispute”. 50 Chairperson Weiler allowed the employer’s appeal, finding that the 

board of arbitration, in assuming that it was compelled to follow the judicial 

conception of estoppel developed for commercial contracts, “had failed to carry 

out its statutory mandate… to fit the principle of estoppel into the special setting 

and policy objectives of the world of industrial relations.” 51 Accordingly, the B.C. 

Labour Board reversed the board of arbitration’s decision to consider itself bound 

by the same definition of estoppel adopted as correct by the Manitoba Court of 

47 

48 

49 

50 

51 

[1976] BCJ No 6 (CA). 


University of British Columbia and Canadian Union of Public Employees, Local 116, [1976] BCLRBD 

No 42, s 3, [1976] 2 WLAC 563. 

Manitoba Labour Relations Act, supra note 21, s 121(1). The provision states: “An arbitrator or 

arbitration board shall, in respect of any matter submitted to arbitration, have regard to the real 

substance of the matter in dispute between the parties and to all of the provisions of the 

collective agreement applicable to that matter, and the arbitrator or arbitration board is not 

bound by a strict legal interpretation of the matter in dispute.” The fact that, unlike the BC 

Code, the Manitoba statute does not expressly mandate the application of “principles consistent 

with the industrial relations policy of this Act” is, in my view, of no moment. A board of 

arbitration applying principles inconsistent with the policies underlying the Manitoba Labour 

Relations Act in adjudicating a grievance pursuant to its powers under the Act would likely be 

found to have acted unreasonably: Macdonell v Québec (Commission d’accès à l’information), 2002 

SCC 71 at paras 74-77, [2002] 3 SCR 661. In Macdonell, Justices Bastarache and LeBel, 

dissenting on another point, noted at para 75 that an administrative decision-maker that does 

not take into account the legislative purpose in its interpretation of the statute “is acting 

unconsciously or arbitrarily, and that is certainly not reasonable.” All the more so if the decisionmaker 

takes into account principles that are inconsistent with that purpose. 

Penticton, supra note 44, s 6.


Appeal in Nor-Man, on the grounds that such an approach was inconsistent with 

the board’s duty to decide grievances consistently with industrial relations policy. 

For the Labour Board, the unique characteristics of the labour relations 

context of grievance arbitration demanded a different approach to defining the 

doctrine of estoppel than the commercial context in which courts had developed 

the doctrine. Chairperson Weiler writes as follows: 

How should such a problem be approached under the Labour Code One must begin with a 

vivid appreciation of the distinction between collective agreements and commercial 

contracts. In John Burrows, for example, the court dealt with a single, isolated transaction 

between the parties: the sale of the business with a promissory note given for the balance of 

the purchase price, which was to be repaid in regular instalments with interest. In that 

situation, it was quite understandable that the judges, before holding that the terms of the 

contract might be departed from by one side, would require evidence that the parties had 

actually sat down together, each aware of their respective rights and obligations, and thus 

mutually agreed to alter the requirements of their contract for the time being. 

But a collective bargaining relationship is quite a different animal. The union and the 

employer deal with each other for years and years through successive agreements and 

renewals. They must deal with a wide variety of problems arising on a day to day basis 

across the entire spectrum of employment conditions in the workplace, and often under 

quite general and ambiguous contract language. By and large, it is the employer which 

takes the initiative in making operational decisions within the framework of the collective 

agreement. If the union leadership does not like certain management actions, then it will 

object to them and will carry a grievance forward about the matter. The other side of that 

coin is that if management does take action, and the union officials are fully aware of it, 

and no objection is forthcoming, then the only reasonable inference the employer can 

draw is that its position is acceptable. Suppose the employer commits itself on that 

assumption. But the union later on takes a second look and feels that it might have a good 

argument under the collective agreement, and the union now asks the arbitrator to enforce 

its strict legal rights for events that have already occurred. It is apparent on its face that it 

would be inequitable and unfair to permit such a sudden reversal to the detriment of the 

other side. In the words of the Board in District of Burnaby, cited above: “It is hard to 

imagine a better recipe for eroding the atmosphere of trust and co-operation which is 

required for good labour/management relations, ultimately breeding industrial unrest in 

the relationship – all contrary to the objectives of the Labour Code”. 52 

Chairperson Weiler’s analysis demonstrates that the elaboration of the 

ingredients of estoppel by conduct is infused with labour relations policy. An 

arbitrator confronted with a Nor-Man scenario might consider what incentives 

would result, in that specific workplace, from the imposition of a rigid 

requirement that the party raising estoppel as a defence must prove that the other 

party intended to affect the legal relations between them. Would the absence of 

52 

Ibid. Chairperson Weiler added important caveats to his discussion of estoppel. First, he assumed 

that the union was aware of the employer’s practice. In Nor-Man, the arbitrator concluded that in 

light of the open and longstanding nature of the employer’s practice and the fact that questions 

about the practice were asked and answered, the union was or should have been aware of it. 

Second, Chairperson Weiler observed that once the union asserted its position challenging the 

employer’s practice, the employer would have no equitable defence to subsequent grievances 

filed by the union.


such a requirement encourage unions and employers – sophisticated parties 

engaged in the long-term contractual relationship – to more closely monitor how 

their collective agreement is administered, to the benefit of both parties and all 

employees involved The effect of a decision on the future relationship of the 

parties with each other, infrequently if ever considered by courts in a commercial 

contracts case, is a central preoccupation of labour arbitrators. 53 Such 

considerations require labour relations sensitivity and go to the heart of labour 

arbitrators’ expertise. They call for deference on the part of reviewing courts and 

the application of reasonableness review. 

C. 

The Category of Questions of General Law and the Challenge 

of Legal Centrism 

Nor-Man indicates that courts’ interpretation of Dunsmuir’s category of 

questions of general law of central importance to the legal system, much like their 

interpretation of the concept of jurisdiction, will become a locus of tension 

between two conceptions of administrative law: one privileging legal centrism, 

where the law “as a ‘whole, unified, integrated thing’ with the courts at the top 

‘fully competent to administer the whole law’” pulls “towards coherence across 

the whole legal landscape”, 54 the other supporting legal pluralism – the existence 

of distinctive, quasi-autonomous legal regimes where administrators are free to 

develop within their area of statutory authority their own principles and policies, 

attuned to their legislative purpose and the realities of those they administer. 

The union’s position in Nor-Man is marked by a strong current of legal 

centrism. Arbitral pronouncements on the scope and content of estoppel, it 

claims, are not “truly authoritative” unless they receive “the imprimatur of the 

courts.” 55 The existence of conflicting lines of arbitral jurisprudence on whether 

estoppel lay in the absence of factual knowledge and agreement to waive rights, 

the union argued, meant that the courts had to step in and impose the correct 

view. 56 Underlying these arguments is a vision of labour arbitrators as trial judges, 

writ small, whose role is to try, as best they might, to apply general legal principles 

to the facts before them subject to correction by appellate courts. Moreover, the 

union’s argument in favour of judicial intervention pre-supposes that a 

correctness standard is always appropriate in the presence of conflicting decisions 

– a claim that was refuted by the Supreme Court in Domtar v Québec (Commission 

d’appel en matière de lesions professionnelles). 57 In Domtar, two tribunals had given a 

53 

54 

55 

56 

57 

Arthurs, Industrial Citizenship, supra note 4 at 823. 

Michael Taggart, “Prolegomenon to an intellectual history of administrative law in the twentieth 

century: the case of John Willis and Canadian administrative law” (2005), 43 Osgoode Hall LJ 

223 at 261. 


Ibid. 

[1993] 2 SCR 756, 104 DLR (4th) 385.


different meaning to a legislative provision whose interpretation fell within their 

expertise and was subject to a patent unreasonableness standard of review. Justice 

L’Heureux-Dubé, for the Court, declined to accept inconsistency as a freestanding 

ground for correctness review, expressing concern that review for inconsistency 

would transform Superior Courts into “genuine appellate jurisdictions”: 

In my opinion, questions as to the advisability of resolving a jurisprudential conflict avoid 

the main issue, namely, who is in the best position to rule on the impugned decision. 

Substituting one’s opinion for that of an administrative tribunal in order to develop one’s 

own interpretation of a legislative provision eliminates its decision-making autonomy and 

special expertise. 58 

The Diceyan assumption that the authority of arbitral awards depends on 

their receiving the blessing of the superior courts ignores the more subtle role of 

principle and precedent in labour arbitration. Harry Arthurs, another pre-eminent 

Canadian labour law academic and arbitrator, urged arbitrators to resist the 

pressure to adopt broad principles on the basis of which all individual cases would 

be resolved: 

[This approach] may preclude the pragmatic and realistic solutions to particular problems 

which would be of most assistance to labour and management in a given bargaining 

relationship. By such an approach, there is a risk that the lessons of experience, the everchanging 

industrial environment, the nuances of the particular situation, might disappear 

from view. This is not to say that a gradual and economical adumbration of principle ought 

not to occur. As principle emerges from particular situations, it assists the parties in 

resolving subsequent disputes without recourse to arbitration. As similar cases are decided 

over a period of years by a large number of arbitrators, the parties may be able to 

realistically evaluate the odds upon particular language being construed in a particular way. 

And as opposing statements of principle confront each other, there being no ultimate 

appellate tribunal, pressures are generated for compromise between the two positions. 59 

In other words, the labour relations community, labour arbitrators and the parties 

to collective agreements, can work out these issues for themselves. 

The award of arbitrator M.A. Pineau in Re Sterling Place and United Food and 

Commercial Workers International Union, Locals 175/633 illustrates this point well. 60 

In that case, the issue was whether an employer could be estopped from 

discontinuing a long-standing practice of paying meal benefits even when meal 

benefits were not a term of the collective agreement. Arbitrator Pineau noted the 

existence of three approaches in the arbitral jurisprudence regarding the scope of 

estoppel. Some arbitrators, following a restrictive approach, refused to allow 

parties to invoke estoppel as a sword to “create” rights not found in the collective 

agreement. Some arbitrators, following a permissive approach, rejected the swordshield 

distinction as unsuitable to an industrial relations context, where parties 

58 

59 

60 

Ibid at para 87 [emphasis added]. 

Re United Steelworkers of America and Russelsteel Ltd. (1966), 17 LAC 253 at para 5, [1966] OLAA 

No 4 (available on QL). 

(1997) 62 LAC (4th) 289, 1997 CarswellOnt 6186 (WL Can) [Sterling Place].


enjoy long-term contractual relationships, and allowed such claims. Other awards 

followed an “intermediate” approach. There was judicial support for both the 

restrictive and permissive approaches. 61 Arbitrator Pineau decided that the 

permissive approach was appropriate based on the nature of the benefits at issue 

in the grievance. Meal benefits were a form of compensation, and compensation 

was not normally subject to unilateral alteration during the course of a collective 

agreement. In such a context, given the long-standing nature of the practice and 

the fact that it had continued into the first 11 months of a new collective 

agreement, it was reasonable for the union to assume that the benefits would 

continue and it would be unjust to allow the employer to insist on its strict legal 

right to discontinue them. 62 Far from being fazed by the existence of multiple 

lines of arbitral authority on the question confronting her, arbitrator Pineau 

selected the approach which, for principled reasons, best fit the specific 

circumstances of the grievance before her. I see no reason why courts should 

preclude such an approach by imposing, through correctness review, a one-size-fitsall 

approach to estoppel, less sensitive to the labour relations context. 

Promissory estoppel, as noted by the Court of Appeal in Nor-Man, is a remedy 

that originated in the courts, applies concepts rooted in equity, and is not unique 

to labour law; however, this does not inexorably mean that the courts must 

forever be responsible for the doctrine’s development in every statutory context, 

and, in particular, the special environment of labour relations. Indeed, looking at 

it from a labour relations standpoint, the question of estoppel by conduct is 

simply whether the collective agreement, or part thereof, “should be applied, 

having regard to the conduct of the parties.” 63 Who better to determine this 

question than an arbitrator who is familiar with the parties, the history of their 

bargaining relationship and the realities of their workplace 64 As noted by the 

Ontario Divisional Court in an early, seminal decision on the authority of 

arbitrators to apply estoppel, “questions of the application of collective 

agreements are squarely within the jurisdiction of arbitrators in labour disputes.” 65 

Had arbitrators elaborated their own doctrine to answer the question of estoppel 

by conduct in the context of collective agreement arbitration, courts would have 

been hard-pressed to demonstrate that arbitrators’ definition of this doctrine was 

a question of general law of central importance to the legal system. Why should 

the fact that arbitrators have instead chosen to borrow the doctrine of promissory 

estoppel from the common law of commercial contracts and adapt it to labour 

61 

62 

63 

64 

65 

For an analysis of this question, see: MA Hickling, “Labouring with Promissory Estoppel: A Wellworked 

Doctrine Working Well” (1983), 17 UBC Law Rev 183. 

Ibid at 305. 

Canadian National Railway Co v Beatty (1981), 34 OR (2d) 385 at para 29, 128 DLR (3d) 236. 

I thank the anonymous reviewer for emphasizing this point. 

Ibid.


relations realities remove the question of estoppel from their sphere of 

jurisdiction and expertise 

In Toronto (City), in a judgment concurring with the majority’s assessment 

that the question of whether an arbitrator should re-litigate a grievor’s criminal 

conviction, which involved common law doctrines of res judicata and abuse of 

process, should be subject to correctness review, Justice LeBel presciently observed 

that a correctness standard would not apply to all questions involving general 

common law questions: 

In the field of labour relations, general common and civil law questions are often closely 

intertwined with the more specific questions of labour law. Resolving general legal 

questions may thus be an important component of the work of some administrative 

adjudicators in this field. To subject all such decisions to correctness review would be to 

expand the scope of judicial review considerably beyond what the legislature intended, 

fundamentally undermining the ability of labour adjudicators to develop a body of 

jurisprudence that is tailored to the specialized context in which they operate. 66 

This passage, cited by the applications judge in Nor-Man, could aptly describe 

labour arbitrators’ use of estoppel principles in the context of grievance 

arbitration. But if correctness review is not appropriate, on what basis should 

courts intervene in such cases When it comes to applying principles of estoppel 

in labour arbitration, would reasonableness review mean that anything goes I 

would suggest that an arbitrator’s elaboration of the requirements of estoppel 

would be reasonable if these requirements seek to achieve the core purpose of 

estoppels – “to prevent a party from acting in a manner inconsistent with an 

express or implied promise when to do so would be unconscionable” 67 – and do 

so in a manner consistent with sound industrial relations policy as applied to the 

specific circumstances of the parties to the grievance. 68 

In my view, the Court of Appeal’s expansive interpretation of the concept of 

the “question of general law of central importance” undermines the successful 

operation of labour arbitration as an autonomous legal system. Professor Arthurs 

notes that when parties who are governed by the legal norms of an administrative 

regime (such as the system of labour arbitration) decline to submit to its norms 

and assert their rights under the general law through an application for judicial 

review, there must be a reconciliation of the special legal system with the formal 

legal system. The courts must determine “whether and to what extent the norms 

of the special regime should be vindicated”: 

If those who are involved in it can simply exit as they please, the reliance interests of others, 

the survival of the group, or the effectiveness of the regulatory regime will be jeopardized. If 

they cannot exit, they may be denied rights available to other citizens. If “ordinary” courts 

66 

67 

68 

Toronto (City), supra note 5 at para 73 [emphasis added]. 

See Hickling, supra note 61 at 213. 

I would argue that Arbitrator Pineau’s award in Sterling Place, supra note 60, is a good example of 

a decision that meets such a standard.


try to enforce the norms of the special regime, they may misconstrue them; if they do not, 

they may subvert them. If administrative action is reviewed, the economy and integrity of 

the regime may be compromised; if not, it may overreach itself. 69 

The concept of jurisdiction, in Professor Arthurs’ view, is mediated between 

the ordinary law and “special laws of the administration.” 70 In the labour relations 

context, for example, the norms developed by labour arbitrators could be 

vindicated by courts so long as they fell within the arbitrators’ jurisdiction. 

Unfortunately, the malleability of the concept of jurisdiction and its 

interpretation by courts to facilitate judicial interference in the administration 

undermined its usefulness as a mediating principle. As a result, the Supreme 

Court has more recently sought to circumscribe the category of jurisdictional 

questions attracting correctness review. 71 Nor-Man signals that the concept of 

“questions of general law of importance to the legal system as a whole” may be 

emerging as another mediating principle. 72 

How then should this concept be defined This question is not new. In an 

article published in 1974, which might usefully provide guidance today, Professor 

Peter Hogg attempted to describe the circumstances in which courts should 

intervene in agency decision-making. He observed that: 

The very qualities which make the Agency well-suited to determine questions within its 

area of specialization may lead it to overlook or underestimate general values which are 

fundamental to the legal order as a whole. The generalist Court is ideally suited to check 

the specialist Agency at the point where these general values are threatened. 73 

Professor Hogg narrowly defined the catalogue of general values fundamental 

to the legal order as a whole that courts must enforce in their role as “guarantors 

of the integrity of the legal system”. 74 “First and foremost among these general 

values”, he noted, were those “associated with the Canadian commitment to 

democracy based on the English parliamentary system.” 75 The principle of validity 

– that official actions must be authorized by laws made by a freely elected 

legislature – was one such value. It required the courts to enforce a narrow 

concept of jurisdiction by striking down agency decisions over matters not 

assigned to them for decision – i.e. decisions “completely unauthorized by 

69 

70 

71 

72 

73 

74 

75 

Harry W Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century 

England (University of Toronto Press: Toronto, 1985). 

Taggart, supra note 54 at 261; Arthurs, supra note 69 at 208. 

Dunsmuir, supra note 6 at para 59: “these questions will be narrow.” 

It is noteworthy that the definition by arbitrators of the requirements of estoppel has also been 

described by some courts as a question going to the arbitrators’ jurisdiction: see Otis Canada, 

supra note 35 at para 30. 

Peter W. Hogg, “Judicial Review in Canada: How Much Do We Need It” (1974) 26 Admin L 

Rev 337 at 344 [emphasis added]. 

Ibid at 345. 

Ibid at 344.


statute”. 76 By contrast, an administrative decision that bore “some relationship to 

statutory power should be permitted to prevail so long as it [was] a reasonable 

interpretation of the power”, taking into account the decision-maker’s reasons for 

decision and their consistency with the civil libertarian or proprietary values 

asserted by individuals affected by the decision. 77 Professor Hogg also placed civil 

libertarian values basic to Canada’s legal order, such as freedom of association 

and procedural fairness 78 in the catalogue of “general values”. 

Against this framework, an arbitrator’s view of the circumstances in which it 

would be unfair to a union or employer to enforce the strict terms of a collective 

agreement does not engage the “integrity of the legal system”, to use Professor 

Hogg’s words. In comparison, an arbitrator’s refusal to give effect to a court’s final 

and authoritative finding regarding a grievor’s criminal responsibility does engage 

the integrity of the legal system by undermining public confidence in the 

administration of justice. 

Professor Arthurs once remarked that the development of “responsible 

industrial self-government” by labour, management, and other actors within the 

world of industry would require restraint on the part of judges and lawmakers. 79 

The survival and successful operation of autonomous legal regimes, including 

labour arbitration, will depend on the adoption by reviewing courts of a narrow 

interpretation of the concepts of jurisdictional question and “question of general 

law”, perhaps not unlike that proposed by Professor Hogg. Nor-Man represents a 

golden opportunity for the Supreme Court to provide guidance on this important 

question. 

IV. 

POSTSCRIPT 

On December 2, 2011, the Supreme Court allowed the employer’s appeal 

from the Manitoba Court of Appeal’s judgment in Nor-Man. 80 In a key part of its 

76 

77 

78 

79 

80 

Ibid at 355. 

Ibid. 

Harry Arthurs observed that in applying general legal standards, such as natural justice, in their 

sphere of activity, tribunals “should be presumed to be responding to the exigencies of the 

context, unless there is persuasive evidence to the contrary”: Harry W Arthurs, “Rethinking 

Administrative Law: A Slightly Dicey Business” (1979) 17 Osgoode Hall LJ 1 at 39. In other 

words, reviewing courts should show deference to a tribunal’s judgment on matters such as the 

nature of notice to be provided to persons affected by a decision, as they require familiarity with 

the practical realities within which the tribunal operates. In Baker v Canada (Minister of Citizenship 

and Immigration), [1999] 2 SCR 817 at 840, the Supreme Court incorporated a measure of 

deference in determining what procedures are required by procedural fairness by requiring courts 

to take into account agencies’ choice of procedure as one of several factors in the analysis. 

Arthurs, Industrial Citizenship, supra note 4 at 830. 

Nor-Man Health Authority Inc. v Manitoba Association of Health Care Professionals, 2011 SCC 59 

[Nor-Man SCC].


judgment, the Supreme Court disagreed with the Court of Appeal’s finding that 

the arbitrator’s imposition of an estoppel fell outside of his expertise and was 

reviewable on a correctness standard: 

Common law and equitable doctrines emanate from the courts. But it hardly 

follows that arbitrators lack either the legal authority or the expertise required to 

adapt and apply them in a manner more appropriate to the arbitration of disputes 

and grievances in a labour relations context. 

On the contrary, labour arbitrators are authorized by their broad statutory 

and contractual mandates – and well equipped by their expertise – to adapt the 

legal and equitable doctrines they find relevant within the contained sphere of 

arbitral creativity. To this end, they may properly develop doctrines and fashion 

remedies appropriate in their field, drawing inspiration from general legal 

principles, the objectives and purposes of the statutory scheme, the principles of 

labour relations, the nature of the collective bargaining process, and the factual 

matrix of the grievances of which they are seized. 81 

According to the Court, arbitrators’ broad mandate flowed from two main 

sources. First, section 121 of the Manitoba Labour Relations Act instructed 

arbitrators to consider the “real substance of the matter in dispute between the 

parties” and provided that they were “not bound by a strict legal interpretation” of 

this matter. Second, arbitrators could fulfill their “distinctive role in fostering 

peace in industrial relations” only if they were afforded “the flexibility to craft 

appropriate remedial doctrines” that could “respond to the exigencies of the 

employer-employee relationship.” 82 While urging reviewing courts to “remain alive 

to these distinctive features of the collective bargaining relationship, and reserve 

to arbitrators the right to craft labour specific remedial doctrines”, the Supreme 

Court warned that “the domain reserved to arbitral discretion is by no means 

boundless”: 

An arbitral award that flexes a common law or equitable principle in a manner that does 

not reasonably respond to the distinctive nature of labour relations necessarily remains 

subject to judicial review for its reasonableness. 83 

In the end, the Supreme Court held that the arbitrator’s decision was 

reasonable. In transparent, intelligible and coherent reasons, the arbitrator had 

“adapted and applied the equitable doctrine of estoppel in a manner reasonably 

consistent with the objectives and purposes of the [Labour Relations Act], the 

principles of labour relations, the nature of the collective bargaining process, and 

the factual matrix of [the] grievance.” 84 

81 Ibid at paras 44-45. 



84 Ibid at para 60.

Gladue : Beyond Myth and Towards 

Implementation in Manitoba * 

D A V I D M I L W A R D * * A N D 

D E B R A P A R K E S * * * 

I. 

INTRODUCTION 

T 

wenty years have passed since Justices Sinclair and Hamilton concluded the 

groundbreaking Report of the Aboriginal Justice Inquiry of Manitoba, 1 which 

detailed some of the systemic reasons for the over-incarceration of 

Aboriginal peoples in Manitoba prisons and jails and put forward a number of 

recommendations to respond to the crisis. While there has been some limited 

progress, the fact remains that the incarceration of Aboriginal people in grossly 

disproportionate numbers has become worse, not better. A recent statistical 

analysis reveals that Aboriginal persons have consistently comprised 17 to 19% of 

all adult admissions to Canadian federal penitentiaries for the past decade, even 

though Indigenous peoples represent only 3% of the Canadian population. 2 The 

statistics are even more shocking when it comes to admission to provincial jails. In 

2007/2008, Indigenous persons comprised 21% of all admissions to provincial 

* 

** 

*** 

1 

2 

The authors are grateful for the support for this research provided by the Social Justice and 

Human Rights Research Project. Parts of this paper were presented at the symposium 

“Implementing Gladue: Law & Policy 20 Years After the Aboriginal Justice Inquiry”. The authors 

thank the editors of the MLJ, along with the anonymous reviewers, for their comments on an 

earlier draft of this article. 

Assistant Professor, Faculty of Law, University of Manitoba. 

Associate Professor, Faculty of Law, University of Manitoba. 

Aboriginal Justice Inquiry of Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba by 

Murray Sinclair & Alvin Hamilton (Winnipeg: Aboriginal Justice Inquiry, 1991) [“AJI Report”]. 

After the AJI Report gathered dust on shelves in the 1990s, Paul Chartrand and Wendy 

Whitecloud co-chaired the Aboriginal Justice Implementation Commission, which made a 

number of other concrete recommendations for change in the criminal justice system and other 

systems (such as, for example, child welfare) which were also aimed at meaningfully addressing 

the crisis. See Final Report of the Aboriginal Justice Implementation Commission by Paul Chartrand & 

Wendy Whitecloud, Commissioners, (Winnipeg: Government of Manitoba, 2001). Limited 

progress has been achieved in implementing those changes. 

Samuel Perreault, “The Incarceration of Aboriginal People in Adult Correctional Services”, 

(2009) 29:3 Juristat at 20.

Gladue: Beyond Myth 85 

jail in Newfoundland and British Columbia, 35% in Alberta, 69% in Manitoba, 

76% in the Yukon, 81% in Saskatchewan, and 86% in the Northwest Territories. 3 

One policy change that was introduced in response to this overrepresentation 

relates to the sentencing of Aboriginal people convicted of crimes. 

In 1996, Parliament added a new section to the Criminal Code, which reads in 

part: 

A court that imposes a sentence shall also take into consideration the following principles: 

… 

(e) all available sanctions other than imprisonment that are reasonable in the circumstances 

should be considered for all offenders, with particular attention to the circumstances of 

Aboriginal offenders. 4 

The first Supreme Court of Canada case to consider s 718.2(e) involved 

Jamie Gladue, 5 a young Indigenous woman who pled guilty to manslaughter in 

relation to the stabbing death of her common law partner, Reuben Beaver. 6 The 

Court held this provision was enacted in response to alarming evidence that 

Indigenous peoples were incarcerated disproportionately to non-Indigenous 

people in Canada. 7 Section 718.2(e) is thus a remedial provision, enacted 

specifically to oblige the judiciary to do what is within their power to reduce the 

over-incarceration of Indigenous people and to seek reasonable alternatives for 

Indigenous people who come before them. 8 Justice Cory added: 

It is often the case that neither aboriginal offenders nor their communities are well served 

by incarcerating offenders, particularly for less serious or non-violent offences. Where these 

sanctions are reasonable in the circumstances, they should be implemented. In all 

3 

4 

5 

6 

7 

8 

Ibid at 21. 

Criminal Code of Canada, RSC 1985, c C-46, s 718.2(e). 

R v Gladue, [1999] 1 SCR 688, 171 DLR (4th) 385. 

The Court used this case as a lens to interpret s 718.2(e), provided some guidance on the 

information that should come before courts sentencing Aboriginal people, and was critical of the 

lack of engagement with s 718.2(e) and the circumstances of Jamie Gladue as an Aboriginal 

person at her sentencing hearing. However, her three year sentence was upheld. For further 

discussion of the circumstance in Gladue and a critical analysis of the failure of the courts to 

consider the intersection of gender and race in sentencing Aboriginal women, see Angela 

Cameron, “R v Gladue: Sentencing and the Gendered Impacts of Colonialism” in John D Whyte, 

ed, Moving Toward Justice: Legal Traditions and Aboriginal Justice (Saskatoon, Purich Publishing, 

2008) at 160 [Cameron, “R v Gladue”]. 

R v Gladue, supra note 5 at para 58-65; Justice Cory cited some statistics on over-representation: 

“By 1997, aboriginal peoples constituted closer to 3 percent of the population of Canada and 

amounted to 12 percent of all federal inmates…The situation continues to be particularly 

worrisome in Manitoba, where in 1995-96 they made up 55 percent of admissions to provincial 

correctional facilities, and in Saskatchewan, where they made up 72 percent of admissions. A 

similar, albeit less drastic situation prevails in Alberta and British Columbia …” (at para 58). As 

noted earlier, the rate of over-representation has increased in the years since Gladue was decided. 

Ibid at para 64.


instances, it is appropriate to attempt to craft the sentencing process and the sanctions 

imposed in accordance with the aboriginal perspective. 9 

A judge must take into account the background and systemic factors that 

bring Indigenous people into contact with the justice system when determining 

sentence. Justice Cory described these factors as follows: 

The background factors which figure prominently in the causation of crime by aboriginal 

offenders are by now well known. Years of dislocation and economic development have 

translated, for many aboriginal peoples, into low incomes, high unemployment, lack of 

opportunities and options, lack or irrelevance of education, substance abuse, loneliness, 

and community fragmentation. 10 

The Court spoke quite openly of systemic racism and the way that it 

translates into disadvantage at various stages of the criminal justice system. All of 

this was very promising; yet, the crisis of Aboriginal over-incarceration in Canada 

has continued unabated in the years since Gladue was decided. 

There are a number of different explanations that might be offered for why 

this state of affairs persists. From our vantage point in Manitoba, a province that 

produced the conditions that led to the AJI report, and that has one of the 

highest rates of Aboriginal incarceration in Canada, we offer a partial explanation 

centering on what we see as a number of persistent “Gladue myths” 11 that operate 

to limit the remedial impact of s 718.2(e) and to undermine the promise of 

Gladue. In the sections that follow, we briefly sketch out the situation in Manitoba 

with respect to Gladue implementation, before moving on to outline some Gladue 

myths and the reality or complexity that we see lying beneath them. We will focus 

on three myths: (1) that Gladue does not and should not make a difference in 

sentencing for serious offences; (2) that prison works (for Aboriginal people); and 

(3) that Aboriginal over-representation is an intractable problem that is too 

complex to be dealt with through Gladue. We will also offer our thoughts on some 

of the challenges of pursuing justice for Indigenous peoples in the current context 

and note some positive developments and ways forward. 

II. 

GLADUE IN MANITOBA 

It was in Manitoba that the problems faced by Aboriginal peoples with the 

criminal justice system were brought to national attention, when the murders of 

Helen Betty Osborne and JJ Harper provoked a public inquiry. 12 The report of 

9 

10 

11 

12 



One meaning of “myth” as defined in the Oxford Dictionary is “a widely held but false idea or 

belief.” We use the term myth here to refer to misconceptions or assumptions about s 718.2(e) 

and about Gladue that limit its application and impact. 

AJI Report, supra note 1, vol I, ch I.


that inquiry made many recommendations for systemic reform, some of which 

resemble the principles of the Gladue decision, including: 

that incarceration should be avoided for Aboriginal people, except where 

they pose a danger to the public, or the gravity of the offence leaves no 

other option, or where the individual has a history of disregarding past 

court orders; 

that the Manitoba Court of Appeal should encourage more creativity by 

sentencing judges in searching for non-custodial alternatives for 

Aboriginal people; and 

that sentencing judges should invite Aboriginal communities to express 

their viewpoints on an appropriate sentence. 13 

In Gladue, the Supreme Court made it clear that s 718.2(e) requires a 

“different methodology” for assessing a fit sentence for an Aboriginal person. 14 

Justice Cory in Gladue said that a judge must consider the role of systemic factors 

in bringing a particular Aboriginal accused before the court. 15 A judge is obligated 

to obtain that information with the assistance of counsel, or through probation 

officers with pre-sentence reports, or through other means. A judge must also 

obtain information on community resources and treatment options that may 

provide alternatives to incarceration. 16 In R v Kakekagamick, the Ontario Court of 

Appeal noted pointedly that Crown prosecutors and defence counsel alike are 

under a positive duty to provide information and submissions on Gladue factors 

where appropriate. 17 The presiding judge, even when faced with an inadequate 

report or inadequate assistance from counsel, is still obliged to try to obtain the 

information necessary for a meaningful consideration of Gladue. 18 

In Manitoba, where a majority of those accused and sentenced are Aboriginal 

people, Gladue has not been implemented in a systemic way. 19 Despite 

admonitions by the Supreme Court and other appellate courts that judges and 

lawyers are obliged to facilitate the gathering of information on the circumstances 

of Aboriginal people and on appropriate and available rehabilitative resources, 

there is no dedicated program in place in Manitoba to support this endeavour. 

Currently, probation officers employed by Manitoba Justice to write pre-sentence 

13 

14 

15 

16 

17 

18 

19 

Ibid at App I. 

R v Wells, 2000 SCC 10, [2000] 1 SCR 207 at para 44. 

Gladue, supra note 5 at para 69. 

Ibid at para 83-84. 

R v Kakekagamick (2006), 81 OR (3d) 664 at para 53, 211 CCC (3d) 289. With respect to defence 

counsel’s obligations, Legal Aid Ontario has taken steps to develop competence among defence 

lawyers to represent Aboriginal clients in criminal matters, including through the 

implementation of “Gladue Panel Standards”. See “Fact Sheets” online: Legal Aid Ontario 

. 


See generally the presentations by various speakers at the symposium, “Implementing Gladue”, 

supra note **.


reports (PSRs) will, on the request of defence counsel, add a “Gladue factors” 

section to a standard PSR. By way of contrast, a number of dedicated Aboriginal 

Persons Courts in Ontario have programs in place to facilitate the production of 

Gladue reports. One of a number of staff caseworkers from Aboriginal Legal 

Services of Toronto (ALST) will assist the court at the request of the judge, 

defence counsel, or the Crown Attorney. The caseworker will investigate the 

background and life circumstances of the Indigenous person, and then prepare a 

report detailing that information, and may also provide recommendations for a 

sentence. 20 

Research conducted at the national level indicates that probation officers 

preparing PSRs generally spend one to two and one half hours interviewing 

“collaterals”, including family members. 21 A full Gladue report requires a more 

substantial period of preparation, both because of the greater number of persons 

to be interviewed, and also the information that has to be obtained. Individual 

interviews often have to be both in-person and lengthier due to the nature of the 

information being gathered, but also to establish a meaningful rapport with 

members of the Aboriginal community. A standard pre-sentence report tends to 

limit the background information to interviews with the accused’s immediate 

family, and possibly an employer or a select few other persons close to the 

accused. A meaningful Gladue report requires much more extensive interviewing 

to understand and locate the accused’s background in the context of systemic 

factors facing Aboriginal people generally. Persons who should be interviewed will 

often include not just the immediate family, but the accused’s broader relations, 

as well as other members of the community. A reason for this is to impress upon 

the court that what is troubling the accused may in fact be troubling the 

community at large as well. Interviews with the accused’s relations must also reach 

back to previous generations so that the accused’s background can be connected 

to historical phenomena that have acted as oppressive forces on Aboriginal 

peoples generally, such as residential schools or the “Sixties Scoop”. Elders or 

other culturally important members of the community may also have to be 

interviewed to obtain information about what may be troubling the accused, how 

the community may want to approach the problem, and what options may be 

available for dealing with the problem. 

Research by sociologists Kelly Hannah-Moffat and Paula Maurutto, 

comparing Gladue reports prepared by Aboriginal caseworkers from ALST to 

PSRs, even those incorporating “Gladue factors,” sheds light on the problems with 

20 

21 

“Aboriginal Persons Court (“Gladue Court”)” online: Aboriginal Legal Services of Toronto 

. 

Public Safety Canada, Presentence Reports in Canada 2005-03 by James Bonta et al, (Ottawa: 

Minister of Public Safety and Emergency Preparedness, 2005) at 22.


the “add Gladue and stir” approach utilized in jurisdictions such as Manitoba. 22 

The fundamental purpose and governing logic of a PSR is to provide a risk 

assessment to the court, increasingly incorporating an actuarial criminogenic risk 

instrument or tool. As Hannah-Moffat and Maurutto point out, there is a 

fundamental contradiction between the standard PSR focus on risk assessments 

and the purpose of a Gladue report “to provide the court with culturally situated 

information which places the offender in a broader social-historical group 

context… and reframe[s] the offender’s risk/need by holistically positioning the 

individual as part of a broader community and as a product of many 

experiences.” 23 As such, when “Gladue factors” are tacked on to a PSR, the “effect 

is to situate risk within a broader actuarial framework with no clear direction on 

how to reconcile the embedded contradictions,” which may have unintended 

discriminatory consequences by drawing the probation officer’s attention to race 

and risk factors. 24 

Not only are the approach and methodology for Gladue reports different from 

PSRs, but it is intended that Gladue reports will consider options and include 

recommendations that a standard PSR would not contemplate. For example, if an 

accused has previously been through probation or a conditional sentence for a 

similar offence, it would be likely that a PSR would assess the accused as unfit for 

another supervisory sentence. For a Gladue report, an important question to ask is 

whether the accused has ever had access to rehabilitative services that are 

grounded in Aboriginal culture and spirituality. Convincing evidence has 

accumulated demonstrating that Aboriginal people respond better to culturally 

appropriate rehabilitative services in comparison to mainstream rehabilitative 

services. 25 One issue that a Gladue report must address is whether the accused 

22 

23 

24 

25 

Kelly Hannah-Moffat and Paula Maurutto, “Re-Contextualizing Pre-Sentence Reports: Risk and 

Race,” (2010) 12 Punishment and Society 262. 

Ibid at 274. 

Ibid at 275. 

Evelyn Zellerer, “Culturally Competent Programs: The First Family Violence Program for 

Aboriginal Men in Prison” (2003) 83:2 The Prison Journal 171; Correctional Service of Canada, 

The Relevance of a Cultural Adaptation for Aboriginals of the Reintegration Potential 

Reassessment Scale (RPRS) by Raymond Sioui et al (Ottawa: Correctional Service of Canada, 

2001); Doug Heckbert & Douglas Turkington, “Turning Points: Factors Related to the 

Successful Reintegration of Aboriginal Offenders” (2002) 14:3 Forum on Correctional Research 

55 at 56; Marianne O Nielsen, “Canadian Aboriginal Healing Lodges: A Model for the United 

States” (2003) 83:1 The Prison Journal 67; Correctional Service of Canada, Exploring the Profiles 

of Aboriginal Sexual Offenders: Contrasting Aboriginal and Non-Aboriginal Sexual Offenders to Determine 

Unique Client Characteristics and Potential Implications for Sex Offender Assessment and Treatment 

Strategies by Lawrence A Ellerby & Paula MacPherson (Ottawa: Correctional Service of Canada, 

2002); Chassidy Pachula et al, “Using Traditional Spirituality to Reduce Domestic Violence 

Within Aboriginal Communities” (2010) 16:1 Journal of Alternative and Complementary 

Medicine 89.


could benefit from culturally appropriate services where standardized approaches 

have not worked in the past. 

Members of the Manitoba defence bar cite a lack of adequate legal aid 

funding for the preparation of Gladue submissions, as well as the often boilerplate 

nature of the “Gladue assessment” portion of PSRs that are currently available 

through Probation Services as significant barriers to their ability to make fulsome 

Gladue submissions on behalf of Aboriginal clients. 26 We understand that in a 

majority of cases the practice in Manitoba of adding a Gladue section to a 

standard PSR involves “cutting and pasting” generic references about Aboriginal 

people to a collection of general Gladue factors, or descriptions of problems in 

specific Aboriginal communities, from past report precedents and templates. In 

our view, this does not go far enough in setting out the kind of information that 

Gladue requires, such as the problems that may exist in an accused's community at 

a given point in time, what role Gladue factors have had in bringing the specific 

Aboriginal accused before the court, specific culturally-based resources that may 

be available for the accused, and the prospects for the accused of responding to 

those resources. This kind of information can be obtained by a more fulsome 

investigation and interviewing process, and then presenting that information in a 

Gladue report. 

The lack (or inadequacy) of Gladue reports to assist judges in sentencing 

Aboriginal people in Manitoba has been a source of frustration for some judges. 

For example, in a 2005 decision, Chief Justice Scott expressed concern that 

Gladue reports had not been submitted in relation to two Aboriginal people 

(Thomas and Flett) being sentenced for manslaughter. 27 He said: 

In such circumstances, it is surprising that what has come to be known as a Gladue brief 

was not proposed. (I add that the time and place to do this is during the hearing before the 

sentencing judge and not for the first time at the appellate level.) While the sentencing 

judge was assisted by extensive memoranda composed by the appellant Flett (as well as the 

victim impact statement from the family of the deceased), and was clearly alive to the 

situation of the appellants as “aboriginal offenders,” I cannot help but conclude that all 

would have been better served in this instance had a thorough and comprehensive Gladue 

brief been initiated by counsel and presented to the court. All those who are involved in 

the process of sentencing aboriginal offenders need to do better to ensure that the 

Supreme Court’s expectations in Gladue are fulfilled. 28 

Two years later, in R v Irvine, Judge Lismer expressed frustration as follows: 

While invited to address the Gladue principle in R v Gladue, [1999] 1 SCR 688, the court 

was not provided with any case specific information either in submission or in the PSR 

except that the PSR, on page 4, notes that the accused's mother is aboriginal and has ties to 

26 

27 

28 

Personal communication with Darren Sawchuk, President of the Criminal Defence Lawyers 

Association (Manitoba), 15 August 2011. 

R v Thomas, [2005] MBCA 61, 195 Man R (2d) 36. 

Ibid at para 22 (citations omitted).


the Brokenhead First Nations Reserve, although she did not grow up there. The accused 

also did not grow up on a reserve but according to page 10 of the pre-sentence report, he is 

interested in connecting with his aboriginal roots. There is no information before the court 

of any unique or background factors that may have played a part in bringing the accused 

before the court. 29 

More recently, in a 2010 decision, Justice McKelvey noted that no report was 

available to provide insight into the role of systemic factors behind a 

manslaughter case involving an Aboriginal accused. 30 However, she opined that 

Gladue would not likely affect the sentence for a serious offence like 

manslaughter, which would involve similar sentences for both Aboriginal and 

non-Aboriginal people alike. In our view, the idea that Gladue does not apply or 

will generally not make a difference in sentencing for serious offences is one of 

the myths that has contributed to the limited implementation of Gladue. We note 

that concerns about the lack of Gladue reports have also been expressed by judges 

in other jurisdictions, 31 such as the Yukon, 32 where Aboriginal people 

predominate in the criminal courts. 33 

A sociology master’s thesis by Rana McDonald at the University of Manitoba, 

which included interviews with several defence lawyers in Manitoba, revealed that 

they cited s 718.2(e) and Gladue infrequently for various reasons. 34 Some of those 

reasons, which we suggest are pervasive “Gladue myths,” convinced lawyers that 

Gladue should not even enter into consideration as to how to represent their 

Aboriginal clients. These included: 

1) A perception that Gladue extended a sentencing discount that was 

inconsistent with the legal system's emphasis on equality. 35 

29 

30 

31 

32 

33 

34 

35 

R v Irvine, [2007] MJ No 102 at para 22 (available on QL) (Prov Ct). Our review of reported 

Manitoba cases turned up many more which indicated that the accused was an Aboriginal person 

but where a standard pre-sentencing report was relied on, including R v Travers (2001), 16 MVR 

(4th) 113, 2001 CarswellMan 227 (WL Can) (Prov Ct); R v LEM, [2001] MJ No 62, 49 WCB 

(2d) 233 (Prov Ct); R v Armstrong (2004), 189 Man R (2d) 162, 66 WCB (2d) 726 (Prov Ct); R v 

Monias 2004 MBCA 55, 184 Man R (2d) 93; R v Renschler, [2005] MJ No 542, 2005 CarswellMan 

546 (WL Can) (Prov Ct); R v Bussidor (2006), 235 Man R (2d) 177, 2006 CarswellMan 876 (WL 

Can) (Prov Ct); R v Hall, 2007 MBPC 27, 217 Man R (2d) 185; R v Bird, 2008 MBCA 41, 225 

Man R (2d) 304; R v Scott, 2009 MBQB 300, 246 Man R (2d) 297; R v Audy, 2010 MBPC 55, 

[2011] MJ No 13; R v Guimond, 2010 MBQB 1, 249 Man R (2d) 75; and R v WRB, 2010 MBQB 

102, 253 Man R (2d) 207. 

R v McKay (2010), 2010 MBQB 56, 249 Man R (2d) 287. 

For a study of the limited implementation of Gladue in Quebec, see Alana Klein, “Gladue in 

Quebec” (2009) 54 Crim LQ 506. 

See e.g. R v Smith, 2010 YKTC 67 at para 24, 2010 CarswellYukon 72 (WL Can). 

See also R v Eegeesiak, 2010 NUCJ 10, [2010] 3 CNLR 166 (Nu Ct J) 

Rana McDonald, The Discord Between Policy and Practice: Defence Lawyers' use of Section 718.2(e) and 

Gladue (Masters in Sociology Thesis, University of Manitoba, 2008) [unpublished], online: 

. 

Ibid at 85-92.


2) An uncertainty as to which clients might be Aboriginal aside from those 

living on First Nations reserves. 36 

3) A preference for a “race-neutral” approach to advocacy. 37 

4) A belief that the Gladue factors described mitigating factors for many 

offenders irrespective of race and were not necessarily unique to Aboriginal 

offenders. 38 

5) A belief that the seriousness or violent nature of the offence, and/or the 

presence of significant aggravating factors, especially a prior record for the same 

kind of offence for which the accused is being sentenced, will denude Gladue of 

any meaningful practical value during a sentencing hearing. 39 

Even when the defence lawyers in McDonald’s study thought that Gladue had 

potential applicability to their clients, they had concerns about practical utility 

should they attempt to raise Gladue in court. These included: 

1) Some lawyers were not convinced that Gladue could be an effective 

“bargaining chip” during plea bargaining with the Crown. 40 

2) Some were concerned that seeing through preparation of Gladue 

submissions and information for the Court's consideration would unduly extend 

the amount of time their clients spent in remand custody. 41 

3) At the time of the study, some rehabilitative services grounded in 

Aboriginal cultures were available in Winnipeg. These include, for example, the 

Metis Justice Strategy, the Interlake Peacemakers Project, and the Onashowewin 

diversion program in Winnipeg. These programs had limited capacity, however, 

and this often convinced the defence lawyers that they could not make 

meaningful submissions for non-custodial sentences. 42 

It appears that there are also economic disincentives to lawyers in Manitoba 

making fulsome Gladue submissions on behalf of their clients, particularly those 

related to legal aid funding. By way of background, there is considerable empirical 

evidence suggesting that guilty pleas by accused persons who are factually innocent 

may be a very serious and pervasive problem. 43 Christopher Sherrin argues that 

36 

37 

38 

39 

40 

41 

42 

43 



Ibid at 91-94, 

Ibid at 95-103. 

Ibid at 105-19. 

Ibid at 109-114. 

Ibid at 114-120. 

At least 20 instances of wrongful convictions stemming from a guilty plea were documented in 

Samuel R Gross et al, “Exonerations In The United States 1989 Through 2003” (2005) 95 J 

Crim L & Criminology 523 at 533-536. Twenty-three percent of accused persons who had plead 

guilty and were interviewed by Richard V Ericson and Patricia M Baranek maintained their 

innocence: see Richard V Ericson & Patricia M Baranek, The Ordering of Justice: A Study of Accused 

Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982) at 158. 

Other researchers have found significant numbers of people who have pled guilty while


part of this problem is a lack of monetary incentive to go ahead with trials, and 

this can often lead to defence lawyers pressuring clients to plead guilty irrespective 

of the actual merits of the prosecution's case. 44 Sherrin thus recommends 

increasing available legal aid tariffs so that defence lawyers have the incentive to 

properly assert their clients' innocence, especially when the case merits it. 45 The 

essence of this argument can be extended to Gladue. The legal aid tariffs in 

Manitoba for cases resolved by guilty pleas are set based on the category of 

offence. A tariff of $1,250 is provided for a sentencing hearing for aggravated 

sexual assault, culpable homicide offences, attempt murder, and organized crime 

offences. A tariff of $860 is provided for a broad category of either indictable 

offences or hybrid offences. A tariff of $450 is provided for all other offences. 46 It 

will often be considerably more work for a lawyer to properly make use of Gladue 

in comparison to other cases resolved by guilty plea, as MacDonald's thesis hints. 

It will often require more research, more preparatory work, advocating for the 

production of a Gladue report, and making more extensive submissions based on 

the Gladue factors and their role in an individual client's case. We are aware that 

Legal Aid Manitoba is stretched very thin to meet the growing needs for 

representation in criminal and some civil matters and that inadequate access to 

justice is a systemic problem across Canada. 47 However, we suggest that adequately 

funding lawyers to make full answer and defence and to make meaningful 

submissions on sentencing are matters that have Charter and Aboriginal rights 

dimensions 48 and, as such, should be prioritized in the allocation of funding. 

44 

45 

46 

47 

48 

maintaining their innocence: forty-three percent in John Baldwin & Michael McConville, 

Negotiated Justice: Pressures to Plead Guilty (London: Martin Robertson, 1977) at 62-63; eighteen 

percent in Anthony Bottoms and John McClean, Defendants in the Criminal Process (London: 

Routledge & Kegan Paul, 1976) at 120; forty-four percent in Susanne Dell, Silent in Court 

(London: G. Bell & Sons, 1971) at 30-31; over fifty-one percent in Abraham S Blumberg, “The 

Practice of Law as Confidence Game” (1967) 1:2 Law & Soc'y Rev 15 at 33-35. 

Christopher Sherrin, “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 

1 at 19; see also Andrew D Leipold, “How the Pretrial Process Contributes to Wrongful 

Convictions” (2005) 42 Am Crim L Rev 1123 at 1154. 

Sherrin, supra note 44 at 20. 

Legal Aid Manitoba Act, CCSM c L105, Part 2. 

For example, in a recent address to the Canadian Bar Association, Chief Justice McLachlin 

stated that “[a]ccess to justice is the greatest challenge facing the Canadian justice system.” The 

Right Honourable Beverley McLachlin, Chief Justice of Canada, Address (Remarks to the 

Council of the Canadian Bar Association, delivered at the Canadian Legal Conference, Halifax, 

13 August 2011), [unpublished]. 

Larry Chartrand has argued that section 25 of the Canadian Charter of Rights and Freedoms, which 

protects Aboriginal and treaty rights from derogation or abrogation by other Charter rights 

should be interpreted as providing constitutional support for Aboriginal rights to particular 

consideration on sentencing as provided in the common law and s 718.2(e) of the Criminal Code. 

Larry Chartrand, “Section 25 of the Charter and Aboriginal Sentencing,” (Aboriginal Criminal 

Justice Post-Gladue lecture, delivered at the Third National Conference, 30 April 2011) 

[unpublished].


One would think that in Manitoba of all provinces there would be some 

impetus towards establishing an enduring program or process with a mandate to 

enable judges to apply s 718.2(e) and Gladue, yet little progress has been made. 49 It 

seems that the sheer number of Aboriginal people in the system – the profound 

nature of the overrepresentation itself – causes many to question the value of a 

Gladue program that would, at least to start, not be comprehensive in its 

coverage. 50 However, we suggest that the magnitude of the problem should be a 

catalyst for, rather than a barrier to, innovation. The establishment of a Gladue 

program (whether a dedicated court or another model that includes Indigenous 

staff workers writing Gladue reports on an ongoing basis) could go some distance 

towards addressing defence lawyers’ problems with making use of Gladue, since it 

would signal and support the principle that Gladue submissions for Aboriginal 

people are expected, rather than being optional. 

With this context in mind, we will now focus on just three of the myths that 

we see underlying reservations about Gladue and in the case law more generally. 

These are myths that can come into play even when Gladue information is made 

available for a court's consideration. These are: (1) that Gladue does not and 

should not make a difference in sentencing for serious offences; (2) that prison 

works (for Aboriginal people); and (3) that Aboriginal over-representation is an 

intractable problem that is too complex to be dealt with through Gladue. 51 We will 

briefly discuss each in turn. 

III. 

MYTH #1: GLADUE DOES NOT AND SHOULD NOT MAKE A 

DIFFERENCE IN SENTENCING FOR SERIOUS OFFENCES 

There are at least two ways that this myth manifests: one is the idea that 

principles of sentencing (denunciation, retribution, protection of society) take 

precedence in cases of violence and therefore Gladue and its principles do not 

have any “work” to do, even where the Indigenous person before the court is 

considered a low risk to reoffend. A related myth is that applying Gladue means 

49 

50 

51 

We note, however, that following the “Implementing Gladue” symposium held at the Faculty of 

Law, University of Manitoba in March 2011, supra note **, members of the defence bar, Crown, 

and Provincial Court bench have shown interest in a Robson Hall initiative to develop materials 

such as a “Gladue Handbook” for judges, lawyers, community advocates, and policy makers. 

For example, Chief Judge Ken Champagne of the Provincial Court of Manitoba expressed 

concern at the “Implementing Gladue” symposium that a Gladue court (perhaps located in 

Winnipeg) would not assist Aboriginal people who are sentenced in northern communities. 

It is beyond the scope of this paper to address other myths such as, for example, the pervasive 

idea that s 718.2(e) provides an unfair sentencing “discount” to Aboriginal people. On this latter 

subject, see the articles published in the Colloquy on “Empty Promises: Parliament, the Supreme 

Court, and the Sentencing of Aboriginal Offenders” (2002) 65 Sask L Rev 1.


that violence – including violence against Aboriginal women and children – is not 

taken seriously. We will examine both aspects in turn. 

A. 

Offence Bifurcation and Sentencing Principles 

With respect to the first, sections 718 and 718.1 of the Criminal Code 

provide: 

718. The fundamental purpose of sentencing is to contribute, along with crime prevention 

initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by 

imposing just sanctions that have one or more of the following objectives: 

(a) to denounce unlawful conduct; 

(b) to deter the offender and others from committing offences; 

(c) to separate offenders from society, where necessary; 

(d) to assist in rehabilitating offenders; 

(e) 

(f) 

to provide reparations for harm done to the victim or the community; and 

to promote a sense of responsibility in offenders, and acknowledgement of the harms 

done to victims and the community; 

718.1 A sentence must be proportionate to the gravity of the offence and the degree of 

responsibility of the offender. 52 

These provisions describe key objectives of Canadian sentencing law. 

Objectives that we might associate with Aboriginal justice and restorative justice, 

such as rehabilitation and reparation to victims and community, are present as 

part of the general sentencing framework. There are, however, other objectives 

such as denunciation, deterrence, and separation from society that can often work 

at cross-purposes with the goals of restorative justice. Section 718.1 in particular 

has been described by the Supreme Court as consistent with a retributive 

approach to punishment, 53 in that the severity of the sentence should correlate to 

the perceived seriousness and moral blameworthiness of the offence. 

What is noticeable upon a review of reported cases in Manitoba, as in other 

jurisdictions, 54 is that some offences are categorically deemed so serious, or 

aggravating factors seen to cast the offences in such a negative light, as to render 

Gladue inapplicable. For example, in R v Wilson, the Aboriginal accused was 

sentenced to 20 months for dangerous driving. 55 The accused’s past criminal 

record included a long series of traffic offences, including several speeding tickets, 

and a past dangerous driving charge. Judge Chartier found that this past record 

was not only a significant aggravating factor, but also indicated that the accused 

simply had no sense of self-control while behind the wheel. In the court’s view, 

Gladue factors had no role in this lack of self-control, and thus the judge felt that 

52 

53 

54 

55 

Supra note 4 at ss 718 and 718.1. 

R v M (CA), [1996] 1 SCR 500, [1996] SCJ No 28. 

Kent Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” 

(2009) 54 Crim LQ 470. 

R v Wilson, [2001] MJ No 179, 49 WCB (2d) 492 (Man Prov Ct) Chartier J.


incarceration was necessary even when members of the accused’s community had 

proposed a plan of culturally appropriate rehabilitation. 

In R v SES, the Aboriginal accused was sentenced to 9 years for manslaughter. 

Gladue factors were present both in the accused's life, and in her Aboriginal 

community of Lake Delmare in Saskatchewan. Judge Gregoire found that the 

presence of significant aggravating factors, such as the accused bragging about the 

act afterwards, the brutality of the beating death, and her attempt to conceal 

evidence of the crime after the fact, spoke heavily in favour of a federal term. 56 

In R v Hayden, Judge Pullan found that the accused participated in a home 

invasion and subsequent manslaughter where the victim was mistakenly believed 

to have abused the accused's daughter. The court cited numerous aggravating 

factors and took the view that both an Aboriginal and a non-Aboriginal offender 

should receive the same sentence in such circumstances, irrespective of Gladue. 57 

In R v Fontaine, a public fraud case, the loss of $2 million, the flagrant nature 

of the fraud, and the subsequent efforts to cover it up, meant that a four year term 

was considered appropriate for Aboriginal and non-Aboriginal offenders alike 

notwithstanding Gladue. 58 In R v Beaulieu, Judge Harvie noted from the presentence 

report that the accused had a tragic upbringing that included routine 

physical and sexual abuse as a child, and this background presented a significant 

set of mitigating factors. Judge Harvie decided, however, that these were 

overborne by aggravating factors such as the brutal nature of the gang-related 

attack. The accused received 12 years for manslaughter. 59 

Risk assessment also plays a significant role in whether or not to apply 

Gladue, in ways that may be unsatisfactory from contemporary Aboriginal 

approaches to justice, and in a manner that often prioritizes the seriousness of the 

offence. As Hannah-Moffatt and Marrutto have demonstrated, 60 the whole 

enterprise of evaluating risk for Aboriginal people is in need of serious 

examination and research. The actuarial risk emphasis of standard PSRs is of 

limited value when assessing the totality of the circumstances and needs of 

Aboriginal people: 

Within PSRs, individual risk/criminogenic categories are typically decontextualized, 

hierarchically ordered and reconstituted as criminogenic needs associated with recidivism. 

56 

57 

58 

59 

60 

R v SES, [2000] MJ No 225 (available on QL) (Prov Ct); See also R v Sinclair, 2009 MBCA 71, 

240 Man R (2d) 135 (CA). 

R v Hayden, [2001] MJ No 343, 50 WCB (2d) 215. 

R v Fontaine, 2009 MBQB 165, 241 Man R (2d) 215. 

R v Beaulieu, 2007 MBPC 9, 213 Man R (2d) 239. However, in R v Desjarlais¸ where Judge 

Lismer deemed that a serious assault, death threats, and an attempt to intimidate the victim 

ruled out the possibility of a non-custodial sentence, consideration of Gladue did merit a 

reduction of the sentence from 25 months to 13 months: R v Desjarlais, 2009 MBPC 45, 256 

Man R (2d) 1. 

Hannah-Moffat and Maurutto, supra note 22.


... The result is a narrowly defined set of categories that are not self-identified by the 

offender or clinically determined by a treatment professional, but are based on statistical 

correlations derived from aggregate data from a large population sample of mostly white 

adult male offenders. 61 

Risk assessments used in the correctional context have been found to be 

invalid and discriminatory in their over-classification of Aboriginal women as 

maximum security. 62 Accordingly, until such time as a risk assessment model that 

appropriately addresses the situation of Aboriginal people is developed, standard 

risk assessments made in relation to Aboriginal people should be viewed with a 

degree of scepticism by judges and lawyers applying Gladue on sentencing. At a 

minimum, consideration should be given the potential for Aboriginal people to 

respond to culturally appropriate programs and services, and the availability of 

those programs and services, in mitigating risk to the community, or voiding that 

risk altogether. 

With this in mind, there are some encouraging decisions in Manitoba, where 

Gladue principles have been applied to counter common assumptions about risk. 

For example, in R v Renschler, both the Crown in submissions and the probation 

officer in a pre-sentence report, asserted that the accused was a high risk to reoffend. 

Judge Smith was nonetheless willing to allow the accused to serve a 

conditional sentence for theft during a home invasion because the accused, on 

her own efforts, participated in both educational and healing programs at the 

Aboriginal Centre in Winnipeg. Judge Smith in fact expressed concern that 

allotting a federal penitentiary term could prove counter-productive to the 

accused's rehabilitative efforts. 63 

On the other hand, aggravating factors can themselves lead judges to order a 

term of imprisonment, irrespective of the evidence relating to risk of re-offending 

in those cases where Gladue applies. In R v Armstrong, Judge Preston noted that the 

accused had made progress with his drug addiction and had intended to avail 

himself of cultural healing resources that were available in Edmonton. He wanted 

to avoid becoming more entrenched in a gangland culture that would be expected 

with a federal penitentiary term. Judge Preston nonetheless found that the 

aggravating factors, basically a violent home invasion that left the victim severely 

traumatized, meant that both general and specific deterrence were to be the 

paramount considerations in sentence. Armstrong was sentenced to a five year 

term. 64 A similar rationale was applied to an Aboriginal accused guilty of 

manslaughter, whereby general deterrence for a violent offence demanded a three 

61 

62 

63 

64 

Ibid at 278. 

Cheryl Marie Webster and Anthony N Doob, “Classification without Validity or Equity: An 

Empirical Examination of the Custody Rating Scale for Federally Sentenced Women Offenders 

in Canada” (2004) 46:4 Canadian Journal of Criminology and Criminal Justice 395. 

R v Renschler, supra note 29; see also R v Abraham, 2008 MBPC 10, 226 Man R (2d) 5 discussed 

infra text accompanying note 106. 

R v Armstrong, supra note 29; see also R v Pakoo, 2004 MBCA 157, 198 CCC (3d) 122.


year term despite the fact that the accused was deemed a low risk to re-offend. 65 In 

R v Monias, the trial judge sentenced the accused to 18 months for acting as a drug 

courier, despite the fact that the pre-sentence report found that she was a low risk 

to re-offend and recommended a conditional sentence. The Court of Appeal 

dismissed the appeal of sentence because by the time the appeal could be 

considered, the accused had served so much time already that the point had 

become moot. 66 

In our view, to continue to prioritize deterrence and retribution even for 

Aboriginal people considered to be low-risk to reoffend goes against the spirit, if 

not the letter, of the words, “reasonable in all the circumstances,” that appear in s 

718.2(e). Routine reliance on standard sentencing principles works at crosspurposes 

with the remedial purpose envisioned by Gladue by denying its 

application in those instances where it has the potential to make a positive 

impact. 

Much has been made of the statement by Justice Cory in Gladue that “[c]learly 

there are some serious offences and some offenders for which and for whom 

separation, denunciation, and deterrence are fundamentally relevant.” 67 Kent 

Roach has noted that appellate courts in a variety of jurisdictions have prioritized 

the seriousness of the offence, thereby denuding Gladue of much of its potential 

promise. He states it this way: 

Many of the Court of Appeal decisions revolve around an attempt to resolve the ambiguity 

in Gladue and Wells about the relevant importance of offender and offence characteristics 

in serious cases involving violence and death. This focus on what to do with serious cases 

may to some extent be a product of the data set of appeal cases. Both the Crown and the 

accused are probably more likely to appeal in serious cases. Nevertheless, the focus on the 

serious case has the effect of deflecting attention away from the primary concerns expressed 

in Gladue about the overuse of prison. In this way, the transformative potential of Gladue 

may have been blunted by the focus on the most serious cases, in appellate cases at least. 68 

A dividing line between less serious and more serious offences seemed to get 

reinforced in R v Wells, 69 a follow up judgment to Gladue by the Supreme Court of 

Canada. In Wells, the Court held that a community based sentence will not be 

appropriate if an offence requires two or more years of imprisonment. The 

presence of mitigating factors can reduce an otherwise appropriate term of 

imprisonment to less than 2 years, and thereby make an Indigenous person 

eligible for community based sentences. 70 On the other hand, if a judge decides 

65 

66 

67 

68 

69 

70 

R v MacDougall, 2009 MBQB 299, 247 Man R (2d) 147. 

R v Monias, 2004 MBCA 55, 184 Man R (2d) 93. 

Gladue, supra note 5 at para 78. 

Kent Roach, supra note 53 at 503-504. 


Of course, recent amendments to the Criminal Code have made conditional sentences unavailable 

in number of cases, notably where the accused is being sentenced for a “serious personal injury 

offence” that carries a maximum ten year sentence: Criminal Code, supra note 4, s 742.1.


that an Indigenous person is a danger to the public, that person will not be 

eligible for community based sentences. 71 The Court in Wells did note, however, 

that: “[t]he generalization drawn in Gladue to the effect that the more violent and 

serious the offence, the more likely as a practical matter for similar terms of 

imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not 

meant to be a principle of universal application.” 72 

Some appellate courts have recently begun to address this persistent myth 

and have made it clear that the nature or characterization of the offence should 

not be used to discount the impact of Gladue in cases involving Aboriginal 

accused. In R v Jacko, 73 a recent decision in which three young Aboriginal men 

from the Wikwemikong First Nation on Manitoulin Island were sentenced for a 

variety of offences related to a violent home invasion, the Ontario Court of 

Appeal said: 

To begin with an acknowledgement of the obvious, the offences the appellants committed 

were serious. … But denunciation and deterrence are not the only sentencing objectives at 

work here. 

Restorative justice sentencing objectives are of crucial importance in the circumstances. 

They include assistance in rehabilitation, providing reparations for harm done to the 

victims and to the community, promoting a sense of responsibility in offenders and an 

acknowledgement by offenders about the harm their conduct has done to the victims and 

to their community. 

In cases such as these, we must do more than simply acknowledge restorative justice 

sentencing objectives and note approvingly the rehabilitative efforts of those convicted. 

They must have some tangible impact on the length, nature and venue of the sentence 

imposed. 74 

In a similar vein, albeit in different circumstances in R v Ladue, 75 a recent 

decision of the British Columbia Court of Appeal, a majority of the court noted: 

While all of the principles and purposes of sentencing must be weighed and considered … 

when sentencing an Aboriginal offender, consideration must be given to the principles of 

rehabilitation, restorative justice and promoting a sense of responsibility in the community. 

These are the principles that many commissions and reports acknowledge are more 

culturally ingrained for the Aboriginal person than deterrence, denunciation and 

separation. … 

In my view, what is critical, fifteen years after the proclamation of Bill C-41, is the fact that 

the overrepresentation of Aboriginal people in prison is increasing. The decision in Napesis 

emphasizes the importance of sentencing judges taking the time to apply the principles as 

they relate to Aboriginal offenders. … 

The sentencing judge overemphasized the principle of separating the offender and gave 

insufficient weight to the principle of rehabilitation. … 

71 

72 

73 

74 

75 

R v Wells, supra note 14 at para 27-28, 44-50. 


R v Jacko, 2010 ONCA 452, 101 OR (3d) 1. 

Ibid at paras 84-87 [emphasis added]. 

R v Ladue, 2011 BCCA 101, 511 WAC 93, leave to appeal to the SCC granted: [2011] SCCA 

No 209.


While the trial judge acknowledged his Aboriginal heritage, she did not give it any tangible 

consideration when sentencing Mr. Ladue. If effect is to be given to Parliament’s direction 

in s. 718.2(e), then there must be more than a reference to the provision. It must be given 

substantive weight, which will often impact the length and type of sentence imposed. 76 

Mr. Ladue was a Dene man from the Kaska Nation in Ross River, Yukon, 

who was being sentenced for breach of a long-term supervision order (he was 

found intoxicated while at a community correctional centre). The original 

offences for which he received the long-term supervision order were violent in 

nature. The sentencing judge had emphasized protection of society through 

isolation as paramount and had not given significant weight to Gladue principles. 

In overturning a three year sentence and substituting one year for the breach, 

Bennett JA made it clear that Gladue must not be discounted due to the nature of 

the offence or even where the individual has been declared a long-term offender: 

In my respectful view, the direction to exercise restraint with particular attention to 

Aboriginal offenders is still to be applied even in the circumstances of a long-term offender. 

Much will depend on the circumstances, but the direction is not to be disregarded or 

downplayed simply because the accused is a long-term offender. Indeed, given the focus on 

rehabilitation and the reintegration of the offender in the community, as noted in L.M., as 

well as protection of the public, the principles of restraint and restorative justice may play a 

significant role in sentencing such offenders, depending on the circumstances. 77 

The key point emphasized by both the British Columbia and Ontario Courts 

of Appeal in these decisions is that counsel and judges must give serious 

consideration to Gladue and its application in cases involving serious offences. We 

are not arguing that the sentences meted out in the Manitoba cases mentioned in 

this section are necessarily too high or inappropriate; we recognize the 

discretionary nature of sentencing (as well as constraints posed by legislation or 

appellate review) and the multiplicity of factors that should be considered. 

However, we are suggesting that Gladue and its principles may be given short-shrift 

in cases involving serious crimes such as offences of violence. It is worth 

remembering that Jamie Gladue herself was sentenced in relation to a 

manslaughter charge. 

B. 

Violence against Women and Children 

A more challenging aspect of the myth that Gladue does not apply to serious 

offences is the assertion that to give meaningful effect to Gladue (which may lead a 

76 

77 

Ibid at paras 51-64 [citations omitted]. 

Ibid at para 74. It was noted in Ladue that the Ontario Court of Appeal took a different view in R 

v Ipeelee, 2009 ONCA 892, 99 OR (3d) 419, leave to appeal to SCC granted, [2010] SCCA No 

129. In quite similar circumstances involving an Inuk man who breached an alcohol abstention 

provision of a LTSO, the Ont CA held that denunciation, deterrence, and protection of the 

public took priority over Gladue and restorative justice principles. The Ladue and Ipeelee were 

heard together by the SCC in Fall 2011.


judge to order a reduced jail term or a community-based sentence) means that 

violence, particularly violence against Aboriginal women and children, is 

minimized and not taken seriously. 78 There can be no doubt that violence has 

reached tragic and crisis proportions in some communities and that state 

responses, including those in the criminal justice system but extending to child 

welfare agencies, education and other social services, have been woefully 

inadequate in preventing and responding to that violence. 79 To the extent that 

appeals to restorative justice and leniency for Aboriginal men who have assaulted 

women and children in their communities and families have been put forward in 

ways that have not provided protection and recognition of the harm done to these 

victims, and have reinforced racist stereotypes about Aboriginal people, 

Aboriginal women’s groups have rightly raised concerns about the messages sent, 

as noted by Sherene Razack: 

Pauktuutit, the Inuit Women’s Association of Canada, as [Teressa] Nahanee reports, 

launched a constitutional challenge of sentencing decisions on the basis that lenient 

sentencing of Inuit males in sexual assault cases interferes with the right to security of the 

person and the right of equal protection and benefit of the law of Inuit women. Nahanee 

emphasizes Pauktuutit’s position that “sexual exploitation of the young must stop because 

it is not ‘culturally’ acceptable, and it is not part of Inuit sexual mores and practices.” 

Cultural defence in this context, both Nahanee and Pauktuutit stress, minimizes the 

impact of sexual assault on Inuit girls and women, a minimizing made possible by the view 

that Inuit women are sexually promiscuous. 80 

It is true that restorative justice theory 81 expresses a fundamental optimism 

that there is potential for many people who would otherwise be incarcerated to 

change their behaviour and do their part to further community safety. 82 However, 

78 

79 

80 

81 

82 

We do not mean to minimize the reality of violence experienced by Aboriginal men, which is 

also higher than the rate for non-Aboriginal men as a group; but rather, we focus on the 

particular social problems of intimate violence (which is a gendered phenomenon) and abuse of 

children. For recent statistics on violence experienced by Aboriginal people in Canada, see Jodi- 

Anne Brzozowski, Andrea Taylor-Butts, & Sara Johnson, “Victimization and Offending Among 

the Aboriginal Population in Canada” (2006) 26:3 Juristat 1. 

Ibid; Amnesty International, “Stolen Sisters: A Human Rights Response to Discrimination and 

Violence Against Indigenous Women in Canada” (3 October 2004), online: Amnesty 

International . 

Sherene Razack, Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and 

Classrooms (Toronto: University of Toronto Press, 1998) at 71. 

Daniel Kwochka, “Aboriginal Injustice: Making Room for a Restorative Paradigm” (1996) 60:1 

Sask L Rev 153; Jarem Sawatsky, The Ethic of Traditional Communities and the Spirit of Healing 

Justice: Studies from Hollow Water, the Iona Community, and Plum Village (Philadelphia: Jessica 

Kingsley Publishers, 2009). 

See for example Jonathan Rudin & Kent Roach, “Broken Promises: A Response to Stenning and 

Roberts’ Empty Promises” (2002) 65:1 Sask L Rev 1; Rupert Ross, Returning to the Teachings: 

Exploring Aboriginal Justice (Toronto: Penguin Books Canada Ltd, 1996); Philip Lane et al, 

“Mapping the Healing Journey: First Nations Research Project on Healing in Canadian 

Aboriginal Communities” in Wanda D McCaslin, ed, Justice as Healing: Indigenous Ways (St Paul, 

Minnesota: Living Justice Press, 2005) 369.


critics have argued that placing optimistic hope in restorative justice can prove 

unjustified in practice, especially when it routinely and uncritically pursues noncarceral 

alternatives as a standardized objective. 83 Several scholars have questioned 

the wisdom of applying restorative justice to certain offences that by their very 

nature involve a power imbalance between the offender and the victim, such as 

sexual offences 84 and offences of intimate violence. 85 

The Royal Commission on Aboriginal Peoples also commented on the 

messages sent by a failure to address intimate violence in Aboriginal communities: 

If family violence is addressed without proper concern for the needs of the victims, two 

dangerous messages are sent. The first is that these offences are not serious. This message 

puts all who are vulnerable at risk. The second and more immediate message is that the 

offender has not really done anything wrong. This message gives the offender licence to 

continue his actions and puts victims in immediate danger. 86 

Not surprisingly, concerns of this kind also emerge in judicial decisions such 

as the Manitoba case of R v CDB in which Judge Tarwid concluded that Gladue 

factors had no application in a case involving sexual abuse by the accused of his 

own daughter. 87 In sentencing the man to four years, the judge’s comments were 

infused with a retributivist approach and a focus on parity in sentencing: 

And again, in terms of this being a Gladue hearing, is an aboriginal child worth less than a 

non-aboriginal child Should an aboriginal offender receive a lesser sentence than a nonaboriginal 

offender for violating the sacred trust of parenthood by sexually assaulting his 

own daughter I do not believe that, that is what the case of R v Gladue stands for. 88 

In a similar vein, Judge Barrett had this to say in the British Columbia case of 

R v J (H): 

There have been instances when Canadian judges were persuaded to bend the rules too far 

in favour of offenders from Native communities or disadvantaged backgrounds. When that 

83 

84 

85 

86 

87 

88 

Angela Cameron, “Sentencing Circles and Intimate Violence: A Feminist Perspective” (2006) 

18:2 CJWL479 [Cameron, “Sentencing Circles]; Annalise Acorn, Compulsory Compassion: A 

Critique of Restorative Justice (Vancouver: UBC Press, 2004); Emma Cunliffe & Angela Cameron, 

“Writing the Circle: Judicially Convened Sentencing Circles and the Textual Organization of 

Criminal Justice” (2007) 19:1 CJWL 1; Donna Coker, “Enhancing Autonomy for Battered 

Women” (1999) 47:1 UCLA L Rev 1 [Coker, “Enhancing Autonomy”]. 

Annie Cossins, “Restorative Justice and Child Sex Offences” (2008) 48:3 Brit J Crim 359; 

Shirley Julich, “Views of Justice Among Survivors of Historical Child Sexual Abuse” (2006) 10:1 

Theoretical Criminology 125; Christopher P Roseman, Martin Ritchie & John M Laux, “A 

Restorative Justice Approach to Empathy Development in Sex Offenders: An Exploratory Study” 

(2009) 29:2 Journal of Addictions & Offender Counselling 96; Acorn, supra note 82. 

Andrew Fulkerson, “The Use of Victim Impact Panels in Domestic Violence Cases: A 

Restorative Justice Approach” (2001) 4:3/4 Contemporary Justice Review 355; Cameron, 

“Sentencing Circles”, supra note 82; Coker, “Enhancing Autonomy”, supra note 82. 

Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal 

People and Criminal Justice in Canada (Ottawa: Services Canada, 1996) at 269. 

R v CDB, 57 WCB (2d) 335, [2003] MJ No 78 (available on QL) (Man Prov Ct). 

Ibid at para 317.


happens a form of injustice results; specific victims and members of the public generally are 

given cause to believe that the justice system has failed to protect them. 89 

While we share the concern that violence against Aboriginal women and 

children must be taken seriously and that ending the violence and providing 

tangible safety and security for Aboriginal community members should be a top 

priority for governments, we do not see the meaningful implementation of Gladue 

and restorative justice principles as necessarily inconsistent with those concerns 

and goals. The challenge is that the demands from survivors of intimate violence, 

including particularly the calls by Aboriginal women, for the violence against 

them to be taken seriously have been often misunderstood as calls for retributivist, 

punitive approaches, rather than as calls to stop the violence. Too often, the 

resources necessary to provide the safety, economic independence, and ongoing 

support required to really make a difference simply do not flow to the people who 

need them. 90 

In addition, demands that violence against women and children be taken 

seriously, including those by feminist anti-violence groups, have coincided with 

retributivist law and order policy agendas that have been focused on mandatory 

minimum sentences 91 and increased use of incarceration. 92 The punitive 

approaches implemented in recent years fly in the face of the evidence that prison 

largely does not deliver on its promises of public safety and rehabilitation. They 

also ignore the complexity of communities, victims’ needs and the victim-offender 

continuum. Cases involving Aboriginal women as accused put this reality into 

stark relief. 93 Aboriginal women are the fastest growing prison population in 

89 

90 

91 

92 

93 

R v J (H), Court file no 1095FC, Reasons for Sentence, 17 January 1990 (BC Prov Ct) 1. 

Angela Cameron, Restorative Justice: A Literature Review, (Vancouver: The British Columbia 

Institute Against Family Violence, 2005) at 53 [Cameron, Restorative Justice]. 

For example, mandatory minimum sentences for offences committed with a firearm were added 

to the Code in 2008. See also Bill C-10: An Act to enact the Justice for Victims of Terrorism Act and to 

amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the 

Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee 

Protection Act and other Acts, 1 st Sess, 41 st Parl, 2011 (Senate first reading 16 December 2011) 

[“Omnibus Crime Bill”]. Among other measures, the Omnibus Crime Bill increases the number 

of mandatory minimum sentences and further limits the availability of conditional sentences. 

However, it is worth nothing that there has been no legislative effort to bring in mandatory 

minimum sentences for sexual assault: Elizabeth Sheehy, “The Discriminatory Effects of Bill C- 

15’s Mandatory Minimum Sentences” (2010) 70 CR (6th) 302. The median sentence for that 

crime is 360 days. 

See e.g. Laureen Snider, “Feminism, Punishment and the Potential for Empowerment,” in 

Mariana Valverde, Linda MacLeod & Kirsten Johnson, Wife Assault and the Canadian Criminal 

Justice System, Toronto: Centre of Criminology 236; and Dianne L Martin, “Retribution 

Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies” (1998) 36 Osgoode 

Hall LJ 151. 

Gillian Balfour, “Falling Between the Cracks of Retributive and Restorative Justice: The 

Victimization and Punishment of Aboriginal Women” (2008) 3:2 Feminist Criminology 101; 

Cameron, “R v Gladue”, supra note 6.


Canada, including for serious offences receiving federal time, 94 and this same 

group of women are also overwhelmingly survivors of trauma and abuse. 95 

When we listen to survivors of intimate violence, particularly women, we find 

that they want an end to the violence, and accountability on the part of the 

community and the state, as well as on the part of the individual accused. 96 What 

little empirical research there is demonstrates that the best results in addressing 

intimate violence have come where resources and control of coordinated 

community justice responses are in the hands of sovereign Indigenous nations 

and where Indigenous women are involved in crafting the programs. 97 Effectively 

applying Gladue in cases involving violence against Indigenous women and 

children is ultimately dependent on the infusion of adequate resources and 

supports to communities. 98 There is no question that these cases represent 

significant challenges; however, it is also clear that the status quo is not working 

to provide the security and protection from violence that survivors and 

communities are entitled to expect. 99 

94 

95 

96 

97 

98 

99 

There was a 131% increase in the number of Aboriginal women serving federal sentences of 

imprisonment from 1998-2008. Office of the Correctional Investigator, Good Intentions, 

Disappointing Results: A Progress Report on Federal Aboriginal Corrections by Michelle M 

Mann (Ottawa: Office of the Correctional Investigator, 2009) [“Mann Report”]. 

Canadian Human Rights Commission, Protecting Their Rights: A Systemic Review of Human Rights 

in Correctional Services for Federally Sentenced Women (2003) ch 1; See also Canadian Association of 

Elizabeth Fry Societies/Native Women’s Association of Canada, “Women and the Canadian 

Legal System: Examination Situations of Hyper-Responsibility” in Patricia A Monture & Patricia 

D McGuire, eds, First Voices: an Aboriginal Women’s Reader (Toronto: Inanna, 2009) at 385. 

Cameron, Restorative Justice, supra note 89 at 18-21, 54-56; Donna Coker has argued that 

restorative justice processes may be beneficial to some women who are survivors of violence, but 

only if they meet five criteria: (1) prioritize victim safety over batterer rehabilitation; (2) offer 

material as well as social supports for victims; (3) work as part of a coordinated community 

response; (4) engage normative judgments that oppose gendered domination as well as violence; 

and (5) do not make forgiveness a goal of the process: Donna Coker, “Restorative Justice, Navajo 

Peacemaking and Domestic Violence” (2006) 10:1 Theoretical Criminology 67 [Coker, 

“Restorative Justice”]. 

Cameron, Restorative Justice, supra note 89; Coker, “Restorative Justice”, supra note 95; Andrea 

Smith, “Not an Indian Tradition: The Sexual Colonization of Native Peoples” (2003) 18:2 

Hypatia 70. 

Family group conferences, which involve family members meeting in a safe place to put in place a 

plan to stop violence, which is then supported by state and community based resources for each 

member of the family, have been used successfully in cases involving intimate violence in a 

number of jurisdictions: see e.g. Joan Pennell and Stephanie Francis, “Safety Conferencing: 

Toward a Coordinated and Inclusive Response to Safeguard Women and Children” (2005) 11:5 

Violence Against Women 666. 

Rupert Ross, “Traumatization in Remote First Nations: an Expression of Concern” (2006), a 

consultation memo written for the Community and Correctional Services, Yukon [unpublished] 

(containing the reflections of a Crown attorney about the counter-productive nature of existing 

criminal justice approaches to address the intergenerational trauma experienced in many First 

Nations) [Ross, “Traumatization”].


The myth of “too serious for Gladue to apply”, in its various manifestations, 

has significantly restricted the reach of Gladue. The remedial purpose of Gladue is 

effectively rendered hollow by minimizing its reach, and denying its applicability 

to a majority of Aboriginal people who are facing sentences of incarceration, the 

very people who have the greatest need for Gladue’s promise. Which leads to the 

next myth, namely that “prison works”. 

IV. 

MYTH #2: PRISON WORKS (FOR ABORIGINAL PEOPLE) 

There is a significant body of research built up over decades which 

demonstrates that prison does not effectively deliver on many of its promises such 

as public safety, rehabilitation, and deterrence. 100 The 1996 amendments to the 

Criminal Code – of which s 718.2(e) is just one part – were built in part on that 

foundation of research and an understanding among policy makers that our 

society’s reliance on prison is often counter-productive. 101 But even more 

profoundly, prison does not work for Aboriginal people. The Court in Gladue was 

blunt: 

As has been emphasized repeatedly in studies and commission reports, aboriginal offenders 

are, as a result of these unique systemic and background factors, more adversely affected by 

incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is 

often culturally inappropriate and regrettably discrimination towards them is so often 

rampant in penal institutions. 102 

Sentencing judges are often under the impression that Aboriginal people will 

have access to culturally appropriate and much needed programs, therapies and 

resources for healing if they are sentenced to federal time. 103 For example, in R v 

CPW Judge Tarwid sentenced a young Aboriginal woman to a federal term on the 

assumption that she would have access to an Aboriginal healing lodge in the 

federal system. 104 However, the Office of the Correctional Investigator has shed 

light on the degree to which these programs are often simply unavailable. 105 

100 

101 

102 

103 

104 

105 

See e.g. Anthony N Doob & Cheryl Webster, “Sentence Severity and Crime: Accepting the Null 

Hypothesis” in Michael Tonry, ed, Crime and Justice: A Review of Research, vol 30 (Chicago: 

University of Chicago Press, 2003) at 143 (extensively reviewing numerous studies which 

collectively indicate that severity/length of sentence generally does not deter people from 

committing crimes). 

See generally David Daubney & Gordon Parry, “An Overview of Bill C-41 (The Sentencing 

Reform Act)” in Julian V Roberts & David P Cole, eds, Making Sense of Sentencing (Toronto: 

University of Toronto Press, 1999) 31. 


It is generally well understood that few resources or programs exist in provincial correctional 

systems. 

R v CPW (2002), 172 Man R (2d) 259, 2002 CarswellMan 584 (WL Can) (Prov Ct). 

Protecting Their Rights, supra note 94; Mann Report, supra note 93.


Particularly with respect to Aboriginal women, access to the one healing lodge is 

simply illusory for most women. 106 

In fact, prison is actually a “risk” factor for many Aboriginal people that 

increases their likelihood of further engagement with the criminal justice system. 

In a small number of cases, such as R v Abraham, this reality seems to be 

appreciated: 

In response to a question from the court as to what rehabilitation would be required to 

mitigate against the likelihood that Mr. Abraham would acquiesce in resorting to violence 

the next time he was subjected to similar pressure, counsel suggested that psychological 

counselling and participation in activities that could increase his sense of self-worth would 

be most appropriate. In this regard I note as well, in passing, that given Mr. Abraham's 

susceptibility to pressure and shaming, the likelihood of prison being a maelstrom of 

completely negative experiences that would entrench him in the criminal world, is high. 107 

Not only can the proliferation of Aboriginal “gangs” be linked to growth and 

recruitment in Canadian prisons or by gang members returning to 

communities, 108 but there is substantial evidence of systemic discrimination in 

corrections at both the federal 109 and provincial levels, 110 as acknowledged by the 

Supreme Court in Gladue. Once sentenced, Aboriginal people tend to serve more 

of their sentence in prison (i.e. be paroled later or be detained to their statutory 

release date or to warrant expiry) and be assigned higher security classifications 

than their non-Aboriginal counterparts. 111 Until we can debunk the myth that our 

current reliance on imprisonment is working, we will not get very far in 

addressing Aboriginal over-incarceration. Yet, rather than address the mounting 

evidence that imprisonment is costly and ineffective in human and fiscal terms, 

Parliament has been busy passing laws that will pack our jails even further, 112 and 

will require us to divert billions of dollars to build more prisons. The Manitoba 

government has been one of the most vocal provinces in calling for this increased 

use of imprisonment. 113 

106 

107 

108 

109 

110 

111 

112 

113 

Patricia A Monture, “Women and Risk: Aboriginal Women, Colonialism and Correctional 

Practice,” in Monture & McGuire, supra note 94. 

R v Abraham, supra note 62. 

Jana Grekul & Patti Laboucane-Benson, “Aboriginal Gangs and their (Dis)placement: 

Contexualizing Recruitment, Membership & Status” (2008) 50:1 Can J Crim 59; Mark Totten, 

“Aboriginal Youth & Violent Gang Involvement in Canada: Quality Prevention Strategies” 

(2009) 3 IPC Review 135. 

Mann Report, supra note 93. 

AJI Report, supra note 1. 

Mann Report, supra note 93 at 15-22. 

See e.g. Bill C-25: An Act to Amend the Criminal Code (Limiting Credit for Time Spent in Pre-Sentence 

Custody), 2nd Sess, 40th Parl, 2009 (Royal Assent 22 October 2009) and the Omnibus Crime 

Bill, supra note 90. 

See e.g. “Swan seeks Criminal Code changes,” Winnipeg Sun (2 March 2011). For an analysis of 

the Manitoba NDP government’s approach to crime, see Andrew Woolford & Jasmine Thomas,


The reality is that even for less serious offences, including those involving the 

administration of justice or property crime, Gladue is not factoring into the many 

decisions where it could have the most impact. 114 Underlying the many cases 

where Gladue has arguably not made a difference is a lack of resources – to 

prepare Gladue reports, to investigate options for the accused, and to make 

appropriate submissions to the court, as well as resources in the community to 

actually provide relevant programs and supports to the accused and to victims. 

The race to incarcerate flies in the face of reason and limits the availability of 

alternatives to incarceration – both in terms of new statutory limits on discretion 

in sentencing and in terms of the diversion of scarce resources that could 

otherwise be directed to community-based programs that can actually work, which 

leads to the next myth. 

V. 

MYTH #3: ABORIGINAL OVER-REPRESENTATION IS AN 

INTRACTABLE PROBLEM THAT IS TOO COMPLEX TO BE DEALT WITH 

THROUGH GLADUE 

There are a number of components to this myth. One is the idea that 

sentencing is too late in the game to effect change. However, the courts and policy 

makers in various jurisdictions have, in fact, applied Gladue principles to other 

stages in the criminal justice system – notably bail 115 (where Aboriginal people are 

more likely than non-Aboriginal accused to be denied bail 116 ), but also 

corrections 117 and other proceedings where an Aboriginal person’s liberty is at 

stake, such as Mental Health Review Board decisions for individuals found not 

criminally responsible on account of mental disorder 118 and parole ineligibility 

decisions. 119 The Ontario courts have taken the lead in this regard and others 

114 

115 

116 

117 

118 

119 

“Exceptionalism and Deputization under Today’s NDP: Neo-liberalism, the Third Way, and 

Crime Control in Manitoba,” (2011) 26:1 CJLS 113. 

See e.g. R v Hall, supra note 29; R v CF, 2005 MBQB 227, 197 Man R (2d) 183. As Kent Roach 

has noted, the cases that get reported and appealed tend to be those involving serious charges, so 

the public record does not fully reflect the extent to which Gladue is not being applied. 

See e.g. R v Robinson, 2009 ONCA 205, 95 OR (3d) 309; and R v Neshawabin, 2008 CanLII 

73617, 2008 CarswellOnt 8598 (WL Can) (ON SC). 

Gladue, supra note 5 at para 65; AJI Report, supra note 1. 

For example, the Correctional Service of Canada has directed that all CSC staff should consider 

all decisions affecting Aboriginal persons in custody in accordance with “Gladue principles”; 

Correctional Service of Canada, Commissioner’s Directive 702 – Aboriginal Offenders (Ottawa: 

Correctional Service of Canada, 2008). 

R v Sim (2005), 78 OR (3d) 183, 201 CCC (3d) 482 (ON CA). 

R v Jensen, 74 OR (3d) 561, 195 CCC (3d) 14 (ON CA).


have been slower or more resistant to extending Gladue principles in this way, 120 

even though in Manitoba, for example, the AJI Report long ago made such 

recommendations. A more fundamental component of this myth is the idea that 

Aboriginal over-representation is not a criminal justice problem at all; it is a 

complex social problem, and that pouring money into various aspects of the 

criminal justice system will not achieve results. Of course, on one level it is true 

that colonization, residential schools, and a host of other policies have left 

Aboriginal people and communities traumatized and poor. There are no “easy 

fixes” but the criminal justice system is clearly implicated in perpetuating these 

problems. 121 

Furthermore, the idea that there are not resources to spend or that resources 

directed – particularly at community-based alternatives to incarceration – would 

not be well-spent just flies in the face of facts and reason. Our governments are 

spending billions of dollars on imprisonment 122 but comparatively miniscule 

amounts on community alternatives 123 and capacity building in Aboriginal 

communities to address these challenging issues. Legal Aid is already stretched 

thin to try to meet the basic demands for representation in criminal (and some 

civil) matters. Lawyers who may try to argue for a more culturally appropriate, 

community based sentence for their client are often faced with a lack of available 

options in the community. 124 The Community Holistic Circle Healing Program of 

the Hollow Water First Nation, for example, is a model developed by one 

Aboriginal community that has achieved some success. 125 But there is such an 

unmet demand for such programs – and would be more if the criminal justice 

system was not so oriented towards punishment and imprisonment. 

In a recent decision, Judge Sandhu summarized the reality in Manitoba: 

Unfortunately, the Gladue process outcomes in Manitoba are rendered generally weak and 

ineffective due to a lack of resourcing to put Gladue principles into action in a manner 

120 

121 

122 

123 

124 

125 

Roach, supra note 53. Roach notes that, for example, the Saskatchewan Court of Appeal has been 

receptive to a number of Crown appeals in Gladue cases, thereby limiting the scope of that 

decision in Saskatchewan. 

AJI, supra note 1; Ross, “Traumatization”, supra note 98. 

See e.g. The Correctional Service of Canada, 2011-2012 Report on Plans and Priorities (Ottawa, 

Ont: Correctional Service of Canada, 2011), along with other federal, provincial and territorial 

documents detailing justice spending in Canada, collected online: Tracking the Politics of Crime 

and Punishment 

See e.g. Tim Quigley, “Pessimistic Reflections on Aboriginal Sentencing in Canada” (2009) CR 

(6 th ) 135 (where the author notes that the number of sentencing circles convened in 

Saskatchewan declined from 39 in 1997 to just one in 2007). 

McDonald, supra note 34 at 114-120; Sawchuk, supra note 26. 

The Hollow Water program was initiated by community members in one Manitoba First Nation 

to deal with widespread intergenerational sexual abuse in the community. An evaluation study 

found that the program contributed to reduced recidivism for such offences. See J Couture et al, 

A Cost-Benefit Analysis of Hollow Water’s Community Holistic Circle Healing Process (Ottawa, Ont: 

Ministry of the Solicitor General, 2001).


than inspires confidence, both by the court and the public… that will permit the court to 

confidently send an offender back into the community, confident in the knowledge that 

community resources would be, if not immediately, shortly and generously made available 

to the accused, under supervision…. Without that confidence, the application of Gladue 

principles is little utilized by the courts in Manitoba and is little respected by the public. 

The root of the problem of such a lack of confidence in Gladue principles and its 

application is a matter of resources. 126 

Clearly without an infusion of resources to provide meaningful alternatives to 

incarceration and to build capacity in Aboriginal communities (for safe and 

affordable housing, programs and services to address violence, education and 

vocational training, etc.), s 718.2(e) is a hollow promise. However, the case law 

and McDonald’s interviews with defence lawyers provide a window on some of 

the more challenging reasons why it is difficult to make change within the 

criminal justice system. 

VI. 

CONCLUDING THOUGHTS: CHALLENGES AND WAYS FORWARD 

The Gladue decision places an imperative on the legal system, as does the 

social problem of Aboriginal over-incarceration, which is especially acute in 

Manitoba. However, progress is elusive and barriers are many. Some of these 

barriers may stem from limitations within Gladue itself. Many decisions post- 

Gladue have used Justice Cory's comment regarding when deterrence and 

incarceration should remain the primary consideration to sustain bifurcation 

between less serious and more serious offences. Wells takes it even further by 

imposing explicit limitations on when non-custodial sentences are available for 

consideration under Gladue. Nonetheless, some decisions in Manitoba have 

worsened the situation by crystallizing offence bifurcation, and giving short shrift 

to Gladue, even where the accused was identified as low-risk. Other factors 

contributing to the limited impact Gladue has had in Manitoba, include the 

absence of a program to facilitate Gladue reporting in Manitoba and a lack of 

adequate resources flowing to community-based alternatives to incarceration. 

With a few exceptions, when Gladue is applied in Manitoba, it has tended to be 

where the standard justice system would be willing to use probation or a 

conditional sentence anyway. 127 

126 

127 

R v Mason (21 March 2011) (Man Prov Ct) at 6-7. Sandhu J rejected a joint submission for a 

conditional sentence in a case of break and enter and theft from an adult video store which was 

committed while the accused was severely intoxicated. The court gave effect to Gladue principles 

and ordered a conditional discharge, citing the significance of avoiding a criminal record for this 

Aboriginal man who had made significant strides in addressing issues in his life. 

A notable exception is R v Audy, 2010 MBPC 55 (CanLII) where Judge Slough sentenced an 

Aboriginal woman to a fine and probation in a case of impaired driving causing bodily harm, an 

offence for which a conditional sentence is no longer available.


It may seem contradictory for us to promote greater implementation of 

Gladue in Manitoba, and yet lament its shortcomings. Firstly, implementing a 

Gladue program in Manitoba, even taking into considerations some of the 

limitations latent in Gladue itself, can still result in taking some positive strides 

forward. Appellate courts have produced some very sound decisions that stress 

that courts must still seriously consider applying Gladue even for more serious 

offences that would demand deterrence and incarceration under standard 

sentencing principles. We are hopeful that more Manitoba judges will follow this 

promising development, and give it much needed momentum in the Manitoba 

justice system. Resources to Indigenous communities – both on reserve and in 

urban areas – to provide effective community-based programs and services are also 

needed to provide meaningful alternatives to incarceration. 

Secondly, our hope is that setting up a Gladue program in Manitoba can be a 

pathway to more fundamental change. 128 If a Gladue program gets off to a good 

start in Manitoba and achieves early successes, such as reduced recidivism rates, it 

can become an established feature of the legal system in Manitoba. Once 

established, it can then it can provide a foundation to enlarge the scope of 

Indigenous justice programs. 129 Beyond that, who knows In the future, an 

established Gladue program in Manitoba can provide a foundation for a transition 

to Aboriginal self-determination over justice, where Aboriginal communities 

ultimately decide for themselves how they will address crime and disorder. In the 

meantime, the damage done to Aboriginal people, their families, and their 

communities through the counterproductive overuse of incarceration cannot be 

denied. Given recent and ongoing legislative initiatives to increase the use of 

incarceration, the brunt of which will be born disproportionately by Aboriginal 

people, there is an increasing practical imperative to do more on this front. 

Decisions such as Mason, as well as the interest shown by members of the 

Manitoba legal community in the recent Gladue symposium and follow-up 

meetings, demonstrate that there are individuals interested in bringing about 

systemic change in the criminal justice system. It is time to move from myth to 

implementation of the basic principles articulated in Gladue. 

128 

129 

See also Mark Carter, “Of Fairness and Faulkner” (2002) 65 Sask L Rev 63 (on s 718.2(e) and 

Gladue as an important first step in addressing the extraordinary circumstances of Aboriginal 

over-incarceration). 

Key areas and possibilities for reform have been documented in the AJI Report, supra note 1; See 

also Jonathan Rudin, Aboriginal Peoples and the Criminal Justice System, (2007) research paper 

commissioned by the Ipperwash Inquiry, online: . Recommendations to address 

Aboriginal over-representation in the Ontario criminal justice system include, for example, 

development of a concrete plan by the province to expand the range of Aboriginal justice 

programs; examination of Crown policies of general application for their impact on Aboriginal 

people; and funding of Aboriginal-specific bail programs.

The National Academy of Sciences, Canadian 

DNA Jurisprudence and Changing Forensic 

Practice 

S O R E N F R E D E R I K S E N * 

I. 

INTRODUCTION 

I 

n 2009, the National Research Council of the National Academies released a 

report entitled Strengthening Forensic Science in the United States. Empowered by 

Congress, the Forensic Science Committee was explicitly tasked with 

evaluating the current status of forensic evidence and making recommendations 

for the future development of the field of forensics. Congress dictated that the 

model for this process was to be the one that was used in the development of two 

previous reports on the evaluation of forensic DNA evidence. The 

recommendations in the final report of the Forensic Science Committee reflect 

this, using forensic DNA as a model for many of its recommendations in the area 

of traditional forensics. 

This paper examines how the translation of DNA-based forensic science 

methodology to the traditional forensic sciences, if implemented, will affect the 

kind of evidence presented in criminal courts and the way that evidence is 

presented. It argues that this would represent a change in the scientific paradigm 

that underlies forensic testimony. Further, this paper examines how this change in 

the scientific and methodological paradigm for forensic evidence proved difficult 

for Canadian courts when DNA evidence was first introduced, suggesting 

potential difficulties in the future as Canadian courts try to adapt to new ways of 

thinking about forensic evidence. 

II. 

THE FORENSIC SCIENCE COMMITTEE 

In November 2005, Congress tasked the National Academy of Sciences 

(NAS) with conducting a study to evaluate the status of forensic science in the 

United States, recognizing that there was a need for improvement in this area. 1 

* 

1 

Assistant Professor, School of Public Policy and Administration, York University. 

US, National Research Council: Committee on identifying the needs of the forensic science 

community, Strengthening Forensic Science in the United States (Washington DC: National


The evaluation was specifically designed to mirror the NAS’s work in evaluating 

forensic DNA evidence. 2 The NAS therefore established a Forensic Science 

Committee, which was instructed by Congress to: 

(1) [A]ssess the present and future resource needs of the forensic science community, to 

include State and local crime labs, medical examiners, and coroners; 

(2) make recommendations for maximizing the use of forensic technologies and 

techniques to solve crimes, investigate deaths, and protect the public; 

(3) identify potential scientific advances that may assist law enforcement in using forensic 

technologies and techniques to protect the public; 

(4) make recommendations for programs that will increase the number of qualified 

forensic scientists and medical examiners available to work in public crime 

laboratories; 

(5) disseminate best practices and guidelines concerning the collection and analysis of 

forensic evidence to help ensure quality and consistency in the use of forensic 

technologies and techniques to solve crimes, investigate deaths, and protect the 

public; 

(6) examine the role of the forensic community in the homeland security mission; 

(7) [examine] interoperability of Automated Fingerprint Information Systems [AFIS]; 

and 

(8) examine additional issues pertaining to forensic science as determined by the 

Committee. 3 

The Committee eventually made a series of thirteen recommendations. 4 

Characteristic of many of these recommendations and their rationales was a 

concern with the normalization of forensic science into mainstream research 

science. The Committee, responding to a variety of concerns over traditional 

forensic science evidence, proposed far-reaching changes in the way those sciences 

work; from the structure of professional organizations and the way results are 

presented and validated, to the way research into forensics is funded. These 

changes would, if implemented, move the traditional forensic sciences closer to 

the DNA-forensics model in terms of their relationship to mainstream science, 5 

their use of formal validation studies, and their presentation of results. 

2 

3 

4 

5 

Academies Press, 2009) online: National Criminal Justice Reference Service 

at 1. 

See US, National Research Council: Committee on DNA Technology in Forensic Science, DNA 

Technology in Forensic Science (Washington DC: National Academies Press, 1992) online: National 

Academies Press [NRC 1992] and US, 

National Research Council: Committee on DNA Technology in Forensic Science, The Evaluation 

of Forensic DNA Evidence: An Update (Washington DC: National Academy Press, 1996) online: 

National Academies Press [NRC 1996]. 

US, Committee on Appropriations of the Senate, Report on Departments of Commerce and Justice, 

Science, and Related Agencies Appropriations Bill, 2006 (S Rep No 109-88) (Washington DC: 2005), 

at 46, as cited supra note 1, at 1. 

Supra note 1 at 19-33. 

By mainstream science I mean science as practiced by research scientists in universities, as 

distinguished from that practiced by forensic scientists.

Canadian DNA Jurisprudence and Changing Forensic Practice 113 

Should traditional fields of forensics accept the sort of changes that are being 

proposed by the NAS, it would make for a paradigmatic change 6 in the way the 

forensic sciences function. It will also fundamentally change the context in which 

forensic evidence is presented in courtrooms. Lawyers, courts, police officers, 

prosecutors, and all the legal actors who have become accustomed to forensic 

evidence presented in a particular way will have to adjust to a new way of thinking 

about forensic evidence. The model for the way this evidence may end up being 

presented should follow the model adopted by DNA evidence, and thus we might 

expect that DNA evidence and the way it is evaluated, presented, and validated 

will become the dominant paradigm for forensic evidence generally. This would 

represent a fundamental, normative change in the way forensic science is 

practiced by forensic science and in the way that it is presented to the courts. 7 

It seems likely that any changes to forensic practice resulting from the NAS 

report will likely spread to Canadian forensics as it has implications for all 

forensic practitioners, whether they are in the United States or elsewhere. 

Anecdotally, in my conversations with Canadian forensics practitioners they 

already talk about its impact. 

For the law generally, the switch to a DNA-style model of forensic practice 

may not at first seem to be problematic. It appears to be a welcome improvement 

for a type of evidence that has seemed increasingly inadequate in recent years. 8 

The law has had to adapt to the coming of DNA evidence, so one might think 

that it would be well prepared for the “DNAification” of forensic evidence more 

generally. 

Looking at Canadian law, it is not clear that this latter assumption is true. As 

this paper will show, Canadian courts had some specific difficulties with DNA 

evidence, and it is probable that some of these difficulties may resurface when 

they are confronted with traditional forensics translated to fit the DNA paradigm. 

In particular, questions related to how judges, juries, and the law more generally 

confront probabilistic evidence will become germane. These are questions that, 

this paper will show, were only partially addressed during the initial phases of 

DNA acceptance in Canada, and it is reasonable to expect that similar questions 

may be raised when and if traditional forensics disciplines begin to follow the 

6 

7 

8 

Paradigmatic change refers to the process whereby a normative model of scientific practice (or 

paradigm) changes. See Thomas Kuhn, The Structure of Scientific Revolutions, 3rd (Chicago: 

University of Chicago Press, 1996). 

See Paul C Giannelli, “Forensic Science: Under the Microscope” (2008) 34 Ohio NU L Rev 315 

and Michael J Saks & Jonathan J Koehler, “Review, The Coming Paradigm Shift in Forensic 

Identification Science,” (2005) 309: 5736 Science 892 for a discussion of the potential for a 

paradigm shift in the way forensic evidence is handled in the United States. 

There is a developing literature aimed at the American defence bar that focuses on 

demonstrating limitations with conventional forensic evidence techniques. See Adina Schwartz, 

“Challenging Firearms and Toolmark Identification” (2008) 32 Champion 10 for an example of 

the approaches being taken.


DNA model. In particular, concerns over the statistical validation of particular 

forensic techniques and over the trial presentation and interpretation of match 

statistics seem likely to come to the fore should the DNA model be applied more 

broadly. 

In the Manitoba context, DNA evidence and how it should be interpreted is 

a current subject due to the high profile trial of Mark Edward Grant for the 1984 

murder of Candace Derksen. 9 Questions about the interpretation of DNA, other 

forms of forensic evidence, and the jury charge have formed the basis of his 

appeal of his conviction. 10 While DNA evidence has largely become routine in 

Canadian courts, R v Grant demonstrates how concerns over the use of relatively 

marginal DNA samples allow the defence to unpack the technique itself and 

questions about the limits of technology, expertise, and interpretation come to 

the fore. 11 While this paper will argue that DNA is likely becoming the model that 

all other forensic techniques will have to follow, it is important to keep in mind 

that it, like all other forensic techniques, remains only circumstantial evidence 

that must be interpreted by the fact-finder in the context of a trial. 

The following paper will start by describing the recommendations made by 

the National Academy of Sciences Committee and how, if implemented, these 

recommendations would result in a change in the scientific approach or paradigm 

used by forensic science generally. The second section of the paper will introduce 

DNA evidence and the scientific controversies that were current during the 

period that Canadian courts were first evaluating its admissibility. The third will 

describe some of the early Canadian DNA jurisprudence to identify some of the 

difficulties Canadian courts had when confronting these controversies. The 

concluding section will discuss how this experience with DNA could help identify 

potential difficulties with post-NAS Report forensic science. 

III. 

THE NATIONAL ACADEMY OF SCIENCE’S REPORT ON FORENSICS 

This section will show how the NAS report argues for major changes in the 

way forensic science is practiced and how the Report proposes a series of 

recommendations aimed towards specific forms of forensics. It will argue that the 

factor that links these recommendations is the use of DNA as a model and that, 

taken together, the NAS recommendations argue for making all forensic science 

9 

10 

11 

James Turner, “Schoolgirl trial awash in DNA testimony”, online: CBC News . 

R v Grant, Notice of Application of Leave to Appeal and Notice of Appeal. 

“Faulty DNA testing attacked at murder trial”, online: CBC News 

, 

“DNA doubted at murder trial”, online: CBC News .


more like forensic DNA. This, it will be argued, represents a major and perhaps 

even a paradigmatic change in the way forensic science would be practiced. 

There has been little academic writing on the NAS Report. What has been 

written suggests that the report would, if followed, lead to a significant change in 

the way forensic science is practiced in the United States and, because of the close 

relationship between forensics professions and practices in the two countries, 

Canada. 12 Simon Cole, for example, suggests that, in the field of fingerprinting, 

the Report represents the triumph of mainstream or institutionalized science 

norms over those of traditional forensics. 13 Erin Murphy notes how DNA formed 

a pivotal role in the development and execution of the Committee’s mission and 

that it has become a model of appropriate forensic science practice. 14 The section 

that follows echoes Cole’s observation from the field of fingerprinting and 

suggests that, taken as a whole, the Report represents a call for all fields of 

forensic science to shift to methods from mainstream as opposed to forensic 

science. Further, these methods are derived by comparison with DNA typing, and 

thus represent, following Murphy, a shift to using DNA as the model for forensic 

practice. 

It is illustrative of the general approach taken by the Committee that the 

analysis of specific scientific disciplines opens with a discussion of biological 

evidence, and focuses specifically on DNA evidence. In its summary, the 

Committee focuses on the reasons for which DNA analysis is to be considered 

scientifically sound. It is worth citing this summary at length: 

Unlike many forensic techniques that were developed empirically within the forensic 

science community, with limited foundation in scientific theory or analysis, DNA analysis 

is a fortuitous by-product of cutting-edge science. Eminent scientists contributed their 

expertise to ensuring that DNA evidence offered in a courtroom would be valid and 

reliable (e.g. in the 1989 New York case, People v Castro), and by 1996 the National 

Academy of Sciences had convened two committees that issued influential 

recommendations on handling DNA forensic science. As a result, principles of statistics 

and population genetics that pertain to DNA evidence were clarified, the methods for 

conducting DNA analyses and declaring a match became less subjective, and quality 

assurance and quality control protocols were designed to improve laboratory performance. 

DNA analysis is scientifically sound for several reasons: (1) there are biological explanations 

for individual-specific findings; (2) the 13 SR loci used to compare DNA samples were 

selected so that the chance of two different people matching on all of them would be 

extremely small; (3) the probabilities of false positives have been explored and quantified in 

12 

13 

14 

For example, Canadian DNA testing relies on the American CODIS software protocol for the 

DNA testing used at the National DNA Databank. National DNA Bank “Technology” online: 

National DNA Bank accessed August 2, 2011. 

Simon A Cole “Who Speaks for Science A response to the National Academy of Sciences 

Report on forensic science” (2010) 9:1 Law, Probability and Risk 25. 

Erin Murphy, “What ‘Strengthening Forensic Science’ today means for tomorrow: DNA 

exceptionalism and the 2009 NAS Report” (2010) 9:1 Law, Probability and Risk 7. Murphy 

notes this in the context of her concern that DNA may not receive sufficient critical scrutiny 

because of this privileged role.


some settings (even if only approximately); (4) the laboratory procedures are well specified 

and subject to validation and proficiency testing; and (5) there are clear and repeatable 

standards for analysis, interpretation, and reporting. 15 

The Committee's assessment of the chemical analysis of controlled substances 

is similarly positive. Again, the importance of a strong link to mainstream science 

is apparent: “The analytical methods used have been adopted from classical 

analytical chemistry, and there is broad agreement nationwide about best 

practices.” 16 However, it identified problems with the way these sorts of results are 

reported in court, taking issue with the practice of reporting a result without 

stating either the methodology or the sampling methodology used: “From a 

scientific perspective, this style of reporting is often inadequate, because it may 

not provide enough detail to enable a peer or other courtroom participant to 

understand and, if needed, question the sampling scheme, process(es) of analysis, 

or interpretation.” 17 

While the Committee is generally favourable towards the practices used in 

the fields of forensic DNA testing and chemical analysis of controlled substances, 

its assessments of other fields of forensic practice are considerably less positive. 18 

For example, the conclusions reached for friction ridge analysis (fingerprinting) 

are critical of the practices of forensic professionals in this field. 19 In particular, 

the Committee criticizes latent fingerprint examiners for not developing or using 

statistical models to provide probabilistic descriptions of match criteria: 

Current published statistical models, however, have not matured past counts of 

corresponding minutia and have not taken clarity into consideration. (This area is ripe for 

additional research.) As a result, the friction ridge community actively discourages its 

members from testifying in terms of the probability of a match; when a latent print 

examiner testifies that two impressions “match,” they are communicating the notion that 

the prints could not possibly have come from two different individuals. 20 

The Report also quotes extensively from J.L. Mnookin’s assessment of latent 

fingerprinting: 

Given the general lack of validity testing for fingerprinting; the relative dearth of difficulty 

proficiency tests; the lack of a statistically valid model of fingerprinting; and the lack of 

validated standards for declaring a match, such claims of absolute, certain confidence in 

identification are unjustified. 21 

In their summary assessment, while emphasizing the plausibility of 

fingerprint analysis and its utility as a forensic tool, the Committee stressed the 

15 

16 

17 

18 

19 

20 

21 

Supra note 1 at 133 (footnotes omitted). 

Ibid at 134 (footnote omitted). 

Ibid at 135. 

Ibid at 130-173. 

Ibid at 142-145. 

Ibid at 141. 

Jennifer Mnookin, (2008) “The validity of latent fingerprint identification: confessions of a 

fingerprinting moderate” 7:2 Law, Probablity and Risk 127, quoted supra note 1 at 142.


lack of information about its error rates. 22 This lack of information, coupled with 

fingerprint examiners’ claims of a zero error rate, a claim the Committee 

considered untenable, represent the greatest challenges facing fingerprinting as a 

discipline. 23 

None of these problems were considered unsolvable, and the approach to 

solving this problem that was suggested in the Report was to mobilize scientific 

research to fill in the gaps in fingerprinting methodology. 24 The Committee 

proposed research into the variability of fingerprint ridges themselves, research 

into the means used to discriminate fingerprint ridges, and into the means by 

which latent prints may be made and such prints deformed. 25 Appropriate 

statistical modeling of fingerprints themselves and of errors made by fingerprint 

examiners, along with the development of better, formalized, practice guidelines 

were seen as the appropriate approach to improving fingerprinting. 26 In the case 

of fingerprinting, the Committee was bullish on the likelihood that a proper 

statistical analysis of the underlying variability of fingerprints would support the 

use of them for forensic purposes. 27 It was less positive on the sorts of natural 

variability that underpin other forms of pattern evidence: “there is consensus on 

regarding the number of individual characteristics needed to make a positive 

identification, and the committee is not aware of any data about the variability of 

class or individual characteristics that must match in order to have any particular 

degree of confidence about the source of the impression.” 28 

The preference for non-statistical reporting of probability by most shoe-print 

and tire track examiners was noted along with European studies that found that 

different examiners did not reach identical conclusions, and the FBI has 

recommended the use of a series of descriptive terms to indicate the degree of 

reliability of a particular conclusion. 29 The Committee's proposed solution to 

these problems lies in more scientific research to provide the statistical descriptors 

and standards need to better understand the limits of these techniques. The 

Committee makes clear that questions about what kind of research needs to be 

done and by whom have not been addressed by the forensics community. 30 This, 

coupled with the criticism of the existing research being conducted in forensics 

laboratories and published in trade journals presents the clear implication that a 

more scientific normative approach, one that is compatible with the norms of 

22 

23 

24 

25 

26 

27 

28 

29 

30 


Ibid at 142-143. 

Ibid at 143-144. 

Ibid. 

Ibid. 

Ibid. 

Ibid at 149. 

Ibid at 147-148. 

Ibid at 148-149.


mainstream science, must be taken with this research and that the current reliance 

on experience-based judgment is inadequate. 31 

Similar problems were identified in toolmark and firearms identification, 

with additional difficulties caused by the need to identify the kinds of marks that 

are unique from those that are characteristic of a particular class or sub-class of 

tools or firearms. 32 Another National Academies report, Ballistic Imaging, has 

found that the “validity of the fundamental assumptions of uniqueness and 

reproducibility of firearms-related toolmarks has not yet been fully demonstrated” 

and that “a significant amount of research would be needed to scientifically 

determine the degree to which firearms-related toolmarks are unique or even to 

quantitatively characterize the probability of uniqueness.” 33 

For hair evidence, the Committee again cites the lack of scientific studies to 

validate statistically the assumptions about diversity of identifiable hair 

characteristics that underlie the method, and, furthermore, what studies exist raise 

doubts about the reliability of the technique more generally as well as about the 

kind of testimony given by forensic hair examiners. 34 

In these areas of forensic practice, as well as in the fields of fiber analysis, 

handwriting analysis, paint, explosives and fire debris, and forensic odontology, 

the committee focused on the need for scientific research to develop a statistical 

understanding of the underlying assumptions behind the techniques. 35 In short, 

the Committee was remarkably consistent with its suggestions for improving 

forensic practice, focusing on bringing the underlying research into the 

mainstream and developing appropriate statistical models to validate forensic 

techniques. 

These changes would bring other forensic sciences in line with forensic DNA 

practice and holds out that technique as an example for other forensic scientists 

to follow. The types of changes the NAS proposes for other forms of forensic 

science are changes that seem designed to bring them into line with DNA’s 

approach. It is perhaps not an overstatement to suggest that the model or 

paradigm for good forensic science in the NAS report is forensic DNA. 

Taken as a whole, the changes suggested by the NAS represent something 

more than subtle tinkering with the methods used by forensic examiners. The 

questions they ask demand a change in the way forensic techniques are developed 

and validated. Whereas before a preponderance of expert opinion might be 

sufficient to validate a technique, now, as we have seen, statistical descriptions of 

31 

32 

33 

34 

35 

Ibid at 149-150. 

Ibid at 154. 

US, National Research Council: Committee to Assess the Feasibility, Accuracy and Technical 

Capability of a National Ballistics Database, Ballistic Imaging (Washington DC: National 

Academies Press, 2008) at 3, as quoted supra note 1 at 154. 

Ibid at 160. 

Ibid at 161-176.


the proposed technique as well as basic science on the phenomenon that 

underlies it are necessary. In is no longer sufficient for experts to state their 

opinions as to the likelihood of a forensic match; such likelihoods must be 

expressed statistically. Forensics is being asked to accede to the methods and 

research patterns of mainstream science, as the methods and research patterns of 

forensic science are held to be inadequate. 36 In other words, the NAS is 

demanding that the epistemic foundation of forensic claims change from one of 

practiced expert opinion to one more in keeping with that of mainstream science. 

This is not a small change. If implemented it may be a shift in the scientific 

paradigm 37 that underlies forensics resulting from a translation 38 of DNA’s 

methodologies to other forensic fields. This kind of paradigmatic change would 

be represented by a change in the shared understanding by forensic scientists of 

what is good forensic science. Seen from this viewpoint, one wonders how the 

elements of mainstream science, as translated to forensic DNA, might take on 

different meanings when translated into the scientific and legal framework of 

other types of forensic science. What do scientific controversies, the use of 

statistical descriptions of evidence, and the adoption of mainstream science’s 

36 

37 

38 

Simon Cole, in one of the first papers to respond to the NAS Report (supra note 13), suggests 

that the Report represents the response of mainstream institutionalized science to a controversy 

between the judicial/forensic community and the scientific community over the validity of 

fingerprint identification. My reading of the Report would take the characterization farther and 

apply it to the Report as a whole. 

The notion of a scientific paradigm was developed by Kuhn, supra note 6. 

Translation is an important element in actor network theory, one theoretical framework that has 

been developed to understand scientific practice. The explanation here is drawn from Michael 

Callon, “Some elements of a sociology of translation: domestication of the scallops and the 

fishermen of St. Brieuc Bay” in John Law, ed, Power, Action, and Belief: a new sociology of knowledge 

(London, UK: Routledge, 1986) 196. During the process of translation, “the identity of the 

actors, the possibility of interaction, and the margins of maneuver are negotiated and delimited.” 

Translation involves four “moments” in Callon’s vocabulary: problematization, interessement, 

enrolment, and the mobilization of allies. All four elements are presented in the context of his 

analysis of the development of the domestication of scallops in the Bay of St. Brieuc, starting 

with a method already in use in Japan. 

During the process of problematization, actors set out a question that may be answered and at 

the same time make themselves essential to answering that question by the way they define and 

identify the actors needed to answer the question. This process serves a political purpose by 

making the researchers a necessary part of the problematization itself. 

The second stage is interessement. At this stage the actors who were made part of the 

problematization can allow themselves to be captured and defined by the plan or resist its 

definition in some manner. It should be emphasized that the actors need not be human, and 

Callon describes how scallop larvae resist the interessement device of a collector much as he 

describes the interessement of scientific colleagues and fishermen’s professional organizations. 

Third, even once trapped or cajoled into interessement, scientists still need to form a series of 

alliances to allow the program to be completed. This process is enrolment. 

In the final stage, the spokesmen who speak for the other actors are identified, and they allow 

the diffusion of what happened during the process of translation and the result of the consensus 

that occurred among the actors during the process.


more skeptical view of forensic techniques mean as this new forensic science 

makes its way into Canadian courts Might they, for example, have difficulty with 

the new emphasis on statistics that this approach would require How will they 

respond to controversies that might be engendered by this transition, such as 

those that develop when standards of practice are in flux In this instance, we 

have an advantage in that we can study a similar type of forensic evidence: DNA. 

As we have seen, the NAS report demonstrates how different forensic DNA is 

from other forms of forensic evidence. While it might be a model for other 

forensic techniques, that does not mean that it was without its own difficulties 

when it was introduced to Canadian courts. If other forensic techniques are to 

follow the DNA model, might they expose cracks in Canadian law’s approach to 

forensic science that will become evident when these other techniques begin to 

adopt DNA methodology as their model If so, understanding the difficulties that 

might be raised by the adoption of DNA as a model for forensic science will 

require revisiting the difficulties that were encountered when DNA was first 

introduced into Canadian courts. 

IV. 

QUESTIONING FORENSIC DNA TECHNOLOGY 

When forensic DNA technology was first introduced, there were questions 

about the interpretation of the sort of evidence given by DNA experts. 39 DNA 

evidence depends on probabilistic statements of the likelihood of a false claim 

that two DNA samples came from the same individual. 40 These probabilistic 

statements require statistical, empirical verification and cannot be validated solely 

based on individual clinical experience. The types of probabilistic claims made by 

DNA evidence have raised a series of difficulties for courts concerned with the 

potential for misuse of probabilistic claims. In the field of criminal forensics the 

way DNA experts resorted to probabilistic statements in qualifying their claims 

represented a significant change in the sort of evidence heard in the criminal 

courtroom. 

This section will characterize some of the debates that occurred in the context 

of the early development of DNA technology, which are the debates that drove 

the Canadian DNA cases. 

Courtroom analysis of scientific expert evidence is constrained by the nature 

of the technology used to produce and empirically validate the opinion evidence 

presented by the putative experts in the particular specialty in question. For 

example, a fingerprint examiner can identify an individual from an arrest record 

39 

40 

See David H Kaye “The Admissibility of DNA Testing” (1991) 13 Cardozo Law Review 353 for a 

brief, relatively early American discussion of the issues facing courts confronted with forensic 

DNA. 

NRC 1996, supra note 2 at 89-90.


based upon his or her fingerprints, a process notionally quite different from that 

of connecting a crime-scene partial print to a record. 41 In the case of DNA 

evidence several types of forensically relevant statements can be drawn from the 

comparison of two DNA samples. 

The two samples might simply confirm identity, having been drawn directly 

from the same person at different times. While issues of inclusion and exclusion 

criteria will come up in this situation, the declaration of a match will not be 

circumstantial evidence for the commission of the crime itself. The evidence 

might be exculpatory; DNA evidence left at a crime scene may not match that of 

the defendant. In this case the primary issue for the courts is whether the 

exclusion criteria are robust. Alternatively, the evidence may be inculpatory; DNA 

left at the crime scene may link the defendant to the commission of a crime. In 

this instance the inclusion criteria are at issue. 

These types of statements are generally similar to those that might be made by 

other forensic experts and generate similar issues in terms of validating the 

inclusion and exclusion criteria used by the expert who makes the conclusion. 

However, techniques such as fingerprinting have usually not depended upon 

statistical verification of specific claims of accuracy in order to be considered valid 

by the courts. Forensic techniques like fingerprinting instead depended upon the 

clinical judgment of the individual expert, a judgment that was historically 

supported by the visual demonstration of match criteria to a judge and jury. 42 In 

this way, DNA is fundamentally different from most existing forensic techniques. 

Although DNA examiners have used visual aids in explaining their match 

criteria, 43 their claims of a valid match are dependent upon a variety of factors 

including the prevalence of certain genetic traits in human populations, a 

comparison that can only be made statistically. DNA examiners are thus in the 

business of producing numbers and in particular probabilistic statements. Not 

only can they declare a match or non-match, they can also tell the trier of fact 

something about the likelihood of that declared match being incorrect, a 

likelihood that might be expressed in words but is ultimately derived from a 

numerical probability figure. 44 This allows DNA examiners to provide several new 

41 

42 

43 

44 

Soren D Frederiksen, The Mediating Discourses of the Expert Witness: Science, Fingerprinting, and the 

Law (Masters of Political Science Thesis: Carleton University, 2000). This is related to the 

history of fingerprint adoption: as a simple identification technique, fingerprinting represents a 

drop-in replacement for Bertillionage, a precursor identification technique also based on 

measuring body characteristics. Solving crimes using latent partial-prints changes the legal status 

of a fingerprint by making it circumstantial evidence of the crime itself and raises a series of 

questions as to just how much of a partial print is required to declare a match. This last issue has 

been addressed in detail by Cole, supra note 36. 

Simon A Cole, Suspect identities: a History of Criminal Identification and Fingerprinting (Cambridge, 

Mass: Harvard University Press, 2001) at 191. 

NRC 1996, supra note 2 at 68. 

NRC 1996, supra note 2 at 192 – 202.


types of evidence not historically available to other forensic examiners: the 

likelihood that a match could have occurred by chance between two random 

individuals in that population, given certain theoretical assumptions and 

population characteristics. 

This type of statement raises serious issues of interpretation both in terms of 

admissibility and in terms of weighting, since its forensic meaning is less clear 

than the more traditionally expressed match or no-match results. However, if 

other forensic techniques move towards the DNA model, similar probabilistic 

statements may be made concerning their conclusions as well. Thus, issues raised 

by DNA technology are likely to become relevant to other forensic disciplines. 

We often speak of the use of forensic DNA testing as though a single 

technique was involved, but while the initial forensic use of DNA for 

identification purposes was developed in England in 1985, 45 further techniques 

based on differing methodologies were quickly found. A full discussion of the 

technologies behind DNA testing is beyond the scope of this paper. 46 However, as 

most of the cases discussed here involve one of the following two techniques of 

DNA matching, they will be briefly described before a discussion of the early case 

law in the United States and the United Kingdom. 

In 1985, Alec Jeffreys developed DNA profiling, which was the first 

technique that came into general forensic use. 47 This technique came to be 

described as “DNA fingerprinting” and was based on the variation in restriction 

fragment length in areas of great genetic variability. This “restriction fragment 

length polymorphism” (RFLP) technique produced profiles that were said to be 

unique between individuals, leading to the comparison with fingerprints. 48 It was 

almost immediately used to prove paternity in an immigration case in the UK, in 

1986 it was used to exonerate a murder suspect, and in 1987 the first DNA 

conviction was obtained. 49 

The second technique uses the polymerase chain reaction (PCR) to amplify a 

variable area of DNA and then uses a series of genetic probes to identify specific 

genes that may or may not be present. 50 Using this technique, different areas of 

the human genome can be examined by using genetic probes that indicate the 

presence of particular sections of DNA. One of the earliest methods using the 

PCR technique was the DQ-alpha system developed by Dr. Edward Blake of 

45 

46 

47 

48 

49 

50 

Leonard J Deftos, “Daubert & Frye: Compounding the Controversy Over the Forensic Use of 

DNA Testing” (1994) 15 Whittier L Rev 955 at 955. 

See NRC 1996, supra note 2 for such a discussion. 

David L Faigman, “The Tipping Point in the Law's Use of Science: The Epidemic of Scientific 

Sophistication that Began with DNA Profiling and Toxic Torts” (2001) 67 Brooklyn L Rev 111 

at 116-117. 

William C Thompson, “Evaluating the Admissibility of New Genetic Identification Tests: 

Lessons from the “DNA Wars” (1993) 84:1 Crim L & Criminology 22 at 26-27. 

Supra note 47 at 117. 

Supra note 48 at 28.


Forensic Sciences Associates in 1986, 51 although it was not in widespread use 

until the 1990s. Today, PCR techniques dominate. 

When looking at scientific evidence generally, forensic DNA evidence seems 

to differ in kind as much as in quality. It seems almost infallible, providing its 

claims of accuracy in the form of numerical probabilities. It also arose at a time 

when scientific evidence was increasingly prevalent in American courts, and DNA 

evidence became part of a process of what Faigman describes as reaching the 

“tipping point” for a change in the law’s relationship with scientific evidence; a 

change that Faigman argues led to the Daubert decision. 52 In that decision, the 

United States Supreme Court radically altered the federal procedure for admitting 

scientific evidence, requiring that courts adopt a gatekeeping role to prevent the 

admission of questionable scientific evidence. 53 This represented an important 

change in the way courts dealt with scientific evidence. Similarly, the Supreme 

Court of Canada has also clarified the procedure for admitting novel scientific 

evidence in R v Mohan. 54 Faigman’s contention is that these important changes in 

evidence law are, in part, the result of DNA evidence changing the parameters 

and expectations surrounding the use of scientific evidence. 55 

DNA evidence has clearly helped courts to make more just decisions. This 

was demonstrated clearly in its power to help free the unjustly convicted. 56 In 

Canada, perhaps the most obvious example of this phenomenon is the case of 

Guy Paul Morin where DNA evidence not only freed Mr. Morin, it also 

implicated another person in the crime for which he had been convicted. 57 The 

importance of this in the rhetorical basis for accepting DNA evidence is apparent: 

DNA evidence of identification is often touted by its proponents (including 

prosecutors) as a great tool for the exclusion of innocent suspects. This argument 

is usually dismissed by opponents (including defence attorneys) of the technology, 

who apparently consider this observation disingenuous, as if protecting the civil 

liberties of individuals is not properly the province, or the concern, of 

prosecutors. Criminal defence attorneys (and hence those who align themselves 

with the defence in criminal cases) seem to discount the power of DNA to absolve 

51 

52 

53 

54 

55 

56 

57 

Ibid at 29. 


William Daubert et al v Merrell Dow Pharmaceuticals Inc, 509 US 579, 113 S Ct 2786, 125 L Ed 469 

(SCOTUS 1993) [Daubert]. 

R v Mohan, [1994] 2 SCR 9, 18 OR (3d) 160 [Mohan]. 


For a review of the American experience, see C Ronald Huff, “Wrongful Convictions: The 

American Experience” (2004) 46:2 Can J Crim & Crim Just 107. 

See R Overstall, “Mystical Infallibility: Using Probability Theorems to Sift DNA Evidence” 

(1999) 5 Appeal 28 at para 17 for how this may have influenced the Terceira decision at the Ont 

CA.


the innocent suspect from suspicion because they have never had a client who was 

exonerated by this evidence. 58 

While the use of forensic DNA evidence was most visible in the context of 

criminal cases, it was also immediately and widely used in family law to determine 

paternity, where it provided an unquestionable alternative to the earlier bloodtyping 

methods. 59 This unerring means of determining paternity (the ability of 

DNA tests to determine paternity was never seriously challenged) has led to a 

perhaps inappropriate emphasis on biological relatedness in family law. 60 This 

sense that DNA somehow provides important and private information about a 

person has led to privacy concerns in Canada over the operation of DNA 

databanks. 61 Coupled with the forensic power of DNA technology, these sorts of 

issues likely increased the cultural stakes involved in the use of DNA in criminal 

cases. 

It is therefore perhaps not surprising that DNA evidence almost immediately 

came under serious question and by 1991 the journal Science published an issue 

devoted to it. 62 The National Research Council published a report in 1992 that 

sought to address a series of controversies over the use of DNA. 63 To that end it 

was not a notable success and controversy remained through the mid-1990s, when 

better population data and changing technologies, including the increased use of 

PCR methods and better standardization, in part the result of a second National 

Research Council report in 1996, 64 brought the controversy largely to an end. 

What were the kinds of controversies that emerged from these early DNA 

debates Writing in 1993, Thompson identified three major areas of criticism 

related to RFLP: the adequacy of standards and controls for assuring the reliability 

of the forensic tests, the adequacy of the procedures used by forensic laboratories 

to determine whether DNA profiles “match”, and the accuracy of the procedures 

used to determine the statistical frequency or rarity of DNA profiles. 65 He also 

58 

59 

60 

61 

62 

63 

64 

65 

Jeffrey Baird, “Forensic DNA in the Trial Court 1990-1992: a Brief History” in Paul R Billings, 

ed, Genetic Identification and Criminal Justice, (Cold Spring Harbor Laboratory Press, Plainsview, 

New York: 1992). 

Timothy Caulfield, “Canadian Family Law and the Genetic Revolution: A Survey of Cases 

Involving Paternity Testing” (2000) 26 Queen's LJ 67. 

Ibid at 73. 

Julianne Parfett, “Canada's DNA Databank: Public Safety and Private Costs” (2002) 29:1 Man LJ 

33 at 34. 

See L. Roberts, “Fight Erupts Over DNA Fingerprinting” (1991) 254 Science 1721 for a 

description of the debate from an editor’s perspective as well as a summary of the various 

positions taken. 

NRC 1992, supra note 2. See David H Kaye “The Forensic Debut of the NRC's DNA Report: 

Population Structure, Ceiling Frequencies, and the Need for Numbers” (1995) 96 Genetica 99- 

105 for one of many critiques of this report. 

NRC 1996, supra note 2. 

Supra note 48 at 28.


identified similar issues with the PCR DQ-alpha technique developed by Forensic 

Science Associates: 

Although no one questions the theory underlying the procedure, concerns have arisen 

about its susceptibility to errors caused by inadvertent contamination of samples or poor 

“fidelity” of DNA amplification. Concerns have also been raised about some of the 

procedures used by FSA for interpreting results and for estimating the frequency of DQalpha 

types. 66 

As a result of his analysis, Thompson argues that under certain circumstances 

the finding of a match should be excluded where it can be reasonably argued that 

the match criteria should have been more narrowly set. 67 The most likely reason 

for doing so would be because the examining procedures did not take into 

account varying levels of diversity in particular genetic markers in different human 

subpopulations. Match probabilities are dependent on variation in the particular 

traits identified in the population of the accused and other possible suspects. 68 If 

these individuals belong to a smaller group of people that are different from that 

used by the forensic examiner to generate the match probabilities then, 

Thompson argues, there is reason to doubt the forensic claims made. 69 This was 

called the “subpopulation problem”. 

Some objections were procedural, objecting to an American legal regime 

coming out of the Castro 70 decision that had radically changed the way pre-trial 

hearings were held. This procedure was one that at least one observer saw as 

constituting “judicial abdication of the court’s role” since it allowed an appellate 

court to overturn a trial court decision because the “scientific landscape” had 

changed since the trial decision. 71 Kaye, while rejecting Thompson’s call to 

exclude forensic DNA in certain circumstances, argued that if his logic were to be 

carried forward then match claims themselves should be eliminated and replaced 

with probabilistic statements. 72 

66 

67 

68 

69 

70 

71 

72 

Ibid at 29 [footnotes omitted]. 


NRC 1996, supra note 2 at 89. 

Roberts, supra note 62, identifies the specific problem as related to the lack of information on 

genetic variation within ethnic subpopulations. See also Paul E Tracy & Vincent Morgan, “Big 

Brother and his Science Kit: DNA Databases for 21st Century Criminal Control” (2000) 90:2 

Crim L & Criminology 635, David H Kaye, Michael E Smith & Edward J Imwinkelried, “Is a 

DNA Identification Database in your Future” (2001) 16:3 Crim Just 4, and Jonathan J Koehler, 

“The Psychology of Numbers in the Courtroom: How to make DNA-match statistics seem 

impressive or insufficient” (2001) 74:5 S Cal L Rev 1275. For further contemporary discussions 

of this and other problems in DNA profiling see Deftos, supra note 45, and Kaye, supra note 63. 

People v Castro, 144 Misc 2d 956, 545 NYS 2d 985 (NY Sup 1989). 

Rockne P Harmon, “Legal Criticisms of DNA Typing: Where's the Beef” (1993) 84:1 Journal of 

Criminal Law and Criminology 175 at 177-178. 

David H Kaye, “The relevance of “matching” DNA: is the window half open or half shut” 

(1995) 85:3 Crim L & Criminology 676 at 694.


Even once the controversy over how DNA match statistics should be 

computed was resolved, these probabilistic statements themselves were seen as 

problematic by many observers, leading to a significant push to bar the discussion 

of match statistics in front of juries. 73 One of the worries associated with 

presenting probabilistic evidence is the danger of committing logical fallacies, that 

is of the trier of fact reaching conclusions that appear to make sense but are 

actually logical errors. In the case of DNA evidence, the best-known example of 

this sort of problem is known as the “prosecutor’s fallacy” where the probability of 

a random DNA match is conflated with the probability of innocence of the 

accused. 74 While the prosecutor’s fallacy is a mistake that can be made by any trial 

actor, jury behavior has come under particular scrutiny with the idea that juries 

tend to overweight evidence presented numerically. Mock-jury studies have to at 

least some extent supported this idea and even suggested that the precise wording 

used to present such evidence may significantly influence jury deliberation. 75 

DNA evidence seems to place significant demands on all legal actors, including 

juries, that they may or may not be able to meet. 

Defence lawyers also face challenges when DNA evidence is presented. One 

of the biggest problems noted has been the tendency of defence counsel to not 

adequately challenge DNA evidence 76 and make inappropriate or unnecessary plea 

agreements. 77 While this “blackboxing” 78 occurs with other forms of forensic 

evidence, 79 it is particularly notable with forensic DNA. This may occur as much 

because of a lack of the resources required to retain qualified experts to evaluate 

the quality of the forensic DNA evidence provided. This is particularly a problem 

for public defenders in the United States as their workload has increased, and at 

least one office has adapted to this problem by developing in-house expertise 

among their own legal staff to be able to perform at least limited evaluations of 

such evidence. 80 Any lack of adequate defence review is troubling since errors in 

73 

74 

75 

76 

77 

78 

79 

80 

See, for example, Harmon, supra note 71, at 185. 

See Vincenzo Rondinelli, “Three Card Monty: Presenting DNA Statistical Evidence To Juries” 

(2002) 3 CR (6th) 52 for a summary of the logical problems possible when DNA evidence is 

used. 

See Koehler, supra note 69, for an example of this sort of study. 

William C Thompson et al, “Part 1: Evaluating Forensic DNA Evidence: Essential Elements of a 

Competent Defense Review” (2003) 27 Champion 16 online: National Association of Criminal 

Defense Lawyers . 

William C Thompson et al., “Part 2: Evaluating Forensic DNA Evidence: Essential Elememts of 

a Competent Defense Review: Breaking Open the Black Box: How to Review the Electronic 

Data” 26 Champion 24 online: National Association of Criminal Defense Lawyers 

. 

“Blackboxing” here refers to a situation where the internal elements of a test become invisible 

and the focus is only on the result. 

See Janine Arvizu, “Shattering the Myth: Forensic Laboratories” (2000) 24 Champion 18. 

Michele Nethercott, “Faulty Forensic Evidence” (2003) 27 Champion 61 online: National 

Association of Criminal Defense Lawyers .


laboratory procedure and even fraud are as possible with forensic DNA testing as 

with any other form of forensic evidence. 81 There is also the potential for 

prosecutorial interference. 82 

V. 

EARLY FORENSIC DNA IN CANADIAN COURTS 

Canadian courts have shown interest in all three questions Thompson 

identified. Stated slightly differently from the way he presented them, three issues 

stand out in the review of the Canadian DNA evidence cases that follows. The 

first is a concern with the subpopulation problem, one that may be particularly 

acute when potential suspects are part of a small relatively homogenous 

population, such as among Canada’s Native people. The second is a concern over 

how juries will respond to the complexities of evaluating DNA evidence. Third, 

Canadian courts have shown some interest in laboratory standards and 

procedures. The focus will be on the first two, since they show more general 

methodological concerns that are applicable to techniques other than forensic 

DNA itself. In their handling of these issues, Canadian courts encountered 

difficulties that were never fully resolved. It is these difficulties that may hinder 

the use of a DNA-derived methodology in other forensic sciences in Canada. 

This section is a study of the early cases concerning the use of DNA evidence 

in Canada. As we will see, this history shows that the adoption of DNA was not a 

smooth one and that some of the decisions made, although ultimately reasonable 

given the extraordinary quality of forensic DNA as a technique, should be seen as 

highly problematic. Canadian courts have had a series of difficulties in addressing 

the requirements of using forensic DNA evidence and it is in the causes of these 

difficulties that one finds hints as to the future of post-NAS Report forensic 

science. 

One of the earliest Canadian cases to discuss DNA evidence was R v Parent, 83 

a multiple sexual assault trial in Edmonton. In this case, both the defence and 

prosecution accepted the admissibility of forensic DNA evidence that was 

presented by the defence as exculpatory. The DNA evidence excluded the accused 

in four out of the eleven counts with which he was charged and helped to 

establish a reasonable doubt over several of the other charges because of the 

Crown’s reliance on similar fact evidence. 84 The accused was ultimately convicted 

on only one count for which he admitted guilt. 

81 

82 

83 

84 

See Harmon, supra note 71, and Thompson, supra notes 76 and 77, for examples of fraud in 

DNA laboratories. 

See Peter J Neufeld, “Have You No Sense of Decency” (1993) 84:1 Journal of Law and 

Criminology 189 for examples of prosecutorial interference with forensic DNA procedure. 

R v Parent, [1988] 91 AR 307, 46 CCC (3d) 414. 

Ibid.


The first case to deal explicitly with the admissibility of forensic DNA in the 

context of a criminal trial was R v McNally. 85 In a brief decision during the voir 

dire, Ontario District Court Judge Flannigan admitted forensic DNA by 

analogizing the results obtained from this novel technique to those of other forms 

of forensic evidence that were commonly admitted: 

It seems to me [DNA] is no different from evidence of fingerprints, fibre expertise, blood 

analysis or any of the expert evidence that the Court hears from time to time. ... As I said at 

the outset, it seems to me that it is on no greater, or lesser, footing than any other expert 

evidence that is to be put to a trier of fact, in this case the jury, to decide whether or not 

they will accept the evidence present[ed] to them just as it will be for them to decide 

whether or not they will accept, or reject, the evidence of the complainant as to 

identification or the evidence of the other expert witnesses as to hair samples, et cetera. 86 

This decision leaves the major task of evaluating scientific evidence to the 

trier of fact at the weighting end of the analysis. 

In R v Bourguignon, 87 Claude Bourguignon was the uncle of a two year old 

child who had been sexually assaulted and strangled and then left in a dumpster 

near his home. Originally suspicion had focused on the child’s father and the twoyear-old’s 

uncle, but the father’s testimony coupled with the DNA evidence from 

semen left on the child’s bed pointed to the uncle, 88 and the DNA evidence was 

crucial to establishing a circumstantial case. 

The judge in Bourguignon relied heavily on the available American and British 

jurisprudence, citing New York v Castro 89 for the general admissibility of DNA 

evidence: 

1) There is general scientific acceptance of the theory underlying D.N.A. identification. 

2) D.N.A. forensic identification techniques and experiments are generally accepted in the 

scientific community and can produce reliable results. Hence, the Frye standard of 

admissibility is satisfied. 

3) A pre-trial hearing should be conducted to determine if the testing laboratory 

substantially performed the scientifically accepted tests and techniques, yielding sufficiently 

reliable results to be admissible as a question of fact for the jury. 90 

While referring briefly to McNally and to one other unnamed case from the 

“western provinces” (perhaps Parent), the judge relied primarily on US and British 

jurisprudence in the decision. Using Beland 91 for the idea that an expert witness 

was to provide a “ready-made inference” for the trier of fact, the judge suggested 

an important difference between an investigative, as opposed to a forensic, 

technique: 

85 

86 

87 

88 

89 

90 

91 

R v McNally, [1989] OJ No 2630 (QL) [McNally]. 

Ibid. 

R v Bourguignon, [1990] OJ No 1205 (QL) [Bourguignon]. 

Ibid. 


Supra note 87, at para 12. 

R v Beland, [1987] 2 SCR 398, 43 DLR (4 th ).


This is the constant problem of determining when an investigative tool, such as the 

polygraph, should become a forensic tool. For example, the A.L.E.R.T. machine is an 

investigative tool whereas the breathalyzer machine is a forensic tool. And because it is 

such, strict guidelines have been inserted in the Criminal Code to govern the admissibility 

of the results, including its make, the qualifications of the technician and the preliminary 

steps to its operational use. Similarly, with respect to the admissibility of blood samples [sic, 

this was an oral decision]. 92 

Courtroom use of a technique requires a higher level of reliability than 

investigative use by the police, and this is expressed in the case of the breathalyzer 

with a strict statutory framework. 93 The comparison is not to fingerprinting but to 

the statutory framework adopted for drunk driving prosecutions, 94 and therefore 

suggests a preference for a statutory framework for DNA evidence. 

The judge then addressed the admissibility of probability evidence. The judge 

clearly showed skepticism about the qualifications of the forensic DNA expert as 

an expert in probability. Relying on a statement from McWilliams on Evidence 95 

that forensic DNA examiners have a tendency to improperly calculate or present 

match-likelihood, Judge Beaulne suggested that the expression of these 

probabilities requires a different sort of expertise than that possessed by the DNA 

examiner Dr. Waye. 96 Therefore, following Castro, the judge ruled as follows: 

1) There is general scientific acceptance of the theory underlying D.N.A. identification. 

2) D.N.A. forensic identification techniques and experiments are generally accepted in the 

scientific community and produce reliable results. 

3) Mr. Barnes, in his extensive cross-examination has questioned the technique used by 

Doctor Waye, particularly as to the probes used, the database, the lack of peer cross-checks 

and the existence of band shifting. Notwithstanding the short comings (sic) indicated 

previously, Doctor Waye preformed (sic) the tests which he has testified are scientifically 

accepted tests and techniques yielding in his opinion sufficiently reliable results to be 

admissible as a question of fact for the jury. 

4) As a matter of fact and of law, Doctor Waye's opinions as they relate to the theory of 

probabilities are inadmissible in law. 97 

While DNA evidence is admissible, probability evidence would thus only be 

admissible through a specially trained expert, presumably a statistician or 

population biologist. 

Bourguignon seems to have established that probability evidence as to the 

likelihood of a match should not be routinely admitted into Canadian courts. 

92 

93 

94 

95 

96 

97 

Supra note 87, para 18. 

See Criminal Code (RSC, 1985, c. C-46) s 254. 


Peter K McWilliams, Canadian Criminal Evidence, 3d ed, (Aurora, Ont: Canada Law Book, 1988) 

at 9-32. 

Supra note 87, para 28. 

Ibid para 35.


However, in R v Légère, a New Brunswick case that was decided shortly thereafter, 

this limitation was rejected. 98 

While these early DNA cases all discussed admissibility requirements, they 

lacked a rigorous examination of the elements required to allow the admissibility 

of forensic DNA testing. These were either assumed using the analogy to already 

admissible forms of forensic evidence as in McNally or were determined by 

reference to the American jurisprudence as in Bourguignon. None of them make 

much attempt to delve deeply into the science of DNA fingerprinting. 

R v Baptiste 99 is the first case in which a Canadian court undertook a deeper 

analysis of DNA evidence. In this case, the judge first looked into the theory and 

application of DNA testing and in doing so provided us with the first glimpse of 

the Canadian concern over the sub-population problem. To explain the basic 

theory of forensic DNA typing, Justice Hamilton compared the individuality of a 

person’s DNA to the individuality of their fingerprints, thus establishing an 

analogy to a technique long in use in the criminal courts as well as explaining the 

underlying theory of the forensic use of DNA. 100 After a fairly detailed discussion 

of the process of DNA typing, two issues were identified: 

This issue in DNA testing is twofold. First[ly], from what database is the probability of a 

match estimated; and, secondly, is that database an appropriate standard to be used in 

determining the frequency with which a specific gene, that is, a specific sequence of base 

pairs of DNA, is found in a particular population 

In this case the principal attack on the admissibility of the DNA testing is that because the 

accused is a native Indian from the interior of British Columbia there is insufficient data 

available with which to compare his DNA to allow a scientifically based opinion to be 

given. 101 

While fingerprints may be susceptible to visual comparison, DNA techniques 

require some sort of statistical estimation of the random likelihood of a match in 

98 

99 

100 

101 

R v Légère, [1991] NBJ No 729 (QL) (NBQB) [Légère Trial], appealed on the issue of whether 

illegally seized hair samples used in the DNA analysis should have been barred at trial, appeal 

dismissed in R v Légère, [1994] NBJ No 579 (QL) (NBCA) [Légère Appeal]. 

R v Baptiste, [1991] BCJ No 3945 [Baptiste Trial]; note that this case was appealed in R v Baptiste 

(1994), 88 CCC (3d) 211, 51 BCAC 31 [Baptiste Appeal], a decision that will be discussed later 

in this paper. 

Justice Hamilton had earlier made reference to much of early fingerprint jurisprudence in the 

UK, including R v Castleton (1909), [1910] 3 Cr App 74 (Eng), R v Bacon (1915) 11 Cr App 90, 

and the Blackburn Baby Case (see George Godwin, The Trial of Peter Griffiths (University of 

Wisconsin, Madison: 1995)). This jurisprudence appears to be used only to establish the long 

provenance of scientific identification evidence in Anglo-Canadian law, but the lack of reference 

to any of the contemporaneous American cases, cases that might otherwise be considered more 

closely linked to Canadian fingerprinting developments is interesting, and suggests these cases 

may also be part of an attempt at distinguishing Canadian and American expert evidence law. 

However, the development of fingerprinting technology in Canada is very closely linked to that 

of the United States (see Frederiksen, supra note 41). 

Baptiste Trial, supra note 99.


order to validate their claims of a match. 102 These probabilities are computed 

based on a database of DNA samples that is used to predict the variability of 

specific DNA traits in human populations. The problem in this case was that Mr. 

Baptiste was a member of a subpopulation of Native Canadians. Concern existed 

that such a group might not share the same random distribution of probe sites as 

the population used to develop the database used by the testing laboratory. The 

judge therefore was forced make a scientific judgment, whereas in all his earlier 

analysis he could easily rely on the reasoning of other courts and use legal modes 

of reasoning, as seen in his use of legal analogy by including the traditional 

fingerprinting cases in his analysis. However, he set the admissibility standard 

below that of scientific acceptability: “…I note the distinction between the 

scientific concern with a very high degree of accuracy and the lower legal standard 

for permitting evidence to be considered by a jury.” 103 This low standard for 

admissibility effectively removed the need for the judge to inquire further into the 

scientific validity of the evidence in question and left that question for the jury. 

The use of a low admissibility standard, that is a low legal standard for 

admissibility, allowed the judge in this case to avoid deciding on the larger issue of 

the scientific reliability standard for DNA evidence. 

In presenting his evidence, the Crown expert had not provided statistical 

match probabilities due to the ruling in Bourguignon and because the Aboriginal 

DNA database used was based on Coastal British Columbia peoples as opposed to 

the Interior Nations of which Baptiste was a member. 104 Due to these two factors, 

he had instead characterized the possibility of another individual having produced 

the same two samples as “extremely remote” and “remote.” 105 When pressed for 

the probability figures, he provided figures of 1 in 250 000 000 for a blood sample 

and 1 in 9000 for a semen sample taken from the body of the deceased. 106 While 

not expressed directly to the jury, the expert opinion that there was a DNA match 

was logically dependent, if not on the precise accuracy of these figures, then on 

their general reasonableness as ballpark figures. 107 

The defence did not challenge the validity of the procedure used by the 

RCMP in analyzing the DNA samples. Rather, the defence expert emphasized not 

only the limitations of the databases but also hypothesized that there was an 

extremely limited genetic variability of BC interior Aboriginal populations as a 

102 

103 

104 

105 

106 

107 

The requirements are less stringent for the use of exculpatory DNA evidence, which may in part 

explain the less elaborate analysis of cases such as Bourguignon. 

Baptiste Trial, supra note 99. 

Ibid. 

Ibid. 

Ibid. 

Ibid.


result of the smallpox and influenza epidemics of the nineteenth and early 

twentieth centuries. 108 

In deciding on this issue, Justice Hamilton relied on the case of United States 

v Yee 109 where the validity of the FBI DNA database had been upheld after a wide 

range of expert testimony from both the defence and prosecution, the judge 

concluded that “more likely than not that the FBI’s probability estimates were 

reasonably accurate.” 110 Following this decision and similar US jurisprudence, and 

while recognizing some difficulty with extending DNA population findings to 

differing sub-populations, Justice Hamilton admitted the DNA evidence and 

ruled that evidence as to the limitations of this particular set of DNA tests may be 

led as to weight as an issue for the trier of fact. 111 

In Baptiste, as in the earlier Canadian DNA cases, we see a reliance on 

reasoning by analogy to support the proposition that DNA evidence is generally 

admissible. Baptiste also went farther, developing a necessity and reliability test for 

novel scientific evidence. That DNA typing evidence fulfills this test is supported 

by specific reference to early English fingerprint decisions. 112 The historical nature 

of these cases suggests that the analogy is not strictly legal but also historical and 

that the judge felt that he was in a moment similar to that experienced by jurists 

in the early history of that technology. This reasoning was supported by reference 

to American and British decisions where DNA evidence was admitted. 113 The 

admissibility standard is finally set rather low leaving much of the work of 

weighing it to the trier of fact, an approach made easier since evidence of match 

probabilities was not led during the voir dire. This overall approach seems to rely 

primarily on traditional legal reasoning tools of precedent and analogy and leaves 

any serious inquiry into the scientific viability of the evidence to the trier of fact, 

deliberately setting the threshold for admissibility below that used by scientists. 

This case was appealed, and on the issue of the DNA evidence, the British 

Columbia Court of Appeal found that the relevance and trustworthy test was met 

and that the DNA evidence was admissible and could be weighed by a jury. 114 The 

defence argued that, considering the lack of any population data for Baptiste’s 

particular sub-population, there was no basis for any statement as to the 

likelihood of a match in words since proper statistical comparisons were not 

available. 115 The testimony of the witnesses succeeded in turning this question 

into one of a professional clinical opinion: 

108 

109 

110 

111 

112 

113 

114 

115 

Ibid. 

United States v Yee, 129 FRD 629 (USDC ND Ohio 1990). 

Ibid. 

Baptiste Trial, supra note 99. 

Ibid. 

Ibid. 

Baptiste Appeal, supra note 99. 

Ibid at para 31-32.


Q: You wouldn’t use the Caucasian database in attempting to make any conclusions with 

regard to Inuit, for example 

A: Not to give a definitive statistic, I would not. 

Q: …[I]n other words, you wouldn’t be able to say whether it was one in ten or remote or 

rare or something like that 

A: I certainly would not give a figure such as one in ten, but one could qualitatively say in 

my estimation this is a rare finding. 116 

This was the cross-examination of the defence witness, and on this basis the 

Court of Appeal had no trouble supporting the trial judge’s admission of this 

evidence. A new trial was ordered on other grounds; 117 however, what is most 

interesting is how a technique that is explicitly dependent on statistical 

verification by reference to a population database became one that is dependent 

on the professional or clinical judgment of practitioners of the technique. 

Subsequent cases adopted a variety of approaches to admissibility. This 

continued until 1994 when the Supreme Court of Canada in R v Mohan clarified 

the rules for the admissibility of novel scientific evidence. 118 For example, in the 

case of R v Lafferty, the Northwest Territories Supreme Court was faced with the 

problem of an individual who came from a very small sub-population and as in 

Baptiste the defence once again raised objections to the limited sub-population 

data available, although by this time there were substantial databases of other 

Native populations. 119 No special test for the admissibility of novel scientific 

evidence was applied, and a relevance and helpfulness test was used. 120 The DNA 

evidence, including the expression of match statistics, were found to meet this test 

and the population genetics arguments were found to be questions of weight for 

the trier of fact. Analytically, the judge in this case separated the claim of a DNA 

match from the expression of a statistical description of the probability of that 

match. 121 

In the case of R v Legere, the trial judge followed Baptiste and allowed the 

DNA evidence to be admitted with little comment. 122 The New Brunswick Court 

of Appeal accepted this approach to admitting the DNA match claims, but felt 

compelled to discuss the probability figures at some length as the issue of 

subpopulations was raised again in this case. 123 The prosecution had provided 

evidence that sub-population effects were not forensically significant and the trial 

116 

117 

118 

119 

120 

121 

122 

123 




R v Lafferty, [1993] NWTR 218, [1993] 80 CCC (3d) 150. 


Ibid. 

Légère Trial, supra note 98. 

Légère Appeal, supra note 98.


judge pointed to this evidence during jury instruction. 124 The Court of Appeal 

described this instruction in the following terms: 

In effect, what he was telling the jury was to not get tripped up by such words as discrete 

alleles, Hardy-Weinberg Equilibrium, polyzygotes and even monozygotes. He pointed out 

that it is difficult to understand these matters and that jury members are not scientists. He 

correctly pointed out that what jurors have to do is look at the evidence of the scientists 

and decide on the basis of it whether or not they will accept it. 125 

This analysis seemed to express a real willingness to let juries make 

determinations of what weight to apply to scientific evidence yet there also 

seemed to be an unwillingness to see such a determination as scientific. 

R v Terceira, first heard in 1991, was a DNA evidence case that ultimately 

went to the Supreme Court of Canada. John Carlos Terceira was a part-time 

janitor at an apartment building who was charged with the murder and sexual 

assault of a six-year-old girl whose body was found in a boiler room of her building 

ten days after being reported missing. Very few people had access to this room 126 

and all but Terceira were eliminated as suspects using standard blood analysis of 

samples of semen and blood found on the little girl’s clothes. 127 DNA 

fingerprinting identified Terceira as the culprit. 128 

That Terceira was ultimately going to be about the admissibility of scientific 

evidence was obvious to all parties. At the pre-trial hearing the Provincial Court 

judge showed evident discomfort at the prospect of an in-depth review of the 

DNA evidence, suggesting that the court should neither “turn itself into a 

scientific laboratory, nor make its decision on the basis of a “nose count”. 129 

While the DNA evidence was deemed admissible and the case proceeded to trial, 

there is some suggestion from this decision that the judge was not clear that 

statistical analysis was required for the declaration of a DNA match. 130 

When the case went to trial, Campbell J embarked on a rather sophisticated 

analysis of the issues related to the validity of the then-current DNA matching 

techniques. This was fuelled in part by the tactic used by the defence. Rather than 

question the entire technique, the defence chose to question the specific 

methodology and results obtained by the Centre for Forensic Sciences in this 

particular case. 131 In particular, they chose to focus on the then-ongoing scientific 

controversy over the Research Council report 132 that had questioned many of the 

124 

125 

126 

127 

128 

129 

130 

131 

132 

Légère Trial, supra note 98. 

Légère Appeal, supra note 98 at para 84. 

R v Terceira (1998), 38 OR (3d) 175, 123 CCC (3d) 1 (Ont CA) at para 7. 



R v Terceira, [1991] OJ No 2664 (QL) (Ont Ct J (Prov Div), 

Ibid. 

R v Terceira, [1992] OJ No 3719 (QL) at paras 35 (Ont Ct J (Gen Div). 

NRC 1992, supra note 2.


commonly used techniques and assumptions in DNA testing in the early 1990s. 133 

While Campbell J clearly felt that many of the objections raised in that report 

were relevant, he held that: “The NRC report does not detract from the 

admissibility of Ms. Newell’s [the forensic DNA examiner] evidence, however 

strongly it may go as to the weight of the number she would propose to use.” 134 

The Ontario Court of Appeal decision of 1998 supported the decision of 

Campbell J at trial and dismissed the accused’s appeal. Two major grounds of 

appeal concerned the admissibility of the DNA evidence. In the first, the 

appellant argued that the test and the courtroom procedure used by the trial judge 

in finding the DNA evidence admissible were incompatible with the rules for the 

admission of novel expert testimony as developed in Mohan. The second ground 

of appeal related to the DNA evidence was that the jury instructions were 

inappropriate. 135 

On the question of admissibility, the case of R v Mohan had been decided in 

1994, after the trial decision in this case but before the appeal. 136 Mohan 

established a four-part test to determine the admissibility of novel scientific 

testimony: relevance, necessity in assisting the trier of fact, the absence of an 

exclusionary rule, and a properly qualified expert. 137 

In contesting the admissibility decision made by the trial judge the appellant 

argued that a voir dire was required and that the threshold for admissibility used by 

Campbell J was incompatible with Mohan. 138 As seen in the discussion of the trial 

judgment, the defence conceded the basic validity of DNA technology and the 

attack was not on the process used by the Centre for Forensic Sciences. Rather it 

was on the ability of the Centre to properly determine the likelihood of a random 

match. 139 Specifically, the appellant attacked the sufficiency of Ms. Newall’s 

credentials in this specific area as revealed from her cross-examination; her 

reliance upon hearsay reports and the results of tests performed by others; and the 

trial judge’s failure to make findings as to her credibility and the weight to be 

given to her evidence. 140 

On the question of Ms. Newall’s credentials, Justice Finlayson declined to 

pre-empt the trial judge and reassess the reliability of her evidence. 141 As to point 

(b) Justice Finlayson found “abundant authority for the proposition that an expert 

can rely on hearsay reports and tests within the scope of his or her expertise.” 142 

133 

134 

135 

136 

137 

138 

139 

140 

141 

142 

Supra note 131 at paras 36-37. 




Supra note 54 at 11, as cited supra note 126 at para 20. 

Supra note 126 at paras 13 & 19. 




Ibid at para 32.


The Court of Appeal decided that the trial judge need only find that the 

Crown expert had sufficient skill, knowledge, or expertise to provide an opinion 

that would be helpful to the trier of fact in reaching a just decision. Once the 

basic methodology was deemed admissible, it was the role of the jury to determine 

if this particular application of the methodology was appropriate. 143 The standard 

for qualification of an expert was found to be on the balance of probabilities even 

when novel science was in question. 144 Furthermore, Finlayson JA held that no 

special burden should be placed on DNA evidence in that it was only another 

form of identification evidence, analogous to other commonly used forms of 

identification such as fingerprints and dental impressions. 145 

The appellant also argued that whether or not the DNA evidence was 

deemed to be admissible, there was significant danger of the jury interpreting the 

probability estimates provided by the DNA expert witness as representing the 

probability of the appellant’s innocence. 146 He also argued that DNA evidence 

deserved a special hearing and a higher standard of proof, using Mohan’s 

conclusion that as expert testimony approaches the ultimate issue it deserves 

greater scrutiny. 147 The Court found that the danger of this “mystic infallibility” of 

DNA evidence was amply handled by the testimony of defence experts as to its 

limitations and possible problems and through appropriate jury instruction. 148 

The Court of Appeal generally accepted the trial judge’s shift of most of the 

scientific analysis to the trier of fact. 149 The admissibility inquiry at the voir dire is 

thus a procedure with a relatively low threshold requirement. This requirement in 

this case was largely met by the admission on the part of the defence of the 

general admissibility of DNA evidence generally as well as by the credentials of 

Ms. Newall. The jury instructions become vital, and after an analysis of the jury 

instruction Finlayson JA set out the requirements for an appropriate jury 

instruction where DNA evidence is proffered: 

At the conclusion of the evidence, the trial judge in his instruction should advise the jury 

in the normal way as to the limits of the expert evidence and the use to which it can be put. 

Additionally, in the case of DNA evidence, he or she would be well advised to instruct the 

jury not to be overwhelmed by the aura of scientific infallibility associated with scientific 

evidence. The trial judge should tell them to use their common sense in their assessment of 

all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of 

circumstantial evidence. 150 

143 

144 

145 

146 

147 

148 

149 

150 








Ibid at para 65.


Terceira was appealed to the Supreme Court of Canada, and in a short oral 

judgment, Iacobucci J held that the Court was in substantial agreement with the 

Court of Appeal’s decision and with Campbell J’s approach at trial, and no 

further reasons were provided. 151 

VI. 

LATER FORENSIC DNA IN CANADIAN COURTS 

In the early DNA cases, courts were faced with a series of problems when 

confronted by the question of whether or not to admit DNA evidence. In general 

Canadian courts have been willing to admit DNA, generally on the basis of its 

acceptance in other jurisdictions, and often without very deep analysis. However, 

several specific issues have caused Canadian courts to conduct deeper analyses of 

the science behind DNA testing and have echoed some of the issues that became 

apparent in the “DNA wars” of the 1980s and 1990s. In particular, the issue of 

subpopulations in sampling regimes was vitally important to Canadian courts 

confronted with Aboriginal defendants. Although the cases do show some 

awareness of this underlying controversy, the approaches taken seem more 

designed to avoid rather than directly address the underlying scientific 

disagreement. 

By the time serious attention was given to the subject of DNA admissibility, 

in the 1990 case of R v Bourguignon, there was already a considerable body of 

American case law and a growing controversy over admissibility in that country. It 

is therefore not surprising to see a significant reliance on American case law and 

in particular on the Castro decision for its analysis of the properties of this new 

form of evidence. 152 Despite this reliance on American case-law, Bourguignon 

rejected the American approach to the general rules surrounding expert evidence 

and instead relied on the Supreme Court of Canada’s decision in Béland, the 

then-leading case on the admissibility of expert evidence. In this case, as in others, 

the general admissibility of forensic DNA evidence was not really at issue and 

Canadian courts seem quite content to rely on American decisions and in 

particular Castro for this proposition. Therefore, the basic validity of the science 

behind DNA testing is not at issue. 

What is at issue in Bourguignon, and indeed in many of the DNA cases, is not 

whether the expert evidence is useful and relevant but rather how it ought to be 

expressed in the courtroom. In the Canadian cases this debate has not only been 

about whether and how probability figures ought to be presented but also whether 

such figures are accurate when small populations are involved. It is not accidental 

that Bourguignon, Lafferty, Baptiste, and Legere involved Aboriginal defendants who 

argued that the existing DNA databases could not be used to accurately predict 

151 

152 

R v Terceira, [1999] 3 SCR 866, 46 OR (3d) 96. 



chances of a random match in their smaller and genetically understudied 

communities. Not only was how DNA matches ought to be reported (if indeed 

they ought to be reported numerically at all) at issue, the accuracy and reliability 

of those very same numbers was also the subject of significant question. These 

were not questions unique to the courts. A significant scientific controversy had 

developed in the early 1990s over just this question and there are elements of this 

scientific controversy in the debates occurring in Canadian courts during this 

time. 

These controversies had been largely resolved by 1998 when Terceira reached 

the Supreme Court of Canada, in part by changes in techniques and also by better 

and more inclusive data. In Terceira, the focus was on the appropriateness of jury 

instruction by the trial judge as to how to weight the DNA evidence presented to 

them. Both the Ontario Court of Appeal and the Supreme Court of Canada 

approved the approach taken at trial, and focused in some detail on the transcript 

of that jury instruction. This legal controversy itself has produced a scientific 

interest in those who study jury behavior, again suggesting a strong link between 

legal and scientific controversy in the DNA environment. Ultimately much of the 

issue was left to the jury as an issue of weight, and this led to a lengthy jury 

instruction. Indeed, in the jury instruction in Terceira, Campbell J went so far as 

to compare the problem presented by the probabilistic statements of the DNA 

experts to the problems faced by nineteenth century juries where miniscule 

quantities of poison were discussed, emphasizing the historical continuity of the 

jury function. 

One can make a series of observations from the Canadian DNA cases. The 

first point to draw out is the great complexity and number of actors involved in 

the various controversies surrounding DNA, including judges, lawyers, scientists, 

government bodies, and juries. The second major point is the clear prominence of 

legal needs and legal actors among them. While DNA may have started its 

existence as a useful laboratory technique for identifying specific genes (the 

original meaning of the DNA fingerprint) it was adapted and then rapidly applied 

to a forensic context and it was in this context that formalized match criteria and 

probabilistic statements of match criteria were required to legally validate the 

technique. Third, this concern led to a scientific controversy that erupted over the 

subpopulation problem and played itself out in Canadian courts in the early 

1990s. While fundamentally a scientific objection about the accuracy of match 

statistic estimations, this controversy drew its importance from the legal setting in 

which it occurred. Fourth, Canadian courts, while concerned with the potential 

misapprehension of these very match statistics by juries and thus producing some 

early decisions not to admit match statistics, eventually chose to allow them to be 

presented to juries but required a relatively complex jury instruction aimed at 

preventing such misapprehensions. The Canadian solution to DNA evidence has 

been to find it broadly admissible and to allow opposing testimony as to weight to


be considered by the jury. Taken together, these four factors (the complexity of 

interaction between legal and other actors, the primacy of legal actors and 

institutions, the importance of scientific controversy, and the difficult role of the 

jury) characterize the early Canadian jurisprudence surrounding forensic DNA 

evidence. 

Since Terceira there have been two Supreme Court of Canada decisions and 

one decision of the Ontario Court of Appeal that have significantly advanced 

Canadian evidence law, and we have seen a movement towards increasing inquiry 

at the admissibility stage into the scientific reliability of purported scientific 

evidence. In R v J–LJ the Supreme Court emphasized the gatekeeper role of the 

courts and quoted, favourably, from Daubert, the leading American Federal 

evidence decision. 153 Daubert, in particular, emphasized the scientific reliability of 

purported scientific evidence and developed a four-part test that relied, in part, on 

a reading of Karl Popper’s philosophy of science. 154 In R v Trochym, the Supreme 

Court extended the novel science approach of Mohan and R v J–LJ to previously 

admitted testimony that had come under question and rejected hypnotically aided 

testimony. 155 In R v Abbey, Ontario Court of Appeal Judge Doherty used a twostep 

approach to implementing the Mohan guidelines in the context of nonscientific 

expert testimony. 156 This approach consisted of a rule-based evaluation 

of the preconditions to admissibility followed by a discretionary gatekeeper 

analysis along cost-benefit lines, significantly clarifying the approach to be 

taken. 157 Abbey made it clear that expert testimony based on qualitative expertise 

remains admissible in Canada and that specific factors can be developed to 

identify reliable qualitative expertise. 158 

The post-Mohan cases suggest that a path is available for the re-evaluation of 

forensic sciences brought into question by the NAS Report, and do so in what 

seems to be an explicitly scientific context. Three general observations can be 

made about these three decisions. First, in both J–LJ and Trochym, there is an 

explicit distinction made between appropriate standards for the clinical use of a 

scientific technique and its use in a forensic context. Thus, despite the trend 

towards a more scientifically rigorous form of analysis by the courts, the standard 

that will be used is still by necessity at least in part a legal one. Second, Trochym 

was in some sense an easy case since the original expert, whose opinion had been 

crucial in the development of both the American and Canadian jurisprudence, 

changed his view to the opinion that “hypnotically induced memories should 

153 

154 

155 

156 

157 

158 

R v J-LJ, 2000 SCC 51, [2000] 2 SCR 600 at para 28-34, quoting Daubert, supra note 53 at 593-94. 

Daubert, ibid. See Karl Popper, The Logic of Scientific Discovery, (London: Routledge, 2002). 

R v Trochym, 2007 SCC 6, [2007] 1 SCR 239. 

R v Abbey, 2009 ONCA 624 (CanLII), 97 OR (3d) 330. 


Ibid at para 104-126.


never be permitted to form the basis for testimony by witnesses or victims in a 

court of law.” 159 As Deschamps J stated: 

Since the Clark guidelines are derived from Dr. Orne’s testimony in Hurd, it would be 

disturbing for this Court to blind itself to the subsequent developments in the American 

cases. With the basic reliability of post-hypnosis evidence increasingly in question, judicial 

approaches to such evidence have tended to shift from an assessment of the weight to be 

attributed to post-hypnosis testimony to whether it should even be admissible. 160 

In essence, there was little scientific controversy for the court to address in 

Trochym, which makes it quite unlike the DNA cases. If this is the standard that 

has to be met to revisit currently admissible expert testimony, it is a high one 

indeed, and there is no evidence that trial courts are using Trochym to allow 

widespread attack on conventional forensic techniques. 161 Third, while Abbey 

emphasized the gatekeeping role of the courts, it raises the possibility that 

controversies could develop over whether a forensic technique should be 

evaluated quantitatively or qualitatively, and, as we have seen, the NAS Report 

often favours a quantitative over a qualitative approach to determining reliability 

while forensic practitioners often favour a qualitative one. 

While these cases provide a framework on which further jurisprudence may 

be developed, they do not change the fundamental evidential difficulties faced by 

trial courts that must evaluate challenges to scientific evidence. This is because the 

difficulties that have been described in this paper were often not strictly speaking 

doctrinal but instead are characteristic of the interaction between the courts and 

the scientific community during the course of a scientific controversy. While the 

post-Mohan decisions have shifted the framework within which that interaction 

occurs, there is no reason to assume that the underlying difficulties have been 

solved. The complexity of this evidence remains and legal needs and definitions 

remain prominent. Scientific controversies will continue to occur; indeed Abbey 

opens the door to a new type of controversy over the proper characterization of a 

particular technique. Where these decisions have helped is in strengthening the 

gatekeeping role of the courts, which may significantly protect juries from 

misleading testimony. However, difficulties over the jury’s interpretation of 

statistical and other forms of complex scientific evidence are bound to remain. 

VII. 

CONCLUSION 

If other forensics disciplines begin to follow the lead of DNA and start to 

incorporate many of the changes requested by the National Academy’s Report, 

many of the issues that faced Canadian courts during these early days of the 

159 

160 

161 



Noting up Trochym in Quicklaw show no case where it has been followed in this context.


forensic use of DNA will need to be revisited in new contexts. This can be seen in 

two ways. First, specific issues with new forensic evidence may turn out to be 

analogous to those faced by the courts during the DNA cases, but the special 

nature of DNA evidence may make the existing jurisprudence not helpful with 

these new forms of evidence. Second, the broader patterns related to the kind of 

evidence and the challenges raised by it that were seen in the DNA cases may 

provide some indication of the kind of challenges that the courts will face if there 

is a more general change in the way forensic evidence is presented. 

In the DNA cases, Canadian judges generally admitted DNA evidence and 

left most questions about the relative importance of such evidence to the trier of 

fact. The subpopulation problem was generally not seen as an impediment to the 

admission of DNA evidence, even during the height of the controversy 

surrounding it. Appropriate jury instruction has been seen as an appropriate 

solution for any tendency on the part of the jury to overweight DNA evidence. 

The newer post-Mohan jurisprudence provides judges with the discretion to 

enforce greater limits on expert evidence available to the jury, but certainly does 

not eliminate the issue of juries having to weigh conflicting scientific testimony. 

Forensic DNA has proven to be a remarkably robust technique, as evidenced 

in the NAS report. This is why, at least in part, the Canadian approach to the 

subpopulation problem was not problematic. These cases would be much more 

troubling if it had turned out to be true that DNA techniques were unreliable 

outside the populations used to validate the original techniques. If the 

subpopulation problem had turned out to be real, we would probably consider 

those cases wrongly decided. It might even be said that our DNA jurisprudence 

works only because DNA has turned out to be a superlatively good identification 

technique. 162 

It is not clear that other forensic techniques will be as robust as DNA has 

been when subject to the kind of scientific scrutiny the NAS proposes. Indeed, in 

the NAS report itself there is evidence of a great deal of distrust in several 

mainstream forensic techniques. If new approaches to forensic science begin to 

call traditional forensic techniques into question, and if the NAS report is to be 

taken seriously, as is likely, then Mohan hearings may occur over the admissibility 

of many forensic techniques that are now routinely admitted in Canadian trials. 

In this context, leaving questions of validity to the jury, as was the approach in 

Terceira, may prove problematic. Trochym provides a possible solution to this 

problem, but it does not seem to have led to significant re-evaluation of previously 

admitted scientific evidence thus far. 

162 

This does not mean that DNA is without limitations. See Erin Murphy, “The New Forensics: 

Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence” (2007) 95 

Cal L Rev 721 for a discussion of these and see Murphy, supra note 14, for a discussion of the 

dangers of not addressing them.


Following from this example, it might be suggested that DNA evidence did 

not provide a good test of the ability of Canadian courts to evaluate the 

complicated issues raised by DNA-like forms of forensic testimony. This does not 

mean that the DNA cases are without interest, however. It merely suggests that 

wariness is appropriate before assuming that, because the DNA problem is 

“solved”, the legal system is adequately prepared for the flood of complicated 

statistical evidence that a full implementation of the NAS report would generate. 

The subpopulation cases demonstrate how a scientific concern over adequate data 

became one about the legal uses of those data, and those concerns were different 

from those of scientists. Translating scientific techniques in a legal context 

changes them. Likewise, when DNA-type approaches are applied to traditional 

forensics, the results will look like neither DNA nor traditional forensics. What 

might be taken from the DNA cases is the pattern that these cases followed and at 

the kind of problems that were raised by them. In doing so, members of both the 

forensic and legal communities could be prepared for the inevitable questions 

that will be raised by this kind of testimony. 

Referring back to the four observations about the Canadian DNA cases, one 

can imagine how courts might question other forensic techniques when presented 

in a similar manner. In the case of DNA evidence, there were questions about the 

admissibility of the results of a new technique. This would not be the case if, for 

example, fingerprinting was to be questioned. It seems likely that courts will 

continue to admit conventional forensic results up and until there is a significant 

scientific controversy over the reliability of those results. Thus, as was the case 

with DNA evidence, some sort of scientific controversy will emerge before 

admissibility questions are raised in the courtroom. 

From the DNA cases, one notes that there is a period of scientific controversy 

during which courts can reach decisions that will be seen ultimately to be 

scientifically unfounded. Appropriate use of scientific actors, in the case of DNA, 

population geneticists, can be helpful in making sure that decisions taken during 

the controversy are reasonable, but the only solution is the quick resolution of the 

scientific controversy. With DNA evidence, the DNA forensic community was 

responsive to the questions raised in the courts, leading to a fairly speedy 

resolution of the subpopulation controversy. In the case of traditional forensic 

techniques, it may be possible to ensure that the scientific controversies that 

develop are resolved as quickly as possible. 

The problem that must be resolved by the forensic scientists is not theirs 

alone but rather one that will ultimately be decided by legal actors. This means 

that to the extent a dialogue develops among those working on new ways of doing 

conventional forensics, it is a dialogue that must include the law in a very 

fundamental way. If Canadian forensics is to be reshaped, then the law will have a 

big role to play in that reshaping.

A Tough Pill to Swallow: Criminal Culpability 

Arising From an Avoidable NCR State 

K E I T H L E N T O N * 

“Crimes are not to be measured by the issue of events, but by the bad intentions of men.” 

- Cicero 1 

I. 

INTRODUCTION 

T 

he Criminal Code of Canada 2 formally sets out the defence available to an 

accused who was mentally disordered at the time he or she committed a 

crime. The premise that the mentally disordered ought not to be held 

responsible for their moral and legal transgressions is not new. It has been both a 

long-standing principle of moral philosophy 3 and accepted legal doctrine since 

ancient times. 4 Formerly the “insanity defence”, the legal defence on which the 

mentally disordered may rely is now referred to as “not criminally responsible on 

account of mental disorder” (NCR). 5 

The benefit of the doubt is given to one who commits a crime while mentally 

disordered, insofar as he or she is legally presumed to have had no bad intention. 

Is this lack of bad intention necessarily true in all cases What if the person let his 

or her mental disorder worsen, despite being able to prevent it, and this 

precipitated a violent crime Might there have been “bad intention” in that case 

By neglectfully or intentionally causing his or her mental illness to deteriorate, 

does he or she thereby commit an offence known to the law If not, should such 

* 

1 

2 

3 

4 

5 

Third year student-at-law, Faculty of Law, University of Manitoba. 

John Bartlett, ed, Familiar Quotations, 13th ed (New York: Little, Brown and Company, 1955) sub 

verbo “Cicero”. 

Criminal Code, RSC 1985, c C-46 [Criminal Code]. 

Aristotle, Nicomachean Ethics Book III, translated by WD Ross (Greece: 350 BCE), online: 

Massachusetts Institute of Technology . 

Babylonian Talmud, Bava Kama, 87a. 

Criminal Code, supra note 2 at s 16. See also R v Trueman, (1992) 80 Man R (2d) 72, where the 

recently amended NCR defence (as opposed to the “insanity defence”) was first utilized in 

Manitoba.


an offence be created If so, what level of culpability should attach to him or her 

This article will address each of these questions in turn. 6 

The Manitoba case of Paul Joubert 7 illustrates a scenario where the above 

questions perhaps ought to have been addressed. Joubert’s troubles with mental 

illness began in 1999 when he sought treatment at an emergency department, 

complaining that his father had poisoned him. He was given stomach medication 

and sent on his way. Six months later his parents had him involuntarily assessed 

for psychiatric illness. Joubert’s delusions that his parents were poisoning his 

water had persisted and worsened to the point that he was making death threats 

against them. Joubert was diagnosed as suffering from chronic schizophrenia, 

paranoid type. After three weeks of medication and therapy, Joubert seemed 

willing to adhere to his medication and was discharged after agreeing to follow up 

with his physician in several weeks. The follow up did not occur, however, as 

Joubert thought it was unnecessary in light of his disagreement with his 

physician’s diagnosis. 

Nine months later Joubert was involuntarily admitted again following threats 

made against his brother. Joubert was released after promising to adhere to his 

medication and follow up with a psychiatrist. More than a year later, Joubert was 

involuntarily admitted for a third time, on petition from his parents. They were 

concerned over his increasing agitation and refusal to take his medication. Joubert 

was released less than a month later, still belligerent with respect to adhering to 

his medication. In September of 2004, Joubert beat his parents to death in their 

home. 8 He was arrested and held involuntarily in a psychiatric facility pending 

psychiatric assessment for trial. In 2005, Joubert hanged himself in his cell. 

Specific details of Joubert’s history of mental illness are not known; however, 

his repeated involuntary admissions to mental health facilities, and repeated 

warnings from his doctors and parents (who were also doctors) should have made 

it clear to Joubert that it was critically important that he remain on his 

medication, especially in light of his paranoia and the threats made against his 

family. Joubert, through psychological testing, was shown to be intelligent in spite 

of his mental illness. 9 That is, he could understand what he was being told about 

his disorder, and the problem was that, in his non-medicated state, his paranoid 

delusions seemed to take over. What is unclear is whether or not Joubert was ever 

6 

7 

8 

9 

I will note here that the intent of this paper is not to bring further stigma upon the mentally 

disordered or to accuse them of being somehow naturally criminal or dangerous. Rather, this 

paper seeks to address what is often perceived as a failing in the justice system, one which arises 

sufficiently often to be worth addressing. 

The Honorable Judge Ken Champagne, Report by Provincial Judge on Inquest Respecting the Death of 

Paul Laurent Joubert, (Winnipeg: 03 Aug 2007), accessed online at: [Champagne]. 

“Psychiatric testing for Manitoba man accused of killing parents” CBC News (17 September 

2004) online: . 

Champagne, supra note 7 at paras 25, 37, 80.

A Tough Pill to Swallow 145 

really “treated” by his medication. If his medication never actually brought him 

out of his delusional state, then his non-adherence to medication could not be 

attributed to his own doing. On the other hand, if the medication helped him 

enough to make the delusions subside, then the question arises as to whether he 

ought to have been held responsible for failing to take his medication where such 

a failure contributed to the deaths of his parents. 

It must be remembered that Joubert, despite his mental illness, functioned 

outside of the mental health system. He managed to hold down a job and care for 

himself, albeit with several lapses. 10 As such, it is more than arguable that Joubert, 

as an independent and reasonably self-sufficient member of the community, 

should be held responsible for his actions on a day-to-day basis, at least during his 

more stable periods. If he acted negligently in those stable periods (assuming they 

existed), then it is legitimate to inquire as to his criminal culpability. As Joubert 

committed suicide, it is moot in the practical sense to discuss what kind of 

culpability, if any, should be attributed to him for his failure to adhere to his 

medication schedule. Nevertheless, the scenario is one where the argument of this 

paper could apply. 

As a point of contrast to Joubert there is the Vince Li case. 11 This case is 

arguably the most widely publicized and infamous Manitoba case in recent 

memory which involved the NCR defence; however, as there was no evidence that 

Li was aware of the danger that he might pose in a psychotic state or that he might 

be psychotic at all, he cannot properly be said to have exacerbated his own mental 

disorder. Unlike Joubert, Li was on no treatment regimen and so he cannot be 

said to have knowingly contributed in any way to his own deterioration by failing 

to adhere to one. As a matter of distinction, then, it must be clearly stated that Li 

or someone in similar circumstances would not be subject to the argument set out 

in this article. This distinction will be further discussed later. 

In spite of this, many of the facts in the Li case serve as a useful hypothetical 

scenario. In the spring of 2009, both the Manitoba Court of Queen’s Bench and 

the province’s own “court of public opinion” considered and debated the NCR 

defence in the context of the Vince Li case. The case was widely publicized due to 

the extreme nature of the killing perpetrated by Li. Li and his victim were 

unknown to each other and shared adjacent seats on a Greyhound bus bound for 

Winnipeg. Li suffered from undiagnosed schizophrenia at the time, and in the 

midst of a delusion, he attacked the sleeping victim with a knife, killing and 

ultimately dismembering him and consuming part of the body. Legally speaking, 

10 

11 


Mike McIntyre, “Vincent Li found not criminally responsible for murder”, Winnipeg Free Press (03 

May 2009), online: .


it is uncontroversial that Li was suffering from a “disease of the mind” 12 that 

qualified him for the NCR defence. As heinous as the killing was, the NCR 

defence was properly applied. 

The issue at hand, which might be termed as “the descent into an avoidable 

mentally disordered state”, or a “failure to abate one’s mental illness” is, of course, 

not at all unique to or especially prolific in Manitoba; nevertheless, the examples 

of Li and Joubert are useful to keep in mind when discussing the issue and 

possible legal consequences of avoidable mentally disordered state. What if Li had 

been diagnosed with schizophrenia and had been medicated What if the 

medication worked, but for one reason or another he had discontinued it, his 

mental illness deteriorated, and then he got on the Greyhound bus It is certainly 

not hard to imagine that events might have unfolded in this manner. Such issues 

also are raised when his release is discussed – even if Li is appropriately 

medicated, would he continue to take his medication and what should happen if 

he does not and more violence results What if Joubert had made it to trial 

The substance of this paper is divided into six sections. The first discusses the 

set-up of the “recklessly-induced mental disorder” scenario in order to provide 

framework for an analysis. The second considers the philosophical motivation for 

punishing in such situations. The third is a brief survey of the history of the NCR 

defence to give context to the discussion. The fourth section is a detailed 

explanation of the NCR defence itself, which is necessary for a proper discussion 

of if and how a recklessly induced violent episode might lead to criminal 

culpability in the event that the disorder precipitates a serious crime. The fifth 

section proposes that recklessly exacerbating one’s own mental disorder with the 

resulting injury or death of another should be considered criminal negligence. 

The sixth section of the paper very briefly discusses the possible forms of 

punishment which should accompany the proposed offence. The last section 

forms a brief conclusion. 

It must be noted that the purpose of this paper is not to suggest a practical 

concrete form of sanction, but rather to argue that some sanction is warranted in 

the first place. The issue of precise legal punishment carries with it many intricate 

considerations which are not discussed in this paper – the proposed solutions 

presented in this paper are largely philosophical in nature, as opposed to practical 

logistical solutions. 

12 

“Disease of the mind” is defined in s 2 of the Code. This will be discussed at length in Section V 

of this paper.


II. 

WHAT IS AN “AVOIDABLE MENTALLY DISORDERED STATE” 13 

It is trite criminal law that a guilty mind must parallel a guilty action to create 

a criminal offence, and one’s mental state is certainly considered when 

determining to what extent one should be held responsible for one’s actions. 14 

The question this paper will address is whether one who recklessly induces or 

exacerbates his own mental disorder by failing to take action to control it, if he is 

not disordered (as defined by the NCR defence) when he fails to act, can or 

should be held legally responsible for his actions where it subsequently leads to 

the commission of a serious crime. 

This paper does not discuss the possible culpability of wilfully self-induced 

automatism. The courts have made it clear that purposeful or reckless use of drugs 

or alcohol creating a disturbed mental state does not constitute a “disease of the 

mind” as is requisite for the NCR defence, unless there is evidence of a preexisting 

malfunctioning of the mental processes. 15 Importantly, this excludes 

several common scenarios of self-induced mental aberration from being 

considered in an NCR defence, such as extreme intoxication or paranoid delusion 

caused by recreational drug use. As it is clear that the NCR defence would not be 

available to an accused in those situations, it is moot to discuss whether there 

should be culpability with respect to their decision to become intoxicated in the 

first place. 

The term “avoidable mentally disordered state” has a specific meaning here. 

It is, of course, incorrect to suggest that mental disorders can be willingly created 

or conjured from within oneself where one had no mental disorder before. 

Likewise, I do not mean to imply that having a mental disorder is something that 

can be avoided altogether. The phrase as I use it is meant to denote a situation in 

which a person who already has a mental disorder fails to take steps to abate it or 

actually acts to exacerbate it, thus the “avoidable” aspect of the term connotes acts 

or omissions involved in failing to abate the disordered symptoms of the 

condition where abatement of such symptoms was possible. Specifically, for the 

balance of this paper, when I speak of “avoidable mentally disordered state”, I am 

referring to a situation involving all of the following conditions: 

i) The person is afflicted with a mental disorder, the likes of which 

would constitute a “disease of the mind”, as defined by the Code. 

The person would therefore potentially qualify for the NCR 

13 

14 

15 

From this point on in the paper, the male pronoun is used when referring to hypothetical 

offenders. The author intends no offense by this choice, but has chosen it for the sake of 

simplicity. 

Irving Thalberg, “Hart on Strict Liability and Excusing Conditions” (1971) 81:2 Ethics: An 

International Journal of Social, Political, and Legal Philosophy 150. 

See DPP v Beard [1920] AC 479 (UK HL); R v Godfrey, [1984] 3 WWR 193, 8 DLR (4th) 122 at 

para 31 (Man CA).


defence, as set out in the Code, if he was to commit a crime in that 

condition. 

ii) The person afflicted is aware of his condition and has been 

successfully medicated such that adhering to the medication 

schedule as prescribed will put him into a “stable phase”. 16 The 

stable phase renders him lucid and competent so as to negate the 

relevant effects of the disease of the mind and able to appreciate the 

nature and quality of his acts and know when they are wrong. He 

would, therefore, not have the NCR defence available to him if he 

were to commit a crime at this stage. This point is critical because if 

the person, despite proper adherence to medication, was still left 

with significant aspects of the “diseased mind” such that he never 

ceased to be NCR, then any exacerbation of his condition can still 

be attributed to the condition itself, and thus all of his actions 

would remain under the protection of the NCR defence. 

iii) While the person is lucid and competent in his stable state, he fails 

to take his medication, which he knows, either from experience or 

from being told by a health care professional, is likely to result in a 

worsening of his mental condition. Specifically, he must know that 

he may lose the ability to tell right from wrong, that he may suffer 

from serious hallucinations, lose touch with reality, etc. 

iv) Subsequently, as a result of discontinuing the medication, he 

returns to a disordered state such that he again has a disease of the 

mind and would again potentially qualify for the NCR defence. 

v) The person commits a crime at this stage while he has a disease of 

the mind and cannot appreciate the nature or quality of the act nor 

does he know the act is wrong. 

It would be useful at this stage to outline the standard treatment process 

which a mentally disordered person might face. This information pertains 

specifically to people with schizophrenia, as this paper deals primarily with cases 

concerning that mental disorder. Other mental disorders with similar 

symptomologies and treatment structures would fall under the proposal of this 

paper as well. 

First, there is the “acute phase”, wherein psychotic symptoms begin to 

manifest themselves. Patients may seek treatment at this point and emphasis is 

16 

Pharmacotherapy, “Clinical Practice Guidelines for Treatment of Schizophrenia” (2005) 50:S1 

Can J Psychiatry, 19S at 20S. Schizophrenia is broken down into three stages: acute, stabilizing, 

and stable. At the stable phase, the person is as stable as their medication can make them. 

Although the term applies to schizophrenia somewhat uniquely, for convenience, I will use the 

term “stable phase” to denote all analogous periods in other mental disorders, wherein the 

person is similarly and effectively medicated so as to leave them legally competent.


placed on evaluating them in terms of the level of danger which they pose. 17 The 

next stage is the stabilization phase, in which the person is medicated to reduce 

their positive psychotic symptoms. Adherence to medication is critical at this 

stage. 18 Finally, there is the stable phase, which is the focus of this paper. Relapse 

prevention is an important goal during this phase. 19 

Individual response to medication is highly variable, but the use of 

antipsychotic medications is an essential part of a treatment plan. 20 While 

undergoing treatment, patients are typically provided with information 

concerning the nature of their disorder, as well as the risks and benefits of 

treatment so that they may play an informed and participatory role in their 

treatment. 21 This means that the theoretical patient I refer to in this paper can 

reasonably be assumed to have been informed of the dangerous consequences 

which would accompany failing to adhere to his medication. If a patient had not 

been so informed and remained ignorant of the gravity of his mental illness and 

the importance of medication, he obviously should not be faulted if he fails to 

adhere to it. 

While the patient still has the right to determine his own course of 

treatment or refuse it altogether, 22 this right is not absolute. In cases where the 

patient is not competent to make decisions the decision may be made for him. A 

determination of incompetence would involve consideration of whether he is 

mentally impaired to the extent that he does not understand the nature of his 

condition or the consequences of obtaining or not obtaining treatment. 23 For the 

purposes of this paper, I assume that the person in question is competent to make 

treatment choices. 

Nevertheless, just because the patient has the right to choose to abstain from 

medication, does not mean that he should be able to do so with impunity. To the 

extent that exercising a right entails a foreseeable risk of harm to others, I think it 

is plain that a person ought to be held accountable for exercising that right. 

As the issue of culpability in an avoidable mentally disordered state is 

analyzed, it may be helpful to keep in mind a specific scenario. Imagine a person 

who has schizophrenia, paranoid type, or a person with a condition similar to that 

of Li or Joubert. As with Joubert (but unlike Li), this person has been diagnosed 

by his doctor who has prescribed an anti-psychotic medication to be taken 

regularly. The medication is effective and alleviates most symptoms of the 

disorder, leaving him in a mentally stable phase. The medication produces some 

17 

18 

19 

20 

21 

22 

23 

Ibid at 20S. 

Ibid. 

Ibid at 22S. 

Ibid at 19S. 

Ibid. 

See The Mental Health Act , CCSM c M110 s 26. 

Ibid at s 27(2).


deleterious side effects, including flattened affect (a strong dulling of emotions) 

and lethargy; but none of these seriously impact his ability to understand the 

consequences of his actions or understand the difference between right and 

wrong. As unpleasant as his treatment situation is, his judgment is not impaired. 

The doctor informs the person that his mental stability will only persist so long as 

he keeps taking his medication, and that failing to take the medication will result 

in a loss of stability, possibly leading to a dangerous psychotic episode. In spite of 

this warning, the patient decides one day to stop taking the medication because 

he has (understandably) grown tired of the side effects. 24 Subsequently, he does 

indeed lose control, has a psychotic breakdown during which his mental state is 

so disturbed that he does not understand or appreciate the nature or quality of his 

actions, and due to his delusions he kills his wife. 

My question is: assuming that the NCR defence is available to this person 

with respect to his actions and mental states at the time he killed his wife, is there 

any criminal culpability that can or ought to attach to him with respect to his 

omitting to take his medication during his stable phase, which was ultimately the 

cause of the killing in the first place 

The situation above may sound like a contrived scenario, but events such as 

these do transpire. In R v Weldon, 25 the accused was diagnosed with schizophrenia 

and was constantly going on and off of his medication in spite of his doctor’s 

repeated warnings that his mental state would deteriorate and that he would need 

hospitalization if he continued to do so. The accused ultimately stopped taking 

his medication and killed his wife in front of their child. On appeal, the Court 

held that the accused ought to have been afforded the NCR defence, and he was 

acquitted of the murder on those grounds. Should that have been the end of the 

inquiry 

Before proceeding to discuss the substantive matters behind my answer to 

this issue, I must acknowledge two important points before proceeding. Firstly, it 

must be noted that mental disorders are a variable phenomenon and not everyone 

24 

25 

It is not uncommon for people with serious mental disorders to discontinue use of their 

medication. In a Korean study, some 71% of schizophrenics discontinued use of their 

medication for various reasons. See Seung-Ho Jung et al, “Factors Affecting Treatment 

Discontinuation and Treatment Outcome in Patients with Schizophrenia in Korea: 10-year 

Followup Study”, Psychiatry Investigation 8:1, online: . As well, a Maryland study found 90.4% discontinued their medication 

at some point in the course of treatment. See C Daniel Mullins et al, “Risk of discontinuation of 

atypical antipsychotic agents in the treatment of schizophrenia”, (2008) 98:1-3 Schizophrenia 

Research 8, online: . 

I note that although this paper proposes sanction for reckless discontinuance of medication, it 

does so with a specific focus. Clearly it would not be tenable to punish discontinuation of the 

medication if it is the case that 90% of the relevant population does indeed discontinue it. 

Instead, the focus of this paper is directed at those who are prone to violence or who can 

otherwise foresee danger to others if they should discontinue their medication. 

[1995] 86 OAC 362, 29 WCB (2d) 52.


responds to medication the same way. 26 Grave psychological instability can persist 

even where a patient diligently follows his treatment regimen. 27 Obviously, in such 

cases where treatment is not effective there would be no reason to suggest that 

culpability of any kind be placed upon the patient because presumably he was 

never truly outside of the NCR threshold and therefore could not appreciate the 

consequences of failing to adhere to his medication. If, for instance, the person 

eventually discontinues his medication due to compulsion from his own 

hallucinations, then the medication may have never actually brought him outside 

of the NCR threshold; and he could attempt to avail himself of the defence, both 

with respect to the main offence and with respect to the discontinuation that lead 

to that main offence. 

Secondly, I want to emphasize that the discussion of culpability for failing to 

abate one’s own mental disorder is centered on the person’s mental state and 

conduct while he was in the stable phase of his condition. Throughout history 

and to this day, serious stigmas have attached to mental illness, including notions 

that mentally ill people are violent threats to society or that they are morally and 

psychologically weak and somehow responsible for their condition. 28 The purpose 

of this paper is not to promote this misconception by suggesting an exception to 

the NCR defence which would allow the punishment of those mentally 

disordered individuals who neglect to take their medication; rather, the issue is 

whether culpability should flow based on what the person did while he was not 

suffering the debilitating effects of a disease of the mind, that is – when his 

judgment was not impaired during his lucid, legally competent, stable phase. 

III. 

THE PHILOSOPHY BEHIND THE PROPOSAL 

A. Motivation 

One might think that the issue of recklessly induced or exacerbated mentally 

disordered state is academic and does not arise in practice. In fact, the issue does 

arise, but it is difficult to pursue case law on the matter because medication 

adherence is generally a factor considered in the disposition of the accused, and is 

irrelevant to the application of an NCR defence. As such, mention may be made 

of the offender’s struggles with medication adherence in the context of 

discussions over whether he poses a danger to the public and whether or not to 

hold him in a psychiatric institution; but there is little reason for the court to 

discuss the issue in terms of criminal culpability outside administration of the 

NCR defence. 

26 

27 

28 

Pharmacotherapy, supra note 16 at 23S. 

Ibid. 

Mark Dombeck, Essays and Blogs Concerning Mental and Emotional Health, Online: 

MentalHelp.Net .


On the other hand, the issue is often debated in the public sphere and the 

perception that mentally ill offenders “get off easy” can run rampant. Some might 

worry that Li or other institutionalized individuals will one day be released and 

recede into unstable and dangerous habits. Whether the individuals end up doing 

so or not, it is important for both legally pragmatic reasons and those of public 

perception 29 that a process be in place to deal appropriately with avoidable 

mentally disordered states. If, for example, Li were to be released, having been 

declared stable and successfully medicated, but then went off of his medication 

and committed another violent offence, there should be a legal mechanism for 

responding to this development, in addition to simply re-committing him to the 

institution. 

I think it is intuitive to seek punishment for someone with a mental illness 

when he commits a crime during his stable phase; that is, when he understood the 

consequences of his actions and that they were wrong. Surely we would all agree 

to the sanctioning of a person with a mental disorder who, while competent and 

lucid, set a dangerous trap which subsequently killed someone. At no point would 

this person be able to plead the NCR defence, as he was competent at all times. 

Would it make a difference to our intuitions if, after laying the trap and walking 

away, the person had a mental breakdown which would, from that point on, 

qualify him for the NCR defence Presumably not, as the actus reus (setting the 

trap) accompanied an unblemished mens rea before the break down, leaving the 

offender as culpable as anyone else would have been at the time. That is to say, we 

would agree to punishing the conduct which existed before the activation of the 

NCR defence. 

The next question is: would it make a difference to our intuitions on 

punishing the trap-setter if, instead of laying a trap while lucid and competent, the 

person decided to go off of his medication, also while lucid and competent This 

person knew that he might be prone to violent episodes without his medication 

when he decided to do this, yet did so anyway. Two weeks later, in the midst of a 

psychotic episode, he killed someone. Clearly he should not be held to be 

culpable for the killing in itself, as the NCR defence would presumably apply, but 

what about his culpability for recklessly or intentionally setting into motion his 

own destabilization, which ultimately caused the killing Assuming that 

29 

The law does not bow to public opinion but the perceived integrity of the legal system is 

sometimes considered. For example, when a Charter right of an accused has been breached and, 

as a result, evidence against the accused was obtained, the trier of fact must determine whether 

or not to exclude the evidence under s 24(2) of the Charter. In doing so, consideration must be 

given to, among other things, the public’s confidence in the legal system and how it would be 

affected by excluding the evidence or not. 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 s 24 [Charter]. 

See R v Grant 2009 SCC 32, [2009] 2 SCR 353 for an explication of the test undertaken when 

determining whether or not to exclude evidence.


foreseeability of the consequences can be established in both cases, what morally 

relevant difference is there between laying a trap which kills someone two weeks 

later, and destabilizing himself so that he loses control and personally kills 

someone two weeks later If we punish in one circumstance, should we not 

punish in the other, assuming that the foreseeability of harm is present in both 

situations 

It may be argued that the medicated person with a mental disorder is 

vulnerable, even in his stable phase, due to various side effects from medications 

or lingering psychological problems associated with his disorder. Due to this 

vulnerability, it might further be suggested that the person be held to a lower 

standard of care vis-a-vis his medication adherence. This argument should not be 

convincing. While the difficulties and vulnerabilities facing the person in 

adhering to his medication may have a place as a sentencing consideration, 30 there 

is a strong philosophical reason why being in this vulnerable state should not 

excuse the person from responsibility for the consequences of voluntarily failing 

to adhere to his medication schedule. 

The criteria for use of the NCR defence set a certain threshold to meet before 

one can make use of the defence. 31 This will be discussed at length in Part V, but 

the essential elements of the NCR defence are that, at the time of the commission 

of the offence, the accused suffered from a disease of the mind such that he either 

did not appreciate the nature or quality of his actions or he did not know that 

what he was doing was wrong. 

As per my assumptions above, a person in the stable phase of treatment 

would not meet this threshold. To excuse this person from any illegal or reckless 

conduct at this stage on the grounds that he is mentally disturbed would serve to 

dilute the NCR defence. Further, it will increase the public perception that having 

psychological difficulties falling far short of legal or medical “insanity” will 

nonetheless serve to exonerate the mentally disordered, and this perception would 

be damaging to the integrity of the legal system. 

By analogy, we might be sympathetic for a person suffering from pyromania 

or kleptomania who, as a result of his mental disorder, is prone to setting fires or 

shoplifting; however, such mental disorders (falling short of the NCR threshold) 

should function at most as sentencing considerations and not as complete 

defences to arson and theft, as the mens rea for the offence (of setting the fire or 

stealing) is still present. Such an individual might instead receive a lenient 

sentence on the grounds that he was less culpable even though they “knew what 

[they were] doing … and knew it was wrong” 32 or that the pre-dispositional nature 

of the mental disorder lessens the need for tough deterrent measures. 33 Likewise, 

30 

31 

32 

33 

R v L (JHQ) (1995) 61 BCAC 150 at paras 9-10. 

Criminal Code, supra note 2 at s 16. 

R v Medwid [1990] 89 Sask R 158 at para 6 (CA). 

Ibid at para 8.


it makes sense to consider leniency of sentence, but not an absence of sentence or 

recognition of wrong-doing altogether, when it comes to non- adherence of 

mentally disordered individuals who do not meet the NCR threshold. In both 

cases, individuals are compelled but not controlled by their mental illness; thus 

they have the ability to form the mens rea of a crime. As long as they can do this, 

any other mental stressors or compulsions should, at most, function to reduce the 

culpability of the crime in question, but not deny that it took place at all. To hold 

otherwise would be to usurp the very meaning of “mens rea”. 

In addition, it would be doing a long term disservice to mentally ill people 

generally if we fail to hold them accountable for their conduct in their stable 

phase. As noted above, they face a great stigma 34 which would only be worsened if 

they were perceived to be so psychologically weak, even in their stable phase, that 

they need special consideration before being held accountable. It would be as if to 

say “I am stable, reliable, and I know the difference between right and wrong, but 

if I commit any crimes then it is not my fault and it can be blamed entirely on my 

disorder.” This contradiction can only breed misconception and worsen the 

stigma which the mentally disordered person already faces. 

Although taking this view may be seen as a failure to recognize the 

vulnerability of the medicated person, I see it as quite the contrary. It is 

recognition of the fact that people on medication for their mental illness are not 

habitually unreliable or weak-minded and should therefore be held roughly as 

accountable just as anyone else would be, while they are in their stable state. 

While it is the state’s prerogative to create criminal offences, a reasoned 

philosophical justification for a new law, in addition to its pragmatic functions, 

adds moral legitimacy to it; therefore, something should be said about the moral 

justification for creating an offence which would punish those who recklessly 

exacerbate their own mental disorder. 

B. Punishment Theories: A Way to Justify Punishing 

While there is incredible complexity and argument in the sphere of moral 

philosophy regarding punishment, two of the most significant schools of thought 

are the utilitarian theories and the retributivist theories. Both theories raise 

convincing points and may suggest certain plausible policies, but both also lead to 

absurd conclusions when taken to their logical extremes, perhaps suggesting that 

another theory should be considered. 35 

Utilitarian theories require and/or condone punishment only where it serves 

the social good. 36 This would include punishments which have deterrent or 

34 

35 

36 

Dombeck, supra note 28. 

Michael David, “Punishment Theory’s Golden Half Century: A Survey of Developments from 

(about) 1957 to 2007” (2009) 13: 1 J Ethics 73. 

Ibid at 78.


remedial effects by either preventing future crime or by making society a “safer 

place”, for instance, by incarcerating offenders and keeping them off the streets in 

the short term while they are rehabilitated for (hopefully) the long term 

betterment of society. The problem with this theory is that it produces 

counterintuitive results in two possible scenarios. First, in cases where no social 

good would be served by punishment, the theory would disallow any punishment 

as it would, on balance, be more harmful than helpful. Imprisoning someone, 

thus lessening the amount of “good” (freedom, happiness, etc.) in the world, 

when it produces no “good” in return, would be wrong on this view. 

Problematically, this means that where there is no deterrent, remedial, or public 

safety effect, punishment cannot be justified and offenders get off “scot free”. 

Some might argue that prison time is never a “good” because it hardens criminals 

at the worst and makes them difficult to reintegrate into society at best. If indeed 

this is true, then prison might very well be abolished altogether, on the utilitarian 

account, except perhaps in the second and even more counterintuitive set of 

circumstances, namely that the theory would condone punishing random 

innocent people if doing so would enhance the overall social good. That is, if it 

would be better to make an example out of an innocent person than to let the law 

appear to have been flouted or avoided by the true culprit who got away, then we 

should punish the innocent person. 

Beyond the philosophical absurdities, there are practical reasons why a purely 

utilitarian justification for punishing NCR persons would not be tenable. There 

are many provisions in the Code relating to treating and rehabilitating NCR 

persons as a condition for their release back into society. 37 Therefore, since there 

are already safeguards in place to ensure public safety by denying the mentally ill’s 

re-entry into society until they are better, there is arguably no social good to be 

obtained by further punishing the mentally ill person for their reckless actions 

which precipitated their mental instability. It is possible that there may be some 

deterrent effects to be had, insofar as non-adherence to medication would be 

recognized as potentially inculpatory, and this deterrence would function as a 

social good justifying punishment on the utilitarian account; however, I think it is 

clear that the primary motivation in punishing reckless omissions of medication 

adherence is in reality largely based on the desire to punish a perceived moral 

wrong – that is, retributive justice and social denunciation. 

Retributivist theories of punishment presuppose a unified moral theory 

(which may vary by society) and condones punishment where the moral theory is 

violated. 38 Such theories may be as fundamental and simple as the imperative of 

adhering to the state-made laws of the land or may involve higher-order ethical 

37 

38 

Criminal Code, supra note 2 at s 672.54. 

Thom Brooks, “Kantian Punishment and Retributivism: A Reply to Clark” (2005) 18:2 Ratio 

237 at 241.


principles, such as the imperative of doing no harm to others. 39 The key to this 

theory is that justice is seen to be done when the wrong-doer is punished for 

flouting the moral theory, whatever it may be. There is no concern over 

deterrence or remedial effect. Unfortunately, this is precisely the problem for the 

retributivist theory, as it would seem to condone pointless punishments where no 

good is served (no deterrence or remedial effect) merely because a law was broken 

or because someone else was wronged by the actions of the offender. This has the 

potential of leading to harsh consequences in some instances. 

One particularly salient retributivist theory might be dubbed the “Removal of 

Unfair Advantage Theory.” 40 On this theory, to achieve justice we must balance 

burden with advantage. Punishment is a means with which to achieve justice by 

balancing out ill-gotten advantages with burden – the burden being the 

punishment itself. The law imposes burdens on us that we engage or refrain from 

engaging in certain conduct, and failing to undertake these burdens constitutes an 

ill-gotten advantage, the likes of which needs to be “balanced” with the burden of 

punishment. 41 There is room for the application of this theory to reckless 

deviation from a mentally ill person’s medication schedule. To the extent that the 

lack of self-restraint (or in the case of mental illness, a lack of taking medication to 

restrain one’s self) is an advantage, this theory would seem to recommend 

punishment as a balance. But does this theory go too far On the face of it, the 

theory would seem to allow a person who discontinues his medication to be 

punished, even if he does not hurt anyone, simply because he took an advantage 

in a reckless manner. To punish always in this case would be to go too far. 

In any event, if, as I will propose, criminal negligence is the best way to frame 

the situation of recklessly exacerbated mental disorder, then the negligence would 

have to have caused either serious harm or death. One cannot be charged with 

“criminal negligence causing nothing”, if he recklessly went off of his medication 

and nothing happened. It is the wilful risk-taking combined with the outcome 

(injury or death) which merits the punishment, just as with other charges of 

criminal negligence. 42 

Given the problems present in the utilitarian and retributivist theories, it 

seems desirable to base a justification for punishment of those who recklessly 

exacerbate or fail to abate their own mental disorder upon some sort of combined 

theory. Michael David summarized the relatively more recent “fairness theory” of 

punishment, noting that 

…legal punishment (and close analogues) are justified (that is, morally permissible, 

positively good, or both) insofar as it supports the (relatively just) distribution of benefits 

39 

40 

41 

42 

David, supra note 35 at 79. 

RA Duff, “Penal Communications: Recent Work in the Philosophy of Punishment “ (1996) 20 

Crime & Just 1 at 26. 

Ibid. 

See discussion in Section V below.


and burdens that a relatively just legal system (or similar practice) creates. A relatively just 

legal system is a cooperative practice from which each benefits if others generally do their 

part and in which doing one’s part is sometimes burdensome…. Punishment, when 

justified, is justified as corrective justice, that is, as part of maintaining a just legal order. 

Maintaining a just legal order is good in itself and – all else equal – morally permissible. 43 

This theory, though perhaps imperfect for various reasons not relevant to this 

discussion, 44 offers an adequate moral justification of the punishment of recklessly 

exacerbated mental disorder, and appears to consider aspects of both utilitarian 

and retributivist theories. At first blush, one might think it unfair to hold people 

with mental disorders accountable for failing to take their medications because 

even while medicated many will still be encumbered and disturbed by side effects 

or lingering aspects of the disorder. The fairness theory of punishment adequately 

answers this worry. It recognizes the burden which those with mental disorders 

must face, including the stigma and the side effects from medication which they 

must take; however, it simultaneously recognizes the burden which society must 

shoulder. Although perhaps not the best word, this social “burden” is constituted 

by the safety concerns which the public would face if those with serious mental 

instabilities were not medicated. While the balancing of burdens here sounds 

highly similar to the “Removal of Unfair Advantage” retributivist theory, this 

theory may be more desirable insofar as it justifies but does not demand 

punishment in all cases where a mentally ill person goes off of his medication. It is 

therefore open to argue that the burden imposed upon the person with paranoid 

schizophrenia to diligently take his medication is a legitimate one which is 

justified by the possible dangers he would present to society if he went without 

medication. As noted, this theory stops short of demanding sanction in all cases, 

especially where no actual harm is done. 

The fairness theory of punishment does an adequate job justifying the 

punishment of those who recklessly exacerbate their own mental illness, but 

regardless, one can readily imagine a justification based on a combination of 

retributivist and utilitarian reasoning, including both deterrence and the 

punishment of immoral conduct. I will proceed from here on the assumption that 

the introduction of such a punishment is philosophically justifiable. 

In addition to moral philosophical justifications of punishment, at a more 

concrete and legalistic level, the Code itself offers assistance in justifying 

punishment for recklessly discontinuing an anti-psychotic regimen where it causes 

death or serious injury. The Code sets out the broad purposes of punishing 

offenders, 45 which include denunciation of unlawful conduct, deterrence, 

separation from society, rehabilitation, reparations, and the promotion of a sense 

of responsibility in the offender. While all of those goals are arguably served at 

43 

44 

45 

Supra note 35 at 94 


Criminal Code, supra note 2 at s 718.


least to some extent by punishing reckless exacerbation of mental disorder, it 

seems clear that the aspects of denunciation and the acknowledgment of 

responsibility would be the substantial motivation behind the punishment. 

Between the possible justification found in utilitarian, retributivist, and 

fairness theories of punishment, as well as the provisions found in the Code, it 

seems clear that punishing reckless exacerbation of mental disorder can, in 

principle, be justified. 

IV. A HISTORY OF THE NCR DEFENCE IN SEVERAL OF ITS 

ITERATIONS 

A glimpse at the common law history of treatment of mentally disordered 

people shows a pattern of disdain and comparison to children and animals. 

Despite the base nature of such comparisons, it is clear that in some cases it would 

be as senseless to hold a mentally disordered person morally blameworthy for 

their crime as it would be to hold an animal or child blameworthy of the same 

offence. From its early conceptions as a disqualification of ability to transact or 

control one’s self, to its more modern function of denying mens rea, the law on 

crime and mental incapacity has had a colourful history. It is clear today that the 

wording of section 16 of the Code establishes the NCR defence as an “excuse-type” 

defence which denies the requisite mens rea of the offence, thus precluding a 

finding of guilt; however, a brief historical analysis of what we now know as the 

NCR defence is warranted in order to give context to the proposed sanctioning of 

conduct which both precedes and precipitates the NCR defence itself. 

A. Medieval Times 

Hints of a requirement of a mental element in a criminal offence have 

persisted though out ancient legal history; 46 however, one of the earliest and most 

significant movements in English jurisprudence toward a more uniform 

recognition of the requirement of both a mens rea and an actus reus to constitute a 

crime came in the 13 th century. Henry de Bracton, an eminent jurist of the time, 

46 

For instance, in ancient Rome, the law held that the insane were legally incompetent and 

therefore were designated as wards of their guardians or curators. See Adolf Berger, Encyclopedic 

Dictionary of Roman Law (Philadelphia: American Philosophical Society, 1953) at 420. In ancient 

Hebrew law, deaf-mutes, minors, slaves, married women, and “idiots” (the mentally disordered) 

were considered “awkward” to deal with, and therefore if they were to injure others then they 

were to be exempt from the punishment which would normally follow such a crime. Babylonian 

Talmud, Bava Kama, 87a. This has consistently been interpreted to mean that someone who is 

non compos mentis (not of sound mind) is not legally competent – see Rabbi Simcha Roth, 

“Mishnah study in the religious climate of Masorti (Conservative) Judaism” Beit Midrash Virtual 

of the Rabbinical Assembly in Israel (4 November 2010), online: 

.


was most responsible for this as he held that “[w]e must consider with what mind 

… a thing is done … in order that it may be determined accordingly what action 

should follow and what punishment. … [Y]our state of mind gives meaning to 

your act, and a crime is not committed unless an intent to injure … 

intervene[s].” 47 De Bracton did not originate the idea of mens rea, however much 

his act of composing and amalgamating decades of disparate common law on the 

subject and placing an emphasis on the requirement for mens rea did serve to 

solidify it. 48 As the presence of mens rea became a necessity for criminal offences, 

the mentally disordered were necessarily disqualified from committing such 

offences in virtue of their lack of an operating mind, and thus the incapacity of 

the mentally disordered was codified as part of the common law. 

B. The 17 th Century and Coke’s Institutes 

In 17 th century England, there were several distinct classes of legal incapacity 

which would render a mentally disordered person immune from prosecution for 

his acts. Edward Coke had penned the Institutes of the Laws of England, 49 a series of 

legally instructive books based on actual cases. Simply dubbed “The Reports”, it 

was subsequently regarded as a corner stone in the development of the modern 

common law, and in that respect, has been regarded as “perhaps the single most 

influential series of named reports.” 50 Coke surveyed case law and synthesized 

four classes of non compos mentis, the state of being not of sound mind, which may 

be paraphrased thusly: 51 

i) A person who has been perpetually mentally infirm from birth. 

ii) A person who, due to illness, grief, or accident, loses memory and 

understanding. 

iii) A person who has periods of understanding and competence and 

periods without understanding and competence, where such person 

is only non compos mentis during the periods where he loses 

understanding and competence. 

iv) 

A person who by his own act deprives himself of his memory and 

understanding, similarly to the situation of intoxicating one’s self. 

This kind of non compos mentis shall not give the person a privilege. 

47 

48 

49 

50 

51 

Henry de Bracton, De Legibus Consuetudinibus Angliae, reprinted in FB Sayre, “Mens Rea” (1932) 

45 Harv L Rev 974 at 985. 

Jacques M Quen, “Anglo-American Concepts of Criminal Responsibility: A Brief History” in SJ 

Hucker et al, eds, Mental Disorder and Criminal Responsibility (Toronto: Butterworth & Co 

(Canada) Ltd, 1981) at 1. 

A vast number of versions of Coke exist, far too many to cite here. Quen used Edward Coke, 

Institutes of the Laws of England, vol 3 (Philadelphia: Robert H Small, 1853). 

J H Baker, An Introduction to English Legal History, 4th ed (London: Butterworths, 2002), at 183. 

Quen, supra note 48 at 2.


The last two classes are of particular interest for the purposes of this paper. 

The third class appears to refer to, among other things, people with treatable 

mental disorders or otherwise those with intermittent positive psychotic 

symptoms. The fourth class refers to self-induced intoxication but could arguably 

be interpreted as failure to adhere to one’s medication schedule for treating their 

mental disorder. Though the passage emphasizes “by his own act”, there is no 

principled reason to exclude omissions. The combined effect of the third and 

fourth classes seems to suggest, quite intuitively, that if a person commits an act 

(or an omission) while he is of sound mind which has the effect of depriving him 

of said soundness of mind, then the act (or omission) leading to the deprivation 

“shall not be given privilege”. The precise meaning of “privilege” is not critical, as 

the passage suggests, in a general sense, that this particular brand of “unsoundness 

of mind”, that being self-induced, would not be a legitimate defence for the 

accused. Despite the fact that the use of medication and pharmacotherapy was 

likely not anticipated by Coke in his writings, it is a coherent interpretation of the 

classes of non compos mentis that they would not offer protection to the omission of 

taking one’s medication. 

In 1724, Arnold’s Case 52 set a very high bar for reliance on the insanity 

defence, seemingly requiring a complete lack of reasoning capacity. Arnold was 

under the delusional belief that the person he had shot at, Lord Onslow, was 

responsible for the problems of the country and that he caused monsters to 

appear in his bedroom. The Court held that in order to make use of the insanity 

defence, the accused must “[be] totally deprived of his understanding and 

memory, and doth not know what he is doing no more than an infant, than a 

brute, or wild beast. Such a one is never the object of punishment.” 53 

C. England in the 19th Century 

Up until this point in history, the standards of insanity were high if one 

sought to rely on the insanity defence, as Arnold’s Case decreed that to be 

acquitted one’s insanity must be fairly all-encompassing, and transient delusions 

would seem not to suffice. 

A substantial change to the understanding of the insanity defence came in 

1800, after the trial of James Hadfield 54 , which marked the first significant 

expansion of the defence. Hadfield had suffered brain damage in the Franco- 

British wars of the 1790s, which left him delusional. Hadfield sought to commit 

suicide because he thought it would save the world, but recognizing suicide as a 

sin, he tried to engineer his death as a penalty for attempting regicide. His attempt 

on the King’s life failed and at trial his lawyer, Thomas Erskine, successfully 

52 

53 

54 

Arnold’s Case (1724), 16 State Tr 695. 

Ibid at p 765, as cited in Quen, supra note 48 at 3. 

R v Hadfield (1800), 27 State Tr 1281.


argued for a new construal of “total insanity.” 55 Erskine noted that true total 

insanity, where one does not understand who he is, where he is, or what he is 

doing, does not exist; rather, insanity may be “delusion where there is no frenzy or 

raving madness…”. 56 Thus, the ground work was laid for the insanity defence to 

be considered in cases where the accused is merely deluded, notwithstanding his 

capability of some level of reasoning and forethought. This change represents a 

marked departure from the traditional characterization of the insane as “idiots” 57 

or “wild beasts”, 58 insofar as otherwise relatively intelligent people could be 

considered insane in the right circumstances. 

D. The M’Naghten Rules 

The M’Naghten rules originated from M’Naghten’s Case, 59 and continue to 

form a large basis for the modern conception of the NCR defence. M’Naghten 

had fatally shot the English Prime Minister’s private secretary, believing him to be 

the Prime Minister himself. His motivation in doing so was his delusional belief 

that the government was persecuting him. M’Naghten was clearly able to make 

out his insanity plea but his acquittal sparked public outcry which resulted in a 

formal judicial “clarification” of the law on the insanity defence. 60 Thus, the 

M’Naghten rule was declared as follows, that, in order to acquit a person on 

grounds of insanity,“[i]t must be clearly proven that, at the time of the committing 

of the act, the party accused was labouring under such a defect of reason, from 

disease of the mind, as not to know the nature and quality of the act he was 

doing, or, if he did know it, that he did not know what he was doing was 

wrong.” 61 

While this characterization of the defence was simple, it presented a severe 

problem which persisted until rather recently in Canadian jurisprudence 62 , which 

I will discuss below. The benefit of the M’Naghten rules is that they set out a 

uniform guide by which to solicit expert evidence in determining the sanity of the 

accused at the time of the alleged offence. It was no longer a question of the 

accused’s general mental competence, sanity, or predilections. The expert would 

simply be asked whether or not he thought the accused was deprived of his 

understanding of right and wrong or his understanding of the nature and 

consequences of his acts, with respect to the offence. 63 In England, the following 

55 

56 

57 

58 

59 

60 

61 

62 

63 

Quen, supra note 48. 

Ibid. 

Berger, supra note 46. 

Arnold’s Case, supra note 52. 

Daniel M’Naghten’s case (1843), 10 Cl & F 200 at 210, 8 ER 718. 

Quen, supra note 48. 

Supra note 59 at 722 [cited to ER]. 

R v Chaulk [1990] 3 SCR 1303. 

FA Whitlock, Criminal Responsibility and Mental Illness, (Toronto: Butterworths & Co, 1963) at 9.


century saw great reliance on the M’Naghten rules, but perhaps only in a technical 

sense. Frequently, juries seemed to disregard their instructions as to the 

application of the M’Naghten rules and rendered decisions based on their lay 

perceptions of the accused’s sanity. 64 So, while the defence of insanity was meant 

to be a question strictly concerning the mental state of the accused when he 

committed the crime, it often happened that this technical requirement would be 

overridden by considerations of whether the accused was insane in general. 

In Canada, the Code largely adopted the language of the M’Naghten rules, 65 

but in doing so opened the door to another set of problems. 

V. THE CURRENT DEFENCE IN CANADA – THE NCR DEFENCE 

No longer the “insanity defence”, in Canada, one may be acquitted of a crime 

on the basis that he was “not criminally responsible”. The Code sets out the 

following provisions for the NCR defence: 

16. (1) No person is criminally responsible for an act committed or an omission made 

while suffering from a mental disorder that rendered the person incapable of appreciating 

the nature and quality of the act or omission or of knowing that it was wrong. 

(2) “mental disorder” means a disease of the mind. 66 

There are two main requirements which must be met in order to successfully 

raise the NCR defence. First, the accused must have been suffering from a disease 

of the mind at the time he committed the crime. This requirement is simply to 

exclude those prone to bursts of rage, transient intoxication, and those of lesser 

intelligence. 67 Regarding the definition of disease of the mind in more recent 

Canadian jurisprudence, Dickson J (as he then was) held in R v Cooper that “…in a 

legal sense disease of the mind embraces any illness, disorder or abnormal 

condition which impairs the human mind and its functioning, excluding 

however, self-induced states caused by alcohol or drugs, as well as transitory 

mental states such as hysteria or concussion.” 68 Similar sentiment was expressed in 

R v Rabey 69 by the minority (who dissented for independent reasons), to the effect 

that a disease of the mind may be “curable or incurable, temporary or not, 

recurring or non-recurring…”. 70 It is significant that the term “disease of the 

mind”, as it is employed in the context of the NCR defence, is a legal term and 

64 

65 

66 

67 

68 

69 

70 

Ibid. 

Mr. Justice GA Martin, “Mental Disorder and Criminal Responsibility in Canadian Law” in SJ 

Hucker et al, eds, Mental Disorder and Criminal Responsibility (Toronto: Butterworth & Co 

(Canada) Ltd, 1981) at 15. 

Supra note 2, ss 2 and 16. 

Martin, supra note 65 at 15. 

[1980] 1 SCR 1149 at para 51. 

[1980] 2 SCR 513. 

Ibid at para 45.


not a medical one. The question as to whether or not a person suffers from a 

disease of the mind is a question of mixed fact and law. Expert medical evidence 

of the mental state of the accused is relevant and is considered by the court; but it 

is the trier of fact, and not a doctor, who will ultimately determine whether the 

person in question has a disease of the mind. 71 

It is thus clear that serious mental disorders such as those involving psychoses 

(such as schizophrenia), 72 or other disorders which cause delusions, 73 constitute 

diseases of the mind; which would satisfy the first requirement for application of 

the NCR defence. Of course, it is not a requirement that one suffer from some 

sort of psychosis before he can be deemed to possess a disease of the mind. 

The second requirement for making use of the NCR defence is that the 

accused must fit under one of two “branches” set out by s 16(1) of the Code. The 

accused must either have been unable to appreciate the nature and quality of his 

acts or omissions or he must have been unable to understand whether or not they 

were right or wrong. The incapability requirement for both branches is high. A 

person is incapable only when there is a complete loss of capacity to appreciate 

the nature and quality of the act, or know it is wrong; it is not merely an inability 

to calmly consider the act. 74 

A. The First Branch: Appreciating the Nature and Quality 

As set out in Abbey 75 , if the accused is under a delusion or is otherwise unable 

to truly understand the consequences of his actions, the mens rea of his crime is 

negated. This is because the accused, despite “knowing” what the consequences of 

his acts would be, did not “appreciate” them. Appreciation requires a full 

understanding and ability to analyze information, whereas to know something is 

to merely have a base level awareness of it. 76 For instance, I might “know” that I 

have a vial of poison, yet innocently give it to a thirsty friend to drink without 

appreciating that quenching his thirst in such a way will also kill him. Therefore, 

even if an accused can accurately recite the basic cause and effect circumstances of 

his crime (understanding that stabbing someone can kill them), and even 

understand that he might face penal consequences, he may still fit under this 

branch if he was under a fundamental mistaken apprehension about the 

situation. For instance, if the accused thought that he was the embodiment of 

God and must kill Satan, who is really his innocent neighbour, then he would fall 

71 

72 

73 

74 

75 

76 

Ibid at para 9. See also R v Stone, [1999] 2 SCR 290, 134 CCC (3d) 353 (SCC) at para 176. 

See R v Weldon (1995), 86 OAC 362 (Ont CA); leave to appeal refused (1996), 94 OAC 400 

(SCC). 

See R v Abbey, [1982] 2 SCR 24 [Abbey]. 

R v Schwartz, [1977] 1 SCR 673 at para 31 [Schwartz]. 

Abbey, supra note 73 at para 14. 

R v Barnier, [1980] 1 SCR 1124 at paras 15-19.


under this branch of the test. 77 In summary, this branch of inquiry is only 

concerned with whether the accused really understood what he was doing, and 

not whether or not he thought it was wrong. 

B. The Second Branch: Knowing it was Wrong 

At this stage of inquiry, the focus shifts to whether the accused knew that 

what he was doing was wrong, as it has been established that he indeed 

appreciated the nature and consequences of his actions. The problem left over 

from M’Naghten’s Case was with the meaning of “wrong”, as it was then put in the 

phrase “…he did not know what he was doing was wrong”. 78 As similar words 

comprise part of s 16(1) of the Code, it became necessary for the courts to 

determine what exactly “know” meant. The Court did just this in the Chaulk 79 

case. In Chaulk, two youths bludgeoned to death the occupant of a home they had 

broken into. Both youths suffered from a paranoid psychosis which made them 

believe that they could kill with impunity, despite their parallel knowledge that 

killing was against the law in Canada. That is, the accused knew at the time of the 

killing that what they were doing was legally wrong, but their psychoses made 

them believe that they were not morally wrong in killing. Up until this point, the 

definition of “wrong” was restricted to “legally wrong” 80 . 

In Schwartz, the majority held that knowledge of the legal wrongness of an act 

would necessarily imply knowledge of moral wrongness, as it was taken for 

granted that it is morally wrong to break the law. This view was motivated by a 

“floodgate” worry that allowing “wrong” to mean “morally wrong” in itself would 

allow morally vacuous offenders to claim that their misdeeds were not wrong 

according to them, thus qualifying them for the NCR defence. Dickson J (as he 

then was) for the minority held that “wrong” should include both legal wrongness 

and moral wrongness. This was because, as occurred subsequently in Chaulk, it is 

possible for one to both know that something is legally wrong, and yet feel 

morally justified (or even obligated) to do it anyway. He also foreclosed on the 

possibility of a flood of subjective morality justifications, as he noted that 

“‘[m]oral wrong’ is not to be judged by the personal standards of the offender but 

by his awareness that society regards the act as wrong”. 81 

The Court in Chaulk adopted the position of Dickson J’s dissent in Schwartz, 

and the modern meaning of “know” with respect to “wrongness” in the NCR 

defence now includes both legal wrongness and moral wrongness. 82 

77 

78 

79 

80 

81 

82 

This was the case in R v Landry [1991] 1 SCR 99. 


R v Chaulk, supra note 63. 

Schwartz, supra note 74. 




Despite the complex and evolving jurisprudence on the matter, the second 

branch of the NCR defence can be aptly summarized as “…available if an accused 

proves on the balance of probabilities that he suffer[ed] from a disease of the 

mind that render[ed] him incapable of knowing that his act was legally or morally 

wrong.” 83 

VI. 

RECKLESS EXACERBATION OF MENTAL DISORDER CAUSING 

HARM OR DEATH IS CRIMINAL NEGLIGENCE 

Having reviewed this history and current interpretation of the NCR defence, 

and considering the scenario posed at the beginning of this paper involving 

someone who recklessly discontinues their anti-psychotic medication, two main 

points emerge. First, just as in the Weldon case, 84 it seems to be of little import to 

the NCR defence itself whether or not the mentally disturbed person was reckless 

with regard to taking his medication. While adherence to medication may be a 

factor influencing the release of a mentally disordered patient already held 

involuntarily after pleading the NCR defence, 85 there is no statutory nor common 

law provision which allows it to be considered by a court assessing the validity of 

the NCR defence. The second point emerging from the history of insanity 

defences as well as the surveyed moral philosophy is that people should be held 

accountable for their actions made while they were of sound mind or otherwise 

capable of forming a mens rea. 

I believe these two points can be reconciled, and this reconciliation forms the 

proposal of this paper. While it is surely not the case that neglecting to take one’s 

medications should carry with it the same criminal culpability and punishment as 

a murder, the fact that the former lead to the latter and the accused was able to 

foresee this suggests that there should be some culpability and punishment 

attached to the former act or omission. 

Where the person who is medicated is of sound mind (outside the NCR 

threshold) at the time he recklessly discontinues his medication regimen and as a 

result has a psychological episode in which he hurts or kills someone, we should 

frame the omission to take the medication as criminal negligence causing death or 

bodily harm. As it is only the omission itself which is criminalized, the accused 

may still rely on the NCR defence in respect of the injury or death which he 

caused in his disordered state. Of course, the punishment would have to fit the 

crime and should involve consideration of the accused’s precarious (albeit not 

NCR) mental state at the time the reckless disengagement from treatment 

83 

84 

85 

R v Worth (1995), 40 CR (4th) 123 (Ont CA) at para 10. 


Criminal Code, supra note 2, s 672.81(1.2).


occurred. The following is a detailed analysis of my proposal, addressing the crime 

as well as the appropriate punishment. 

The Code defines criminal negligence as follows: 

219. (1) Every one is criminally negligent who 

(a) in doing anything, or 

(b) in omitting to do anything that it is his duty to do, 

shows wanton or reckless disregard for the lives or safety of other persons. 

Definition of “duty”: 

(2) For the purposes of this section, “duty” means a duty imposed by law. 86 

This definition of criminal negligence is supplemented by the common law 

and yields several requirements which must be met in order to prove a case of 

criminal negligence. Of course, one is not charged with “criminal negligence”, but 

rather criminal negligence causing bodily harm or death. The following sections 

outline the essential elements of the offences and demonstrate how the reckless 

failure to abate one’s mental disorder can satisfy those requirements. 

A. Parts 1(a) and 1(b) Suggest the Offence May be Constituted by 

Either an Action or Inaction. 

Clearly, the wording of the provision in the Code leaves open the possibility 

of failing to take one’s medication as constituting the actus reus of criminal 

negligence, as an inaction. This requirement is therefore met, presumably without 

much contention. 

B. The Mens Rea Requirement of Criminal Negligence is 

Objective 

As the Code requires a “wanton or reckless disregard for the lives or safety of 

others” in order to establish criminal negligence, it is necessary to determine what 

standard of conduct and mens rea is anticipated by these words in order to see if 

neglecting to take anti-psychotic pills would fall under the offence. 

As there is no mental state involved in criminal negligence per se, the 

standard of conduct is objective. While the mens rea of criminal negligence has 

always been a contested subject in Canadian jurisprudence, the Supreme Court of 

Canada began to set the standard in R v Tutton, 87 however, the Court was divided 

on the question of whether criminal negligence is a purely objective offence, or a 

mixed subjective/objective offence. Three justices held the standard to be purely 

objective, while three concluded that there is a subjective component to consider, 

holding that “…‘reckless disregard for the lives or safety of other persons’…read in 

the context of Canadian criminal law jurisprudence, requires the Crown to prove 

86 

87 

Ibid s 219. 

(1989), 48 CCC (3d) 129.


advertence or awareness of the risk that the prohibited consequences will come to 

pass.” 88 The standard has been expanded upon in subsequent cases. In R v 

Gingrich, 89 the Ontario Court of Appeal held that 

The crime of criminal negligence is negligence. There is no need to import the concept of a 

subjective intent in order to obtain a conviction. The crime is the well-recognized tort of 

civil negligence; the sins of omission and commission that cause injury to one's neighbour, 

elevated to a crime by their magnitude of wanton and reckless disregard for the lives and 

safety of others. 90 

An interesting analogy emerges from this case. Gingrich was charged and 

convicted of criminal negligence involving deaths caused by a motor vehicle 

accident. Gingrich was a truck driver and was scheduled to head home after a 

delivery out of province. He was aware of the fact that his tractor-trailer’s brakes 

were not working before he set out, and despite the ability for him to wait and 

obtain a replacement part, and his knowledge of what might happen if he was to 

lose control of his vehicle without his brakes, he set out on his return voyage. At 

some point he lost control of the truck, the brakes did not work, and two people 

died in the ensuing crash. If one can be convicted of criminal negligence for not 

ensuring that one’s brakes were working while fully aware of the risk that it 

entailed, perhaps one should also be so guilty of failing to ensure that one’s own 

“mental brakes” are in working order, where one has the ability to do so It is not 

so specious an analogy to think of anti-psychotic medicine as “brakes” which help 

control an otherwise potentially unstable and dangerous person, in those cases 

where the person has been informed that his instability is of a dangerous nature. 

The Supreme Court of Canada more conclusively set the standard for 

criminal negligence in R v Creighton. 91 The crown must prove that a reasonable 

person in the context of the offence would have foreseen the risk of death (or 

injury) created by his conduct. 92 The matter of what constitutes a “reasonable 

person” is a significant concern here. What standard shall the person who 

recklessly discontinues his medication be judged by The “reasonable ordinary 

person with no underlying mental disorder”, or the “reasonable person with a 

serious but successfully medicated mental disorder who suffers some side effects 

of the medication” One could argue that the standard would be much lower in 

the latter instance because it would take into account the frailties of the accused 

suffering from his disorder. In actuality, the latter standard is not lower than the 

former, as will be explained, so it really makes no difference which 

characterization of a reasonable person is used, be it the “average mentally healthy 

person” or the “average mentally disordered but medicated person”. 

88 

89 

90 

91 

92 


(1991), 65 CCC (3d) 188 (Ont CA). 


[1993] 3 SCR 3 [Creighton]. 

Ibid at para 37.


McLachlin J (as she then was) for four of nine justices in Creighton held that 

“considerations of principle and policy dictate the maintenance of a single, 

uniform legal standard of care…subject to one exception: incapacity to appreciate 

the nature of the risk which the activity in question entails.” 93 

As I have posited earlier, assuming that the person with a mental disorder is 

lucid while medicated and below the NCR threshold, then they necessarily have 

legal capacity to appreciate the risks of non-medication adherence; therefore they 

are subject to the same objective standard as anyone else would be. Failing to take 

anti-psychotic medication which might cause a violent break down would clearly 

run counter to the conduct of the reasonable person. 

On the other hand, Lamer, CJ (as he then was), for another four of nine 

justices in the same case, held that “the reasonable person will be invested with 

any enhanced foresight the accused may have enjoyed by virtue of his or her 

membership in a group with special experience or knowledge related to the 

conduct giving rise to the offence.” 94 

Although this technical distinction from McLachlin J’s judgment is generally 

significant, I do not think it is of critical import to the instance of medication 

adherence. Where one has a mental disorder and has been both medicated and 

informed of the consequences of failing to adhere to the medication, then such a 

person indeed possesses such special foresight and knowledge, raising his standard 

of care. Thus, even on the account of a reasonable person set out by Lamer CJ, 

the standard of care is still fairly high, albeit perhaps not quite as high as the pure 

objective standard advocated by McLachlin J. Lamer CJ made special reference to 

“frailties” while enunciating the “checklist” for criminal negligence. Such frailties 

would reasonably include those caused or instanced by mental disorders; however, 

such frailties are not necessarily exculpatory, as: 

A key element of the objective test is that of the control an accused could have exercised 

over the frailty which rendered him or her incapable of acting as the reasonable person 

would in the same circumstances. The notion of control is related to that of moral 

responsibility; if one is able to act prudently and not endanger the life of others, one will be 

held liable for failing to do so. One must be morally – and criminally – responsible to act 

according to his or her capacities not to inflict harm, even unintentional harm. 95 

It was further held that the frailties or traits which might serve as contextual 

considerations must be things which “the accused could not control or otherwise 

manage in the circumstances.” 96 From this, it is clear that one who fails to take his 

anti-psychotic medication has failed to act prudentially in a manner which would 

have otherwise mitigated his own frailties. While it is true that the side effects 

from the medication may have induced yet more frailties, they could not be said 

93 

94 

95 

96 




Ibid at para 44.


to be overpowering, assuming that they did not push the person into the NCR 

threshold at that time. 

Given the relatively high standards of care and conduct set out by both 

judgments in Creighton pertaining to culpable negligence, I would entertain either 

standard in the analysis as to whether or not the person who discontinued his 

anti-psychotic medication was criminally negligent. Whether one subscribes to 

Lamer CJ’s “modified objective” standard or McLachlin J’s “pure objective” 

standard, both would equally condemn the reckless discontinuation of the 

medication. Non-adherence to anti-psychotic medication would clearly violate the 

pure objective standard of conduct and would also, in the right circumstances, 

violate the modified objective standard. This is because the reasonable person in 

that case would be vested with the special knowledge of his disorder and 

medication, which would serve to counter any frailties which might have 

otherwise served to lower his standard of care. 

Having disposed of the mens rea component of criminal negligence, one must 

define the actus reus component. In Creighton, the Court held that in order to 

constitute culpable negligence the act itself must have represented a “marked 

departure from the standards of the reasonable person in all the circumstances of 

the case.” 97 Recalling the analogy I drew involving the Gingrich case and failing to 

ensure that one’s brakes are in working order, I think it is plain to see that if, in 

that case, driving with faulty brakes represents a marked departure from the 

conduct of the reasonable person, then so too should operating without one’s 

anti-psychotic medication. Quite simply, where the risk is great and includes a 

possibility of significant harm, and where the person knows this and has been 

given a method by which to greatly reduce or eliminate the chance of such an 

eventuality occurring, then indeed it is a marked departure from the standard of 

the reasonable person to disregard such preventative measures. This holds true 

even where the reasonable person is a “reasonable medicated person suffering 

from schizophrenia”, for the same reasons given in the discussion on mens rea. 

In summary, there is good reason to believe that recklessly discontinuing antipsychotic 

medication would satisfy the mens rea and actus reus requirements of the 

offence of criminal negligence. As in all negligence, foreseeability is the pivotal 

matter, and regardless of which technical standard of care the accused is judged 

by, it seems clear that where the possibility of harm to others is foreseen and 

disregarded, then criminal negligence may have occurred. 

It may be argued that those with mental disorders who are successfully 

medicated (and who otherwise might be prone to violence or psychotic episodes) 

would not be likely to foresee themselves, now stable, ever becoming violent, and 

so the foreseeability of violent consequences through the discontinuation of 

medication is lacking. Indeed, the evidence is that most people who are psychotic 

97 

Ibid at para 144. See also para 37.


are not violent, 98 but this does not mean that it would be unreasonable to suggest 

that, while stable, the person with the mental disorder would not foresee harm 

arising if he should discontinue treatment. As noted above, whether the standard 

of foresight in criminal negligence is to be purely objective or to have a subjective 

component as well, I think that in many cases this foresight will exist. The 

individual need not foresee in great detail the extreme and unlikely scenarios 

which might arise if he should discontinue his medication, nor must the risk of 

harm be especially likely to constitute the requisite foresight; rather, he need only 

understand, as evidenced to him either by his doctor’s warnings or by his own 

experience, that he may lose touch with reality and could possibly become violent 

if he should stop taking his medication. 

I must reiterate that in those cases where the person suffering from the 

mental disorder is not aware of the danger which he may pose to himself or others 

when he is not medicated, he cannot be said to have foreseen the consequences of 

his failing to take his medication. For instance, if the person has never 

experienced a violent episode before and had only presented with mild auditory 

hallucinations (such as hearing voices whispering to him), and risks of failing to 

take his medication were not successfully conveyed to him by his doctor while he 

was stable, then the person would quite understandably not foresee the risk in 

going off of his medication. However, if the person has actually experienced 

extreme or violent psychotic episodes in the past or has been duly warned by his 

physician of the serious risks of failing to medicate, as was the case with Joubert, 

then this should suffice to establish foresight of danger, which, if disregarded, 

should constitute the “marked departure” from the normal standard of care. 

C. There Must Be a Breach of a Duty Imposed by Law. 

The last significant hurdle to overcome in making out the offence of criminal 

negligence is establishing the “duty” imposed by law which is violated when one 

recklessly fails to take his anti-psychotic medication. The duty imposed by law may 

be either a common law duty or a duty imposed by statute. 99 I will put forth 

arguments positing a duty imposed by law under both of those avenues. If either 

or both of these arguments are plausible, then there is good reason to deem it 

criminal negligence when recklessly failing to adhere to one’s anti-psychotic 

medication regimen results in the injury or death of another due to psychological 

break down, notwithstanding that the NCR defence applies to all actions taken 

whilst in the midst of the breakdown. 

98 

99 

See: Anders Tengstrom et al, “Schizophrenia and Criminal Offending” (2004) 31:4 Criminal 

Justice and Behavior 367; Jeffrey W Swanson et al, “A National Study of Violent Behavior in 

Persons with Schizophrenia” (2006) 63:5 Arch Gen Psychiatry 490. 

R v Thornton [1993] 2 SCR 445 at paras 9 to 15.


1. Common Law Duty – Imported from Civil Negligence 

The civil duty of care to refrain from acting in a manner which may cause 

harm to others was set out as the “neighbour principle” in the great case of 

Donoghue v Stevenson. 100 Violation of the duty of care may give rise to a cause of 

action in the tort of negligence. 101 Regarding the neighbour principle, Lord Atkin 

of the House of Lords held that 

…you must not injure your neighbour… You must take reasonable care to avoid acts or 

omissions which you can reasonably foresee would be likely to injure your neighbour, 

[those] persons who are so closely and directly affected by my act that I ought reasonably to 

have them in contemplation as being so affected when I am directing my mind to the acts 

or omissions which are called in question. 102 

As this general principle holds, we must take care not to injure those around 

us whom we can reasonably foresee to be impacted by our conduct. Of course, the 

standard is not one of perfection, as the reasonable person need only be prudent 

in the circumstances, taking into account the likelihood of harm, the magnitude 

of potential harm, and the cost of preventative measures. 103 In many respects, this 

standard of care is analogous to the standard of care in criminal negligence. Based 

on this general rule, it seems natural that foreseeability of danger to others at the 

prospect of discontinuing one’s anti-psychotic medication would set out the duty 

of care owed by him. The possibility of danger to others may vary depending on 

the nature of the person’s mental illness, as would the potential magnitude of 

harm. For instance, someone with a mental disorder who has never been disposed 

to violence would reasonably foresee a lesser magnitude of harm (if any) to those 

around him if he stopped taking his medication; however, someone prone to 

violent outbursts when unstable ought to reasonably foresee extreme danger if he 

should stop taking his medication. The cost of preventative measures would be 

nominal (assuming the person could afford the medication or had insurance), as 

such measures only include adherence to the treatment regimen. If the person 

adheres to their regimen, then he satisfies his duty of care. 

One significant issue remains before a duty of care to others would be 

attributed to the medicated person with a mental disorder. Courts will deny 

finding a duty of care in cases where public policy reasons would override the 

reasons to hold the person responsible. 104 For instance, in Dobson v Dobson, 105 the 

Supreme Court of Canada held that pregnant mothers do not owe a duty of care 

to their unborn children, despite the fact that everyone else in the world does. To 

hold mothers negligent in tort for injuries caused to their foetus would be to 

100 

101 

102 

103 

104 

105 

[1932] All ER Rep 1; [1932] AC 562 (HL) [Donoghue, cited to AC]. 

Philip H Osborne, The Law of Torts, 3d ed (Toronto: Irwin Law Inc, 2007) at 25. 

Donoghue v Stevenson, supra note 100 at 580. 

Osborne, supra note 101 at 30-34. See also Bolton v Stone, [1951] AC 850 (HL). 

See Cooper v Hobart 2001 SCC 79. 

(1999), 45 CCLT (2d) 217 (SCC).


unduly restrict the liberty of the mother, as she might fear taking the slightest of 

risks (including driving a vehicle), injuring the foetus, and being open to a 

negligence suit once the child is born. Similarly, someone might argue that 

imposing a duty of care on those with mental disorders that they must adhere to 

their treatment is also restrictive of their liberty interests and their autonomy. 

These arguments should not be compelling and do not, I think, represent an 

overriding public policy concern for denying the existence of a duty of care owed 

to others by those taking anti-psychotic drugs. 

Certainly the right to refuse treatment is an important one which speaks to 

one’s dignity and autonomy, but there is a limit to this. Respecting someone’s 

desire to refuse treatment (or perhaps their inability to maintain treatment) might 

not be objectionable in cases where the person is only putting his own health at 

risk. The same should not be said, however, when the person is putting someone 

else at risk by exercising his right to refuse treatment. Recently in Manitoba, a 

woman was detained in jail in order to prevent the spread of tuberculosis. She 

had been diagnosed previously but had allegedly refused to comply with treatment 

orders from physicians. Given that she worked in the sex trade and thus 

represented a significant infection risk to others, she was detained. 106 If we are 

willing to detain someone in cases such as this, as she exercises her right to refuse 

treatment, this is arguably curtailing that right, and rightfully so, I think. Thus, 

the right to refuse treatment is not absolute, as we are willing to essentially, albeit 

sometimes indirectly, deny it outright. 107 Regardless, depending on the 

circumstances it may or may not be justifiable to deny the right to refuse 

treatment in the first place; but in any event, even if one possesses a right to refuse 

treatment, this does not mean that he cannot be held responsible after the fact if 

in exercising his right he injures or kills someone. 

While they are medicated and in their stable state, people with mental 

illnesses would presumably be liable to any other civil negligence action, provided 

they could foresee the consequences of their actions. For instance, if a person 

with schizophrenia, whilst in the stable medication phase of his treatment, burned 

106 

107 

“Manitoba woman jailed after stopping tuberculosis treatment” The Globe and Mail (2 August 

2011), online: . 

The detention was permitted by 

The Public Health Act, CCSM c P210. People with a communicable disease may be ordered to be 

treated or to isolate themselves (s 43(2)). Even though a person may refuse to comply with any 

order made under a provision of this Act (ss 43(4), 97), she may be detained if the medical 

officer judges her to be a threat to public safety (47(2)) and this detention may be extended 

indefinitely as long as the medical officer believes the person is a threat to public safety (ss 50(1), 

(2), (3)). 

Arguably, the right to refuse treatment can be practically curtailed in cases where the refusal of 

treatment entails a threat to the public safety. Even if treatment cannot be forced upon the 

person as per s 97 of The Public Health Act, detaining the person until she “willingly” complies 

nonetheless diminishes the right to refuse treatment.


down his neighbour’s house because he created a bonfire too close to it, (a 

foreseeably dangerous activity) there would be no reason to exclude tortious (or 

possibly criminal) liability merely because he has a mental illness. Why then 

should it be any different if instead the person went off his medication, knowing 

that it might result in a violent breakdown 

It might be argued that, for sympathetic and compassionate reasons, the 

mentally ill should not be held to have a duty of care owed to others which 

involves them mitigating their own mental illness, primarily because it might 

practically be a “symptom” of the disorder that they have difficulty adhering to 

their medication. This is not a strong argument. In Fiala v Cechmanek 108 , a civil 

negligence action was brought against the defendant for his role in a motor 

vehicle accident. The defendant had bipolar disorder but he did not know it. It 

had not been diagnosed, nor had he experienced any symptoms of it. One day 

while out for a run he had a severe manic episode in which he ran into traffic, 

banged on the window of a passing car, jumped into the car through the sun roof, 

and proceeded to strangle the driver, causing her to crash into another car. Firstly, 

it must be noted that in Fiala, the Court was discussing the appropriate standard 

of care owed by the defendant. Based on the fact that a discussion about standard 

of care was even occurring, the Court must have been satisfied that there was a 

duty of care owed by him to the general public. The Court held that there had 

been no violation of the standard of care on the part of the defendant; but it did 

so noting the fact that the defendant was not aware of his mental disorder and 

therefore could obviously not foresee the results of failing to attend to it. 109 

The Court set out its test for avoiding tortious liability for a defendant who 

was “afflicted [by a mental illness] suddenly and without warning.” The defendant 

would have to prove either that he had no capacity to appreciate his duty of care 

at the time or that he could not discharge his duty of care as a result of the mental 

illness. 110 The result of the application of the test is highly analogous to the NCR 

test itself, but importantly, the Court carefully noted that it can only be applied 

where the mental deterioration was sudden and without warning, which by 

negative inference one can interpret to mean that had the person been aware of 

their mental disorder (if it was not sudden nor without warning) then there would 

be liability. Notably, the Court directed its attention toward the standard of care, 

simply dispensing with policy concerns over whether a duty of care was owed by 

the mentally ill defendant. 

Moreover, the “sympathy” policy argument to exclude civil liability for 

reckless non-adherence to anti-psychotic medication was explicitly rejected in 

Wenden v Trikha. 111 In that case, the defendant caused a car accident by driving 

108 

109 

110 

111 

2001 ABCA 169, 201 DLR (4th) 680 [Fiala]. 


Ibid. 

116 AR 81, 8 CCLT (2d) 138, affirmed 135 AR 382 (CA), at paras 140-144.


dangerously, thinking that as he was driving, he was travelling through time. The 

defendant had discontinued use of his anti-psychotic medication. The Court held 

both that he was negligent in respect of his actions while he was in his disordered 

state, and even if he did not have the capacity to have been negligent at that time, 

that he was negligent in respect of failing to maintain his medication regimen. 

The Court emphasized foreseeability as pivotal to negligence, noting how the 

defendant could foresee the consequences of going off of his medication, as: 

Trikha is an intelligent person affected with a mental problem which can only be 

controlled by medication. … Indeed, it seems that [the medication] had controlled the 

illness. I am satisfied that Trikha was told to take his medication and was fully aware of the 

possible consequences if he failed to do so … [h]e knew exactly why he was to take his 

medication and the risk he ran if he did not. 112 

Based on the foregoing, it is clear that the duty of care imposed by civil 

negligence and the law of torts would include the duty to take one’s anti-psychotic 

medication, where foreseeability of harm to others is present. Therefore, it is 

arguable that this duty could serve as the “duty” required by the offence of 

criminal negligence. 

2. A Statutory Duty of Care – Common Nuisance, Equivalent to 

Criminal Negligence 

The duty of care of tort law may be imported into the meaning of “duty” in 

section 219 of the Code; however, it is also arguable that that civil duty of care has 

already been grafted on to the offence of common nuisance (section 180), and is 

therefore a duty prescribed by the Code itself. 

In R v Thornton, 113 the accused was found guilty of committing a common 

nuisance endangering the lives or health of the public contrary to section 176 

(now section 180) of the Code. 114 He had been diagnosed with HIV and had been 

informed of, among other things, the fact that he must not donate blood because 

that is how HIV is transmitted. He donated blood anyway, but the tainted blood 

was found on testing, and the accused was charged for having created a risk to 

public health and safety. The Code sets out the offence of common nuisance as: 

180(2) For the purposes of this section, every one commits a common nuisance who does 

an unlawful act or fails to discharge a legal duty and thereby 

(a) endangers the lives, safety or health, property or comfort of the public; 

The term “legal duty” set out in this provision, while distinct from the 

wording of the “duty imposed by law” required by section 219 for criminal 

negligence, carries the exact same meaning; 115 therefore whatever might be said 

112 

113 

114 

115 


R v Thornton (1991), 1 OR (3d) 480 (Ont CA); affirmed (1993), 13 OR (3d) 744 (SCC). 

Criminal Code, supra note 2, s 180. 

R v Thornton, supra note 113 at para 14.


about a “legal duty” vis-a-vis common nuisance would apply equivalently to a “duty 

imposed by law” vis-a-vis criminal negligence. Referencing strong reliance on civil 

negligence, the Court noted that: 

there is deeply embedded in the common law a broad fundamental duty which, although 

subject to many qualifications, requires everyone to refrain from conduct which could 

injure another. … At the very least, however, it requires everyone to refrain from conduct 

which it is reasonably foreseeable could cause serious harm to other persons. Accepting, as 

I have said, that a “legal duty” within the meaning of that term in s. 180(2) includes a duty 

arising at common law, I think that the common law duty to refrain from conduct which it 

is reasonably foreseeable could cause serious harm to other persons is a “legal duty” within 

the meaning of that term in s. 180(2). 116 

As evidenced by this passage, it appears as though the Court essentially 

transplanted the duty of care behind the “neighbour principle” from civil 

negligence law and made it part of the meaning of “legal duty” within section 

180(2) of the Code. Recalling that the “duties” of section 180 and section 219 are 

equivalent, this must mean that the duty of care from tort law has been 

recognized by the Court as a “duty” which, if breached, may result in criminal 

negligence. 

In addition to the duty of care as it is imported by section 180(2) of the Code, 

there is perhaps an even more direct statutory mechanism for finding a breach of 

legal duty with respect to a person taking prescribed anti-psychotic medication 

which is known to inhibit violence. When the Thornton case was appealed and 

received comment from the Supreme Court of Canada, 117 Lamer CJ found that 

the crime of common nuisance was made out via section 216 of the Code. Section 

216 reads: 

216. Every one who undertakes to administer surgical or medical treatment to another 

person or to do any other lawful act that may endanger the life of another person is, except 

in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and 

care in so doing. 

Some might argue that using section 216 as a gateway to common nuisance 

in Thornton was a stretch, as donating blood is difficult to construe as 

administering a surgical or medical treatment to another person. That said, 

section 216 is broadened by the requirement to use reasonable knowledge, skill, 

and care, in doing any other lawful act. In any case, given that section 216 was 

held to in fact encompass a duty of care when donating blood, it should be ever 

more likely that it would also encompass a duty of care in respect of one taking (or 

not taking) his anti-psychotic medication. If donating contaminated blood 

constitutes a failure to use reasonable knowledge, skill, and care, then 

discontinuing prescribed antipsychotic medication outside of a controlled 

environment such as a hospital (which would arguably satisfy the requirement for 

116 

117 

Ibid at para 21 [emphasis added]. 

Supra note 99.


taking reasonable care) should likewise be considered a breach of the 

requirements of section 216. That is, section 216 can be construed to require that 

individuals taking antipsychotic medication (a lawful act) are under a statutory 

duty to do so using reasonable knowledge, skill, and care. 

In summary, if, in order to establish a charge of criminal negligence, it is not 

desirable to find a breach of legal duty by resorting to the common law, then the 

legal duty which is breached by failing to take one’s anti-psychotic medication may 

come from the Code. In particular, either section 180(2) (common nuisance) or 

section 216 (the duty to perform lawful acts with reasonable knowledge, skill, and 

care) might be argued. 

D. The Establishment of Criminal Negligence 

Based on the foregoing, there is good reason to consider the reckless nonadherence 

to an anti-psychotic medication as criminal negligence where that 

person commits a crime as a result of the ensuing psychological deterioration. I 

have argued that the failure to take medication can be an omission, that such an 

omission would be unreasonable, and that that omission would breach the duty 

of care owed to others. In practice, it may be difficult to establish in evidence that 

the accused was stable while on his medication, knew the risks associated with 

discontinuing it, actually did discontinue it, and that this caused the mental 

deterioration which lead to the violent incident. 

In those difficult cases the charge of criminal negligence might fail on 

evidentiary grounds; however, the difficulty inherent to some cases in establishing 

the criminal negligence requirements I have enunciated should not be fatal to the 

argument at hand. There are undoubtedly many cases where such evidence can be 

adduced. As happened in the Joubert case, a person’s struggle with medication 

adherence, as well as their mental state when on and off the medication, may be 

well known to the person’s family, friends, physician, or neighbours. If such 

people are canvassed and indicate that medication adherence was a probable 

factor in what turned out to be the NCR offence, the crown may proceed with a 

criminal negligence charge. The accused himself may also wish to testify (and thus 

be open to cross-examination) in regard to his medication adherence if the Crown 

makes the medication an issue. 

VII. 

SPECIFIC PUNISHMENT 

It is not the aim of this paper to explore the logistical factors around the 

sentencing of one guilty of criminal negligence in the circumstances of reckless 

exacerbation of a mental disorder. Whether a new trial would have to occur or 

whether the Crown could simply accept an NCR plea and re-charge the accused 

with the criminal negligence (a lesser offence with a lesser punishment) is a


logistical issue which, though admittedly important, I do not consider here. Also 

important but omitted from discussion here is the impact from the Charter, 118 

though any such impact may be negligible as long as the punishment is 

commensurate with the culpability involved in the offence. 119 

For context, it is useful to consider what happens to someone who 

successfully pleads the NCR defence. Once the trier of fact has determined that 

the accused was indeed suffering from a mental disorder which deprived him of 

the ability to appreciate the nature of his actions or know that they were wrong, a 

verdict of “not criminally responsible on account of mental disorder” is 

rendered. 120 At this point, the court may make a disposition of the accused or 

refer the accused to the review board. Both the court and the review board have 

the power to discharge the accused absolutely where they find the accused not to 

be a danger to society. Alternatively, they may discharge with conditions or they 

may order detention in a psychiatric facility. In all events, the court and review 

board must make the least onerous disposition possible, balancing public safety 

and the liberty of the accused. 121 Notably, this means mentally ill people may be 

released provided they do not pose a safety risk. One does not have to be “cured” 

to be released. 

If detained or subject to a conditional discharge, the review board must hold 

a review hearing at least once per year to determine if the accused is fit for release. 

If, however, the accused was found NCR of a serious violent offence and the 

review board has information indicating that the accused is not likely to improve, 

then it may extend the period between reviews. 122 Presumably, the review board 

would take into account an accused’s ability and history of medication adherence 

in determining when he is fit for release. What this means is that an accused who 

pled the NCR defence and who is currently dangerous will not be released and 

public safety will not be an issue. Thus, there is no “public safety” justification to 

punishing an accused for his criminal negligence in discontinuing his medication, 

and adding jail time on top of time spent in a psychiatric institution would seem 

not to be rehabilitative at all. Yet the accused was reckless and as a result someone 

else was hurt or killed, and for this some punishment ought to result, despite the 

culpability of the accused being less than that of a regular assault or murder. 

As noted earlier, it is a fundamental principle of law that “[a] sentence must 

be proportionate to the gravity of the offence and the degree of responsibility of 

the offender.” 123 As well, the Court should consider alternate sentencing options 

taking into account the circumstances of the offender. 124 There is also the fact 

118 

119 

120 

121 

122 

123 

Charter, supra note 29. 

Creighton, supra note 91 at para 99. 

Criminal Code, supra note 2, s 672.34. 

Ibid s 672.54. 

Ibid s 672.81(1) and 672.82(1.2). 

Ibid s 718.1.


that, as a matter of logic, the punishment for criminal negligence in this case 

should not be severe. It would make little sense to allow the person to (rightly) 

plead the NCR defence in respect of a murder he had committed while in the 

throes of his disorder and thus allow him to avoid penal sanctions for the murder, 

only to turn around and charge him with criminal negligence for failing to take 

his medication and subsequently punish him just as we would have for the 

murder had he not been NCR. What, then, are the alternatives 

To be sure, critics of the justice system, who find little utility in incarcerating 

offenders generally, will likely not find any utility in incarcerating someone who 

intentionally exacerbated his own mental disorder and who is now in a mental 

health institution. Indeed, not only would incarceration in a prison be unhelpful 

for the continued rehabilitation of the person, but it would in all likelihood be 

counterproductive to that goal. On the other hand, do we not think it proper to 

punish a drunk driver who caused the death of a pedestrian in a crash, even if, as 

a result of the accident, the drunk driver himself was rendered a paraplegic There 

would be little danger of the paraplegic ever driving drunk again, and so there is 

no public safety value in punishing him. Provided that the drunk driver was 

remorseful, any prison time would be purely retributivist and serve only to 

denounce the conduct and make the public feel that justice was served. In spite of 

his misfortune, I think it is still proper to hold him accountable for his crime, 

albeit that we might be more lenient in sentencing. Likewise, acknowledging the 

crime of pre-NCR actions of a now-NCR individual should be warranted, with 

leniency in sentencing if appropriate. 

I stress again that the ambit of this paper is to argue that there are good legal 

and philosophical reasons to punish reckless non-adherence to anti-psychotic 

medication. That is, I have argued that something should be done. What I have 

not considered is what exactly should be done, as answering that question would 

require extensive investigation into the logistics and arguments over how to 

conduct trials and sentencing. Several possibilities exist in terms of punishment 

options which ought to be investigated. As a starting point, community service or 

a conditional sentence would seem to be appropriate possibilities which both 

recognize the culpability of the offender with respect to his pre-NCR conduct, yet 

are not so onerous or restrictive of liberty so as to undermine the intended and 

proper exculpatory effects of the NCR defence with respect to the accused’s NCR 

conduct. Rather than simply forgetting about the culpability of recklessly or 

intentionally discontinuing medication, the wrongful conduct of the offender is 

recognized and the punishment is tailored to suit the level of culpability. 

Someone who failed to inhibit a psychotic episode because he discontinued 

medication that made him feel unpleasantly lethargic should be convicted of 

criminal negligence if he thereby seriously injured or killed someone; however, 

124 

Ibid s 718.2(e).


when it comes to sentencing, he should not be regarded as having coldly and 

purposefully engaged in dangerous conduct. His culpability is less, and so too 

should his punishment be less. On the other hand, where the accused had wilfully 

and belligerently refused to comply with his medication regimen, had an 

improper purpose for doing so (if he hoped that his instability would spur him to 

commit a crime), or if he is a repeat offender in these circumstances, then it seems 

that prison time for criminal negligence, even in excess of time spent in a 

psychiatric institution, would be a warranted punishment in light of the obvious 

and severe pre-NCR culpability. 

VIII. 

CONCLUSION 

From both a legal and philosophical point of view, it seems that there is good 

reason in principle to sanction mentally disordered persons where, while in a 

stable state, they recklessly exacerbate their own mental disorder and injure or kill 

others in the process. A historical accounting of “insanity” defences as well as 

current statute and case law on the subject indicates that the NCR defence is 

meant to be localized to the time frame when one is in the throes of his mental 

disorder, and does not include the period of stability in which he decides to go off 

of his medication. The elements of the charge of criminal negligence are made 

out, as foreseeability of harm resulting from discontinuing the medication 

regimen both establishes a duty of care, originating either from the common law 

of torts or from the codified offence of common nuisance. The breach of such 

duties, in light of foresight of the consequences, represents a marked departure 

from the normal conduct of the reasonable person, and thus one may be 

criminally negligent where he injures or kills another as a result of his earlier 

reckless omission. 

A significant question remains insofar as what the appropriate punishment of 

such offenders should be. Naturally, the punishment should vary accordingly with 

culpability, which may be minor if the accused was heavily influenced by the side 

effects of his medication or major if the accused was capricious or wilful in his 

neglect. 

One might call into question the true utility and necessity of punishing those 

with mental disorders who, when they are in control, act recklessly in respect of 

them, might be called into question. It must be remembered, however, that the 

integrity of the NCR defence is best served by denouncing recklessness 

concerning abatement of mental disorders. The NCR defence is not an automatic 

blanket defence for anyone with a mental disorder, and those with mental 

disorders do not receive immunity from the law in all other respects. It is 

important that the fostering of perceptions to the contrary be avoided, and one 

way to do this is to hold people with mental disorders responsible for recklessness 

perpetrated while they were in their stable state. Being that, in this stable state,


people with mental disorders may not appeal to the NCR defence, and thus the 

mens rea of any crime they commit during this period is as unblemished as it 

would be for anyone else, then it makes sense to hold them accountable for 

crimes committed in this state, including criminal negligence. Arguably, failing to 

abate one’s own mental disorder when the consequences of doing so are 

potentially dire and known to the individual, constitutes criminal negligence if 

death or injury results. Even though the NCR defence is available to an accused 

who exacerbates or fails to abate his own mental disorder, it should not function 

to retroactively exculpate him for his conduct before he would be considered 

NCR.

Legal Research in Canada’s Provincial Appellate 

Courts 

M E L A N I E R . B U E C K E R T * 

I. 

INTRODUCTION 

V 

ery little has been written about the legal research staff employed by 

Canada’s provincial appellate courts. While there have been a few articles 

addressing the Supreme Court of Canada’s clerkship program, 1 very few 

essays exist on the subject of the research practices of the highest courts in 

Canada’s provinces. 2 While our neighbours to the south have endured the 

publication of several tell-all exposés published by or with the assistance of former 

Supreme Court clerks, 3 former clerks are regularly sought out for reminiscences 

* 

1 

2 

3 

Ms. Bueckert graduated as the gold medalist from the University of Manitoba’s Faculty of Law in 

2003 and received her call to the Manitoba Bar in 2004. She returned to the law school to earn 

her Master’s degree in 2008. She is Legal Research Counsel with the Manitoba Court of Appeal 

and a sessional lecturer with the Faculty of Law. The opinions expressed in this paper do not 

necessarily reflect those of her employer. 

See e.g. Brian Crane, “Law Clerks for Canadian Judges” (1966) 9 Can Bar J 373; Michael John 

Herman, “Law Clerking at the Supreme Court of Canada” (1975) 13 Osgoode Hall LJ 279; 

Mitchell McInnes, Janet Bolton & Natalie Derzko, “Clerking at the Supreme Court of Canada” 

(1994) 33 Alta L Rev 58; Julie Dagenais Blackburn et al, “Le programme de clercs à la Cour 

suprême du Canada” (1995) 36 C de D 763; Lorne Sossin, “The Sounds of Silence: Law Clerks, 

Policy Making and the Supreme Court of Canada” (1996) 30 UBC L Rev 279. The Supreme 

Court’s clerkship program commenced in 1967 and continues to this day. As indicated by its 

title, this article does not address the approaches to legal research taken by the territorial courts, 

federal courts or the Supreme Court, nor does it address the legal research challenges faced by 

lower courts across Canada. 

There are a few articles encouraging students to consider clerkships as a mechanism for fulfilling 

their articling requirements (see e.g. Helen Burnett, “An Insider's View” (2008) 3 Can Law 4 

Stud 23). Aside from these promotional pieces, most of the existing literature relates to the 

Quebec Court of Appeal (see e.g. Louise Vadnais, “Le juge d’appel et son recherchiste” (2004) 34 

J Barreau; Shaun Finn & Benedicte Martin, “A Passionate Appeal”, online: Quebec Court of 

Appeal ). 

Such as Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (1979) and 

Edward Lazarus’ Closed Chambers: The First Eyewitness Account of the Epic Struggles inside the Supreme 

Court (1998). More recent books regarding the Supreme Court’s clerks include Todd C Peppers, 

Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford: 

Stanford University Press, 2006) and Artemus Ward & David L Weiden, Sorcerers’ Apprentices: 

100 Years of Law Clerks at the United States Supreme Court (New York: New York University Press,


about their clerkship experience and the judges they have clerked for 4 or their 

views on various legal matters. 5 While by no means an American-style exposé, the 

modest aim of this article is demystification. It is hoped that the information it 

contains will signal the start of increased transparency and greater dialogue within 

the legal profession on this important but often overlooked topic. 

II. 

INDEPENDENT JUDICIAL RESEARCH 

A preliminary matter to be considered when discussing legal research in the 

courts is the extent to which judges are permitted to conduct their own 

independent research, apart from the materials provided by the parties in the case 

at bar. While there may be a few individuals who would argue that judges should 

not conduct any independent research, and should confine themselves to the 

materials provided, I would suggest that most accept that judges are permitted to 

conduct their own legal research. It is no secret that judges often confer amongst 

themselves about the cases before their courts. I would characterize this as a form 

of judicial legal research. 

The more contentious point relates to the role of independent judicial legal 

research post-hearing; that is, whether or not, after finding a pertinent authority, 

judges are required to bring it to counsel’s attention and invite further 

submissions in light of it. Some feel counsel should be alerted and permitted to 

submit further argument, or that another hearing should be held. Others say 

counsel had their opportunity; if they missed something, it is permissible for the 

judge to find it and rely on it without bringing it to counsel’s attention. A more 

moderate position would be that the court is permitted to rely on extra authorities 

related to points raised by counsel, but if a new line of legal reasoning is 

uncovered, relating to an area of law not addressed by the parties, the court 

should advise counsel before proceeding. 6 

There are certainly older cases which refer to judges conducting their own 

legal research, but there is not a great deal of case law directly on point. 7 While 

some Canadian courts have made it quite clear that such research is permissible, 

4 

5 

6 

7 

2006). Judges of the United States Supreme Court have employed law clerks since 1882: Justice 

William H Erickson, “Why an Oath for Law Clerks” (1975) 14 Judges J 20. 

For an early example, see Alfred McCormack’s “A Law Clerk's Recollections” (1946) 46 Colum L 

Rev 710. More recently, see e.g. James S Whitehead, “Memories of a Stevens Clerkship” (2010) 

24 CBA Rec 43; Robert Klonoff, “Memories of a Law Clerk” (2010) 47 Hous L Rev 573. 

See e.g. Rachel Clark Hughey, “Effective Appellate Advocacy before the Federal Circuit: A 

Former Law Clerk’s Perspective” (2010) 11 J App Pr & Pro 401; Owen Glist, “The Scales of 

Justice: Former Clerks Weigh in” (2011) 79 Fordham L Rev 1503. 

This has been the general rule followed by the Manitoba Court of Appeal in recent years. 

See e.g. Brassard v Langevin (1877), 1 SCR 145, 1877 CarswellQue 6 (WL Can), George N Morang 

& Co v Publishers' Syndicate, Ltd. (1900), 32 OR 393, [1900] OJ no 142 (available on QL) and R v 

Mulvihill, [1914] BCJ no 29 (available on QL) (CA).

Legal Research in Canada’s Provincial Appellate Courts 183 

others seem less inclined to that view. The Alberta Court of Appeal has stated 

quite strongly that once the hearing has been held, a judge has no duty to consult 

counsel for their comments if the judge’s own research turns up relevant case 

law. 8 The Ontario Court of Appeal has also confirmed that “There is, of course, 

nothing wrong in a trial judge seeking assistance on the law wherever he can find 

it”. 9 The Newfoundland and Labrador cases of R v Cluett 10 and Atlantic Auto Inc v 

Furey 11 are to similar effect. However, in the earlier trial-level decision of R v 

Barlow, Meldrum J held that a judge may conduct independent legal research, but 

if he or she finds an authority overlooked by counsel, the judge has a duty to offer 

each side an opportunity to be heard on the point before making a decision. 12 

Judges occasionally lament the lack of research assistance provided by counsel, 13 

or the difficult position into which they are placed in cases involving 

unrepresented litigants, 14 arguing that it is not their job to conduct all of the legal 

research necessary to decide the case. 

Oftentimes issues relating to independent judicial research overlap with the 

concept of judicial notice. It seems clear that the extent to which a judge may 

conduct their own research into facts is different, and much more limited, than 

the extent to which they may conduct their own legal research. The notion of 

judicial notice generally relates to extra-legal research, or research into facts – 

historical, sociological or otherwise. 15 On the other hand, judicial legal research is 

more closely tied to the concept of judicial knowledge 16 or research into ideas. 17 It 

is generally accepted that judges “may not – apart from what is allowed by the 

doctrine of judicial notice – have regard to materials which are not in evidence 

before him [or her]. Law reports, law texts, and legal journals are the only 

exception.” 18 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

R v Rhyason, 2006 ABCA 367 at para 28, 397 AR 163. See also R v Doz (1985), 59 AR 185 at 

para 72, 19 CCC (3d) (CA). 

R v Rowbotham (1988), 25 OAC 321 at para 116, 41 CCC (2d) 1 (CA). 

(2002), 217 Nfld & PEIR 87 at para 52, 651 APR 87 (TD). 

2011 NLTD 1 at para 34, 2011 CarswellNfld 3 (WL Can) (G). 

(1984), 57 NBR (2d) 311, 148 APR 311 (TD). 

See e.g. R v CLS., 2009 MBQB 103 at para 40, 2009 CarswellMan 165 (WL Can). 

See e.g. Simpson v Trowsdale, 2007 PESCTD 3 at paras 14-15, 264 Nfld & PEIR 1. 

The Supreme Court had occasion to address the concept of judicial notice in the case of R v 

Spence, 2005 SCC 71, [2005] 3 SCR 458. See also Justice Binnie’s article, “Judicial Notice: How 

Much is too Much” (2003) Spec Lect LSUC, Montana Band v Canada, [1994] 3 CNLR 44, [1994] 

1 FC 425 (TD), R v Hamilton (2004), 72 OR (3d) 1, 241 DLR (4 th ) 490 (CA) and Works v Holt, 

[1976] OJ no 192 (available on QL), 22 RFL 1 (CA). With respect to historical facts, see 

Canadian Union of Public Employees v Hachey, 2011 NBCA 41, 2011 CarswellNB 41, and R v Paul 

(1998), 196 NBR (2d) 292, 158 DLR (4 th ) 231 (CA). 

R v Sioui, [1990] 1 SCR 1025 at 1050, 70 DLR (4 th ) 427. 

R v Bartleman (1984), 13 CCC (3d) 488 at para 13, 12 DLR (4 th ) 73 (BCCA). 

C v Saskatchewan (1984), 37 Sask R 23, 43 RFL (2d) 334 (QB) at para 3.


III. 

THE NEED FOR LEGAL RESEARCH SUPPORT IN CANADA’S 

PROVINCIAL APPELLATE COURTS 

Before launching into a detailed discussion about how legal research support 

is provided in Canada’s provincial appellate courts, it seems logical to address the 

preliminary question of whether it is appropriate to provide any such legal 

research support. 19 While I certainly cannot claim to be unbiased in the matter, I 

offer three reasons (besides my own job security) why I believe legal research 

support is necessary in Canada’s provincial appellate courts: (a) unrepresented 

litigants; (b) practical limitations on counsel; and (c) the growing complexity of 

the law and, as a result, legal research. 

A. 

Unrepresented Litigants 

A primary reason why judges need legal research support within the courts is 

that the necessary research is not being completed by counsel to the parties, as 

many litigants are self-represented. While self-represented litigants may have a 

clear grasp of the facts of their cases, they are likely not trained in the art of legal 

research and therefore cannot be expected to complete the level of legal research 

required in order for the court to resolve their disputes. Even where one party to a 

dispute is represented, additional legal research is often required in order to 

ensure that no legal arguments favourable to the self-represented litigant have 

been overlooked. 

B. 

Practical Limitations on Counsel 

Even where all parties are represented by counsel, there are practical 

limitations on the legal research that counsel can complete. It is well known that 

litigation is becoming increasingly expensive; one way to reduce litigation costs is 

to spend less time and money on legal research. As well, even if counsel were 

willing and able to conduct extensive research, court rules generally limit the 

length of facta that counsel are permitted to file. 20 While courts will often permit 

19 

20 

Of course, it could be argued that the government should not be required to provide funding for 

additional legal research; the parties should be content to rely on the research conducted by 

themselves or their counsel and bound by the result, as part of our adversarial system. However, 

as the courts become more involved in policy-making and as judgments are more widely 

distributed (without first being scrutinized by a seasoned law report editor), the fact that such 

judgments become precedents and may affect the course of the law’s future development 

militate, in my mind, in favour of providing such funding. 

For example, in Manitoba, Rule 29(3) provides that judges may reject facta “on the grounds of 

excessive length and may give directions regarding the maximum length” (Court of Appeal Rules, 

Man Reg 555/88). The Court has released a guideline indicating that “Any factum exceeding 30 

pages is subject to review” (Court of Appeal Practice Guidelines (July 2003), online: Manitoba Court 

of Appeal, at §3.5).


lengthier facta in complex cases, it is unlikely that counsel will be able to fully 

research all of the legal issues raised in a given case and present their findings to 

the court by way of written submissions. 

C. 

The Law and Legal Research are Becoming More Complex 

As the law evolves, changes and grows, the resources available to find, analyze 

and critique it become more and more voluminous. As a result, research becomes 

more time-consuming. 21 In conjunction with the costs associated with legal 

research, both in terms of accessing proprietary content and the cost of paying 

lawyers to conduct legal research, the growth of the law and the manner in which 

it is recorded and evaluated makes it more difficult for counsel to adequately 

research their cases. As a result, judges require “in-house” legal research support in 

order to competently adjudicate the disputes brought before them. 

A corollary to this point is that judges themselves cannot be expected to be 

completely familiar with all aspects of this growing and changing body of law. 

Especially where judges did not practice in a specialized or highly technical area, 

when they are faced with a complex case involving an area of law in which they 

have no practical experience, they may require additional research support beyond 

that provided by the parties or their counsel. 

IV. 

TYPES OF LEGAL RESEARCH SUPPORT 

From my review of the current approaches to legal research in Canada’s 

provincial appellate courts, it would appear that there are three main types of legal 

research support needed in those courts: (a) procedural; (b) pre-hearing; and (c) 

post-hearing. 

A. 

Procedural 

Procedural legal research support could perhaps be characterized as a form of 

pre-hearing research. It might involve advising specific parties about the 

appropriate manner in which their appeals should be prosecuted, in terms of the 

filing deadlines and necessary materials, as well as rules of service and any 

alternative dispute resolution measures, such as mediation or judicially-assisted 

dispute resolution (perhaps in the nature of case or pre-appeal conferences). This 

type of research could also relate to the court’s jurisdiction to hear certain 

matters, or the appropriate manner of proceeding in specific types of disputes. 

21 

There is a broader issue here regarding legal research generally: whether it is a practice area (or a 

potential area of specialization) in its own right or whether it is simply something all lawyers are 

capable of doing competently. While my views on the subject might already be apparent, a 

lengthy discussion of that debate is beyond the scope of this article.


B. 

Pre-hearing 

Pre-hearing research makes appeal hearings run more smoothly. This type of 

research generally involves a review of the file, including all of the materials 

submitted by the parties on the appeal, and summarizing them for easy reference 

during and after the hearing. It is generally meant to focus the panel on the key 

issues and remind them of the leading authorities, perhaps suggesting questions 

to be asked of counsel during the hearing. It may even lead to a preliminary 

disposition or at least an opinion on the merits of the matter. 

C. 

Post-hearing 

Post-hearing research generally has less to do with the materials filed by the 

parties and more to do with unanswered questions remaining after the judges 

have reviewed all of those materials and conducted the appellate hearing. Posthearing 

research can be as simple as confirming or updating the law presented by 

the parties, or may involve more in-depth research into points grazed by the 

parties or overlooked altogether. While post-hearing research does not always lead 

to a specific conclusion, oftentimes researchers conducting in-depth post-hearing 

research will provide their opinion on the merits of the case to the panel. In some 

courts, post-hearing research may even extend to drafting the court’s decision. 

V. 

POTENTIAL APPROACHES 

There are a number of methods for fulfilling the legal research needs of an 

appellate court. 22 The court can hire research lawyers on either a full-time or parttime 

basis. Alternatively, especially for extraordinarily complex or lengthy cases, 

lawyers can be hired on a contract basis. A popular method for providing legal 

research support to judges is through an articling-like clerkship program (which 

may or may not fulfil provincial articling requirements, either in full or in part). 

Perhaps the most robust approach to legal research in appellate courts involves 

some combination of these approaches, with more senior lawyers supervising a 

team of junior clerks. Of course, there is always the option of not providing any 

legal research support and requiring judges to conduct their own research or rely 

on the materials provided by the parties. 23 

22 

23 

While this article focuses on the use of lawyers or law students to provide legal research support 

to judges, it may be possible to address a court’s legal research needs by increasing its 

complement of judges or providing more extensive legal research training and resources to its 

existing members. 

Canada’s constitution places provincial appellate courts in a rather difficult position in this 

regard. While the judges themselves are under federal jurisdiction (Constitution Act, 1867 (UK), 

30 & 31 Vict, c 3, Part VII), all other court resources (from the courthouse to administrative 

assistants to legal research staff) are the responsibility of the provincial governments (Constitution


A. 

Staff Lawyers 

A complement of staff lawyers can become a repository for a great deal of 

institutional knowledge. Over time, they build up significant experience in the 

matters that routinely come before the court. However, their salaries are generally 

more expensive than the cost of articling students, and there is the potential for 

stagnation, if no new researchers are hired for some time and continuing 

professional development is not encouraged. Generally, staff lawyers are more 

post-hearing focused, though they may also assist with procedural and pre-hearing 

research. 

B. 

Hiring Lawyers on Contract Basis 

Lawyers hired to assist the court on a contract basis are generally more 

experienced than articling students employed in a court clerkship program. 

However, like an articling program, there is more turn-over than with staff lawyers 

and thus less institutional knowledge. Lawyers hired on a contract basis can be 

most useful for assisting with extraordinarily long or complex matters or other 

major court projects. Of course, short-term contracts can provide more budgetary, 

human resources and workflow flexibility than a contingent of permanent staff 

lawyers. 

C. 

Clerkship Programs 

Given that a court’s clerkship program is normally intended to act as an 

articling or training program for recent law school graduates, they are usually 

limited to a one year term. While this high turn-over rate maximizes the 

opportunities available for students to clerk, it also means more time is spent on 

training than with permanent staff. Students come away from the program with a 

unique experience and may bring new research techniques or practices to the 

court. However, as they are less experienced, they are usually not tasked with 

complex research matters, but instead focus on providing judges with pre-hearing 

research assistance. Given that the clerkship is intended to be a learning 

experience, judges also usually strive to acquaint their clerks with all aspects of the 

appellate process, both pre-hearing and post-hearing. For this reason, clerks may 

often be seen sitting in on appeal hearings. 

D. 

Combination of Staff Lawyers and Clerks 

In my opinion, a hybrid program involving a combination of staff or contract 

lawyers and recently graduated clerks represents the best of both worlds. While it 

is more expensive than a standalone clerkship program, it removes responsibility 

Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(14)). This may have ramifications with respect to judicial 

independence.


for supervising the clerks from the judges. While clerks can be tasked with prehearing 

research to assist the judges, staff lawyers can tackle complex post-hearing 

research. 

E. 

No Research Support 

In courts without any form of legal research support, the legal research 

burden rests solely on the judges, particularly in cases involving unrepresented 

litigants. While there are research resources specifically designed for judges, 24 

judges in courts without any legal research support may need to rely more heavily 

on their judicial colleagues and on library staff when faced with thorny legal 

research problems. 

VI. 

CROSS-CANADA SURVEY 

Ironically, it does not appear that a great deal of research has previously been 

conducted with respect to the approaches to legal research in Canada’s provincial 

appellate courts. An article published in 1975 lamented the “paltry” number of 

clerking positions then available in Canada. It noted that, at that time, the 

Ontario Court of Appeal employed four clerks, the British Columbia Court of 

Appeal employed three, the Quebec Court of Appeal employed two and the 

Alberta Court of Appeal had only one. 25 As noted in the introduction, there have 

not been many other articles published on the subject. 26 

In preparing this article, I contacted my counterparts in Canada’s provincial 

appellate courts to determine the manner in which legal research support was 

provided in their province. The results of this informal survey of the methods 

employed by appellate courts across Canada for fulfilling their research needs may 

be summarized as follows: 

24 

25 

26 

Such as those prepared by the National Judicial Institute. 

Herman, supra note 1 at 291. 

Supra note 2.


Province 

Number of 

Judges 27 

Total Number of 

Researchers 28 


Research 

Lawyers 


Student or 

Junior Law 

Clerks 29 

British Columbia 24 14.2 2.2 12 

Alberta 18 22 14 8 

Saskatchewan 11 3 0 3 

Manitoba 9 2 2 0 

Ontario 24 26 9 17 

Quebec 25 34 8 26 

New Brunswick 9 2 0 2 

Nova Scotia 8 3 0 3 

PEI 3 0 0 0 

Newfoundland & 

Labrador 

9 

2 (1 full-time + 2 

part-time) 

0.5 1.5 

The following is a West to East jurisdiction-by-jurisdiction summary of the 

approach to legal research support taken in Canada’s provincial appellate courts. 

A. British Columbia: Court Profile and Overview of Approach to 

Legal Research Support 

British Columbia’s Court of Appeal is currently composed of twenty-four 

judges, of which fifteen are full-time and nine are supernumerary. 30 The British 

Columbia Court of Appeal employs one full-time law officer, who is a senior 

lawyer. The law officer conducts legal research and supervises the Court’s twelve 

law clerks, who are articling students. The clerks are each assigned to one or two 

judges for a period of ten to twelve months. 31 The Court also currently employs a 

junior lawyer, who is a former law clerk, on a full-time basis to work on a major 

case presently before the Court. Another senior lawyer with a background in legal 

publishing proofreads and edits judgments two mornings (eight hours) a week. 

27 

28 

29 

30 

31 

Includes supernumerary judges. 

Includes both articling students and lawyers, but not university students. 

Does not include university students. 

Online: British Columbia Court of Appeal . 

More information about the Court’s clerkship program is available online: British Columbia 

Court of Appeal .


B. Alberta: Court Profile 32 and Overview of Approach to Legal 

Research Support 33 

The Alberta Court of Appeal consists of eighteen judges. Nine judges sit in 

Calgary, of which three are supernumerary. Another nine judges sit in Edmonton, 

of which two are supernumerary. There is currently a judicial appointment 

pending in Edmonton. 

The Alberta Court of Appeal employs twelve staff lawyers, six in each of its 

two locations. One of them is hired permanently, but the rest are hired on a 

contract basis. Most have at least five years of experience; many have been called 

to the Bar for more than ten years. The staff lawyers screen incoming cases, in 

order to determine which to assign to the Court’s eight articling students. Four 

students are employed in each location for a ten-month articling period. 34 They 

are primarily responsible for pre-hearing research and case preparation. The Court 

also employs two other lawyers, one in each location, as case management officers. 

These lawyers are primarily tasked with ensuring appeals are placed in the 

appropriate track and assessing limitation period issues on incoming appeals. 

They do legal research with respect to appeal processes and initial jurisdictional 

matters, but not on substantive issues for cases before the Court. 

The Court has also partnered with the University of Alberta to provide a 

program to third year law students where they can clerk with the court for school 

credit. This year, the Court also employed two summer students (one in each 

location) who had completed first or second year law school. 

C. Saskatchewan: Court Profile and Overview of Approach to 

Legal Research Support 35 

The Saskatchewan Court of Appeal consists of eleven judges, six of which are 

full-time and five of which are supernumerary. 36 The Saskatchewan Court of 

Appeal currently employs three articling students as law clerks, which are each 

assigned to three or four judges. The clerks are hired for a one year term, though 

the Rules of The Law Society of Saskatchewan require that a judicial clerk article for a 

32 

33 

34 

35 

36 

Online: Alberta Court of Appeal . 

The information in this section was gathered from an interview of Laurel Watson, Legal Counsel 

to the Alberta Court of Appeal (July 2011). 

More information about the Court’s articling program is available online: Alberta Court of 

Appeal 

. 

The information in this section was gathered from an interview of Marlene Rodie, Executive 

Officer to the Chief Justice of Saskatchewan and the Provincial Judicial Council (July 2011). 

Online: Saskatchewan Court of Appeal .


period of two months outside the Court with a qualified principal. 37 The Court 

Registrar is also a lawyer, responsible for special legal projects for the Court, but 

not for any research regarding specific cases before the Court. As such, the 

registrar is not included in the above comparison chart. 

D. Manitoba: Court Profile and Overview of Approach to Legal 

Research Support 

The Manitoba Court of Appeal is currently comprised of eight full-time 

judges and one supernumerary. 38 As described in greater detail below, the Court 

employs two staff research lawyers on a permanent, full-time basis. The Court has 

also partnered with the University of Manitoba to provide a clerkship program 

(presently for two students in each of the fall and winter semesters) that third year 

law students may undertake for academic credit. 

E. Ontario: Court Profile and Overview of Approach to Legal 

Research Support. 39 

The Ontario Court of Appeal is currently comprised of twenty-four judges, 40 

of whom twenty-two are full time and two are supernumerary 41 . The Court 

employs one senior legal officer, who is responsible for overseeing the Court’s 

other research lawyers. He also serves as the contact person for case management 

issues and as secretary of the Civil Rules Committee for the Court. In addition, 

the Court employs eight full-time legal research lawyers with at least five years’ 

experience. They review all cases once the appeals are perfected prior to their 

hearings. They flag exceptional cases, such as those involving major 

jurisprudential issues, a huge volume of trial materials or those that involve 

interesting issues not fully canvassed by counsel. They may also complete more indepth 

post-hearing research at the judges’ request. The Court is also assisted by 

seventeen articling students, who work directly with the judges to whom they are 

assigned. 42 The students are primarily tasked with preparing pre-hearing “bench 

memos”, that is, a one to three page summary of each case, outlining the facts, 

37 

38 

39 

40 

41 

42 

More information regarding the Court’s clerkship program is available online: Saskatchewan 

Court of Appeal . 

Online: Manitoba Court of Appeal . 

The information in this section was gathered from an interview of John Kromkamp, Senior Legal 

Officer of the Ontario Court of Appeal (July 2011). 

Online: Ontario Court of Appeal . 

Online: Ontario Court of Appeal < http://www.ontariocourts.on.ca/coa/en/> 

More information regarding the Court’s clerkship program is available online: Ontario Court of 

Appeal . The Ontario Court of 

Appeal is one of the few Canadian courts to post pictures of and contact information for their 

law clerks on their website.


issues and the parties’ positions. They may also complete additional post-hearing 

legal research at the judges’ request. 

F. Quebec: Court Profile and Overview of Approach to Legal 


The Quebec Court of Appeal currently consists of twenty-five judges, of 

whom twenty are full-time and four are supernumerary. 44 The Court employs 

twenty-six articling student law clerks, seventeen in Montreal and nine in Quebec 

City. 45 The clerkships are generally for a two-year term, though they may be 

extended for an additional year. The first six months of the clerkship program 

fulfill the province’s articling requirements. The clerkship may also be used to 

fulfill certain requirements for a Master’s degree from Laval University or the 

University of Montreal. Each clerk is assigned to a specific judge. The clerks 

undertake mostly pre-hearing research, though they also attend hearings and 

prepare memoranda for the judges, including their opinions on the merits of the 

cases. This clerkship program has been in operation since 1995. 46 

The clerks are overseen by a clerkship program coordinator, who is also a 

research lawyer. The clerkship program coordinator oversees the clerk selection 

process, organizes clerk training and provides research support to the clerks. The 

Court also employs seven other lawyers (five in Montreal and two in Quebec City) 

to assist with procedural matters. They provide information to lawyers and 

unrepresented litigants regarding court rules and procedure. They also prepare 

files for mediation and, to that end, prepare summaries of those cases. 

G. New Brunswick: Court Profile and Overview of Approach to 

Legal Research Support 47 

The New Brunswick Court of Appeal currently consists of nine judges, of 

whom six are full-time and three are supernumerary. 48 The Court is assisted by 

two articling student law clerks, one bilingual (French and English) and one 

Anglophone. 49 As with the courts in Alberta and Manitoba, the Court has 

43 

44 

45 

46 

47 

48 

49 

The information in this section was gathered from an interview of Pascal Pommier, Clerkship 

Program Coordinator and Legal Officer to the Chief Justice of Quebec (July 2011). 

Online: Quebec Court of Appeal . 

More information regarding the Court’s clerkship program may be found online: Quebec Court 

of Appeal . 

Finn & Martin, supra note 2 at 3. 

The information in this section was gathered from an interview of Dominique Harvey, Deputy 

Registrar of the New Brunswick Court of Appeal (July 2011). 

Online: New Brunswick Court of Appeal . 

More information regarding the Court’s clerkship program may be found online: New 

Brunswick Court of Appeal .


partnered with the University of New Brunswick to provide a judicial internship 

program for law students to clerk with the Court for credit. 50 As there are no fulltime 

research lawyers on staff, judges complete a lot of their own research. 

H. Nova Scotia: Court Profile and Overview of Approach to Legal 


The Nova Scotia Court of Appeal is currently comprised of eight judges. 52 

The Court’s legal research needs are addressed by three law clerks, who are either 

articling students or junior lawyers. 53 Like the courts in Alberta, Manitoba and 

New Brunswick, the Court has partnered with Dalhousie University to provide a 

program where law students clerk with the Court for academic credit. Two 

students usually participate in the program each term. 

I. Prince Edward Island: Court Profile and Overview of 

Approach to Legal Research Support 

The Prince Edward Island Supreme Court Appeal Division consists of three 

judges. 54 The judges of the Court complete their own legal research. 55 

J. Newfoundland & Labrador: Court Profile and Overview of 

Approach to Legal Research Support 56 

The Newfoundland and Labrador Court of Appeal is comprised of nine 

judges, of whom six are full-time and three are supernumerary. 57 The Court 

employs one permanent senior research lawyer on a part-time basis, along with 

one full-time and one part-time clerk. The clerks are junior lawyers who are hired 

on annual contracts for a maximum two year term. 

50 

51 

52 

53 

54 

55 

56 

57 

More information regarding this course is available online: New Brunswick Court of Appeal 

. 

The information in this section was gathered from an interview of Carol Moulaison, Judicial 

Assistant to Justice Beveridge (July 2011). 

Online: Nova Scotia Court of Appeal . 

More information regarding the Court’s clerkship program may be found online: Nova Scotia 

Court of Appeal . 

Online: Prince Edward Island Courts . 

This information was provided by the Supreme Court Appeal Division court office. 

The information in this section was gathered from an interview of André Clair, Law Clerk with 

the Newfoundland and Labrador Court of Appeal (July 2011). 

Online: Newfoundland and Labrador Court of Appeal .


K. 

Summary of Approaches Taken 

1. Staff Lawyers 

As described above, research lawyers are on staff on a permanent basis, either 

full-time or part-time, in British Columbia, Alberta, Manitoba, Ontario, Quebec 

and Newfoundland and Labrador. 

2. Contract Lawyers 

Research lawyers have been hired on a contract basis by the appellate courts 

in British Columbia and Alberta. Manitoba has also, in the past, hired legal 

research lawyers on a short-term basis through a secondment arrangement with 

the Federal Department of Justice. It is interesting to note that the only 

jurisdictions that appear to have taken advantage of hiring legal research lawyers 

on a contract basis are those who also employ full-time legal research lawyers. 

3. Clerkship Programs 

Clerkship programs for articling students or junior lawyers are in place in 

British Columbia, Alberta, Saskatchewan, Ontario, Quebec, New Brunswick, 

Nova Scotia and Newfoundland and Labrador. 58 As such, clerkship programs are 

clearly the frontrunner in terms of the approaches to legal research taken by 

Canadian provincial appellate courts. The program in Quebec is the only one that 

boasts a one-to-one ratio between students and judges, though the large program 

in Ontario comes close. The programs in British Columbia and Alberta provide 

closer to a two-to-one ratio between judges and students. As well, introductory 

clerkship opportunities are available to law school students in the courts in 

Alberta, Manitoba, New Brunswick and Nova Scotia. 

4. Hybrids 

The courts in British Columbia, Alberta, Ontario, Quebec and 

Newfoundland and Labrador have opted to fulfill their legal research support 

needs through a combination of lawyers and articling students. 

5. No Research Support 

Prince Edward Island’s Supreme Court Appeal Division is the only provincial 

appellate court without legal research support. However, this may be explained by 

the Court’s small size and, perhaps, because there is no law school on the Island. 

58 

Perhaps it would be simpler to say that only the courts in Manitoba and Prince Edward Island do 

not have an articling student clerkship program.


VII. 

A. 

CASE STUDY: MANITOBA 

Composition and Operation of the Court 

As noted above, the Manitoba Court of Appeal is currently comprised of 

eight full-time justices and one supernumerary. 59 In order to understand the role 

of its two permanent full-time legal research lawyers, it may be useful to briefly 

review the Court’s internal procedures regarding appeals. 60 Appeal materials are 

filed by the parties or their counsel with the court office, which is overseen by the 

Court’s Registrar. Each week, one judge is assigned the role of “duty judge”. If the 

Court is in session, that judge will also act as the Chambers judge for any 

necessary motions or other Chambers matters. The other main role of the duty 

judge is to prepare summaries of any new appeals perfected during their week. 

The judge will review the Notice of Appeal and facta and prepare a brief summary 

of the case, sometimes including an initial view of its merits. The judge also gives 

the case a ranking, from one to five, with one being a relatively straightforward 

appeal and five being extremely complex or time-consuming (such as where there 

is a large volume of transcripts or other evidence to review). This ranking is used 

for court scheduling purposes, and may be used to ensure that no judge is 

burdened with too many “fives” in a given week, or at least, back-to-back. 

However, it should be understood that the Court’s rota (that is, the schedule of 

which judges are assigned to which panels) is computer-generated. Except where 

changes need to be made to accommodate a judge’s holiday plans or to avoid a 

conflict of interest, this computerized assignment prevails, as it is programmed to 

assign all judges to an equal number of cases in a given term. 61 

As a general rule, the Manitoba Court of Appeal sits a panel of three judges 

for each appeal; however, the Court will sit a panel of five judges in extraordinary 

cases, particularly when they are being asked to overturn a prior decision of the 

Court. It is unusual for any pre-hearing research to be conducted, or for a staff 

researcher to sit in on Court hearings. 

After the appeal hearing has been held, the panel generally caucuses for a few 

minutes afterwards in order to discuss their initial impressions of the case. If there 

is unanimity, one judge volunteers to write the decision. However, if a member of 

the panel intends to dissent, they will obviously prepare their own reasons. It is at 

59 

60 

61 


Much of the following material has been the subject of various oral presentations by members of 

the Court. See e.g. Madam Justice Barbara Hamilton’s comments at “How to Avoid Rejection in 

the Court of Appeal: Current and Upcoming Rules and Practice Directions” (Presentation to the 

Manitoba Bar Association’s Civil Litigation Section, 2 June 2009) [unpublished]. See also Chief 

Justice Richard J Scott & Michael E. Rice’s paper from the 2006 Isaac Pitblado Lectures. 

With the exception of supernumerary judges, who are obviously assigned less cases, in 

accordance with their “part-time” status. As well, the Chief Justice is not generally assigned as 

many cases as the other members of the Court, in light of his many administrative duties.


this stage that one of the Court’s two staff research lawyers will be approached, if 

any research is required. Research is not requested in all cases, though the 

percentage of cases where research is required does appear to be increasing (at 

least anecdotally). The judge who will be writing the decision meets with the 

researcher to outline the research assignment. The matter is then placed on the 

research list and will be addressed in turn, unless some special factor (such as an 

appellant in custody) warrants moving it up to the top of the list. 

The senior research lawyer employed by the Court graduated from the 

University of Manitoba’s Faculty of Law in 1983 and has been on staff since 1990. 

As noted above, I am the Court’s second research lawyer; I graduated from the 

University of Manitoba’s Faculty of Law in 2003 and joined the Court in 2006. 

We are both practising members of the Law Society of Manitoba; both of our 

careers have been primarily focused on conducting legal research. We have offices 

down the hall from the judges in the Old Law Courts building. We have free 

access to a number of online database services, in addition to the resources 

housed in the Judges’ Library, the Great Library and the Attorney General’s 

Library across the street. We also frequently consult the Legislative Library and 

the E.K. Williams Library at the University of Manitoba’s Faculty of Law. 

While the complexity of the research assigned varies from case to case, by and 

large the research assignments are lengthy and extremely complex. As a result, 

they can sometimes take more than a month to complete. As stated above, most 

members of the Court are of the view that the Court is permitted to rely on 

additional authorities related to points raised by counsel, but if a new line of legal 

reasoning is uncovered by the research undertaken by their staff – relating to an 

area of law not addressed by the parties – the Court will advise counsel and seek 

further submissions before reaching its decision. 

Once the research memorandum has been prepared, it is circulated to all 

members of the Court. While portions of the memorandum might appear in the 

final judgment, it is extremely rare that members of the research staff would be 

asked to assist with decision drafting, though they may be asked to comment on a 

draft decision prior to its circulation amongst the Court. Once the decision is in 

final form, it is provided to the parties and case law publishers. 

B. The History of Legal Research Support in the Manitoba Court 

of Appeal 

The Court has not always had two full-time legal research lawyers at its 

disposal. While an exhaustive catalogue of the development and expansion of the 

Court and its research contingent is beyond the scope of this paper, 62 the 

62 

For more information about the history of Manitoba’s Court of Appeal, see Frederick Read, 

“Early History of the Manitoba Courts” (1937) 10 Man Bar N Nos 1 & 2 and Dale Brawn, The


following brief chronology illustrates the manner in which research has been 

conducted by the Court in the recent past. 

The earliest records I have been able to obtain regarding research staff at the 

Court pertain to an experimental articling program launched in 1982. 63 Five 

students were hired to serve both of Manitoba’s superior courts. It appears that 

they may also have participated in certain Legal Aid projects. 64 While both the 

students and the judges were highly complimentary of the program, 65 it was 

discontinued after a year when government funding was withdrawn. 66 

It would appear that, after a brief hiatus, the Court’s articling program was 

revamped in 1986. Two students were hired to complete a portion of their articles 

with the Court; the rest of their articling year was spent at private firms. However, 

one of the students left the province part-way through his articling year, so only 

one student actually articled with the Court in 1986, receiving his call to the Bar 

in 1987. The program was not part of the articling match, 67 and because of the 

logistical difficulties it presented, was perhaps not as popular as might have been 

expected. 68 

The program was expanded for 1987-1988, with four students being hired to 

complete a portion of their articles with the Court. 69 Two students articled with 

the Court in the fall of 1987 and two in the winter and spring of 1988. The Law 

Society extended the students’ articling period to accommodate the program and 

the manner in which the students’ articles were split between the Court and other 

law offices. The students recall conducting legal research, reviewing transcripts 

63 

64 

65 

66 

67 

68 

69 

Court of Queen’s Bench of Manitoba 1870-1950: A Biographical History (Toronto: Osgoode Society 

for Canadian Legal History, 2006). 

Law Society of Manitoba, Minutes of the Meeting of the Admissions and Education Committee 

(11 March 1982) [unpublished, archived at the Law Society of Manitoba]. I have heard rumours 

that at least one of the Court’s judges personally hired students to assist with research matters in 

the early 1980s, but I have not been able to locate any concrete information regarding this 

matter. 


(25 May 1982) [unpublished, archived at the Law Society of Manitoba]. 


(4 November 1982) [unpublished, archived at the Law Society of Manitoba]. 


(15 March 1983) [unpublished, archived at the Law Society of Manitoba]. In fact, the Court’s 

current senior legal research counsel was offered an articling position for 1983-1984, but was 

informed shortly before his articles were scheduled to commence that funding was no longer 

available, so the program would not be offered. 

The mandatory articling student hiring process utilized at that time. 

The information in the foregoing paragraph was obtained from a telephone interview of William 

Emslie (29 July 2011). 

Once again, the program was not formally part of the articling match process, though the Hon. 

Mr. Justice Huband (now retired) attended the “mass interviews”. As no interviews had been 

scheduled in advance, students simply dropped by with their résumés and went through a brief 

interview.


and assisting with decision drafting. They were encouraged to sit in on appellate 

hearings and even attend some lower court trials. 70 

While the program worked well, the Court realized that its legal research 

support needs could be better met by a full-time legal research lawyer. In 1990, the 

government was persuaded to allocate funding for such a position, and the 

Court’s current senior legal research lawyer was hired. In 1991, his three year 

contract was converted to a permanent position. In the mid-1990s, a second legal 

research lawyer was hired. A third research lawyer was seconded from the Federal 

Department of Justice on a contract basis in 2009 for just over a year. 71 

As noted above, the Court has also cultivated a relationship with the 

University of Manitoba’s Faculty of Law through the latter’s clerkship course for 

third year law students. The program commenced in January 2004 with two 

students. Two clerks participated in the program in 2005, 2006 and 2007. The 

course then moved to the fall term, with two more students entering the program 

in the fall of 2007 and two more in 2008. In 2009-2010, two students were hired 

for each of the fall and winter terms. The clerkship program was suspended for 

the 2010-2011 school year, but will be offered again in the fall of 2011, with 

openings for two students in each semester. 72 The student clerks are assigned to sit 

in on several cases. They meet with a judge from the panel before each hearing, 

review the materials and sit in on the hearing. They meet with the judge after the 

hearing and may be assigned some research in connection with the file. Any 

research conducted by the students is overseen by the staff research lawyers. 

C. 

Current Situation 

As set out in detail above, the Court currently employs two full-time research 

lawyers. While some small research projects are completed by third year students 

through the University’s clerkship course, the vast bulk of the Court’s research 

needs must be met by their two full-time staff lawyers. At present, the Court’s staff 

lawyers cannot keep up with the Court’s research demands. As a result, research 

takes longer to complete and decisions are therefore delayed. In recent years, the 

Court has found itself in breach of the Canadian Judicial Council’s guidelines for 

the timeliness of decisions more and more frequently. 73 As the Manitoba Court of 

70 

71 

72 

73 

The information in the foregoing paragraph was gleaned from interviews and correspondence 

with the Hon. Charles Huband, John Stefaniuk, Herbert Rempel and Lesley Tough (July 2011). 

One student recalled that another student was hired to article with the Court in the fall of 1988, 

but I have been unable to confirm that recollection. 

The information in the foregoing paragraph was obtained from interviews and correspondence 

with the Hon. Charles Huband and Michael Rice (July 2011). 

The information in the foregoing paragraph was obtained from an interview of the Hon. Madam 

Justice Steel (July 2011). 

The Canadian Judicial Council passed a resolution in September 1985 stating that judgments 

should be delivered within six months after hearings, except in special circumstances: “Ethical 

Principles for Judges”, online: Canadian Judicial Council


Appeal is the court of last resort for almost all of the cases heard by Manitoba 

courts, 74 “getting it right” aided by adequate research is extremely important. 

Furthermore, given the legal research support available to other provincial 

appellate courts across the country, as well as the Supreme Court of Canada, the 

Court has an obligation to release decisions that meet or exceed the current 

expectations regarding research thoroughness for decisions from the provinces’ 

highest courts. 

D. The Future of Legal Research Support in the Manitoba Court 

of Appeal 

Given the current research backlog and the trend toward more difficult and 

therefore lengthy research assignments, it is hoped that additional government 

funding will be provided for at least one, if not two, additional full-time staff 

research lawyers. This would bring the Court’s research complement closer to a 

one-to-two lawyer-to-judge ratio. However, if funding at this level is not available, 

in my opinion the next best solution would be a move to a hybrid system 

involving staff research lawyers and an articling student clerkship program. 

Manitoba’s law students do not currently have an opportunity to complete their 

articles by clerking with a Manitoba court. 75 As such, many of our province’s best 

and brightest students seek clerkships in other provinces, or at the federal courts 

or Supreme Court in Ottawa. 

If a clerkship program were implemented, a system of pre-hearing research 

conducted by articling students could be implemented (perhaps similar to the one 

used in Ontario), in order to streamline the appeal process and make appeal 

hearings more efficient. In fact, such rigorous pre-hearing research could decrease 

the number of post-hearing research projects assigned to staff lawyers. Articling 

students could also address the relatively simple research questions that arise from 

time to time, and provide other administrative support to the Court’s judges. 

Regardless of the approach adopted, it is my opinion that additional legal research 

support resources need to be made available to the Court in order to allow it to 

consistently meet the CJC’s guidelines for the release of timely decisions. 

At present, it does not appear that any procedural legal research support is 

required in Manitoba, though having a legally trained court officer available to 

assist with certain applications for leave to appeal from administrative tribunals 

74 

75 

general/news_pub_judicialconduct_Principles_1998_en.pdf> at 21. 

In 2010, the Court issued approximately 115 judgments, of which approximately 30 were 

Chambers decisions issued by a single judge. In 2010, nine applications for leave to appeal were 

filed with the Supreme Court relating to decisions made by the Manitoba Court of Appeal. Only 

three applications for leave were granted, and only two Manitoba appeals were heard by the 

Supreme Court in 2010. 

Aside from a short secondment program currently in place in connection with Manitoba’s 

Provincial Court.


(which tend to be prosecuted by unrepresented litigants, such as residential 

tenancies matters) could potentially reduce the time spent by judges hearing such 

applications in Chambers. 

VIII. 

CONCLUSION 

As documented herein, all but one of Canada’s provincial appellate courts 

have hired staff to provide them with legal research support. While the majority of 

the courts rely on year-long clerkship programs involving articling students, some 

have hired full-time senior research lawyers to assist them in reviewing, refining 

and shaping Canadian law. As the courts of last resort for the vast majority of 

cases across the country, it is hoped that the disclosure of the foregoing 

information regarding these courts’ approaches to legal research will bring the 

matter the attention it deserves. While counsel’s first reaction might be that 

additional research should not be conducted post-hearing, given the increasing 

number of self-represented litigants appearing before appellate courts, the issue is 

no longer whether post-hearing research should be conducted by judges but how 

that research is going to be conducted. With the help of qualified legal research 

specialists, our provinces’ highest courts can more efficiently and more effectively 

dispense justice. However, a lack of appropriate legal research support can result 

in decisions taking longer to write, causing lengthy delays between the hearing of 

an appeal and its disposition. For this reason, lawyers appearing before Canada’s 

provincial appellate courts would do well to understand the nature of the legal 

research support available to their court and the role it may play in the decisions 

rendered by that court. It is hoped that this article will pave the way for further 

discussions regarding the approaches adopted by Canada’s provincial appellate 

courts with respect to legal research and how those approaches may be refined or 

redesigned in the future.

Fraud and Knowledge of a Pre-Existing Security 

Interest under the Personal Property Security 

Act: Guidance from Other Jurisdictions for 

Manitoba Courts and Practitioners 

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

E D W A R D D . ( N E D ) B R O W N * * 

I. 

INTRODUCTION 

I 

n the context of secured transactions, can one take advantage of the mistake 

of another It is this question with which this article is concerned. This article 

arose out of a conversation between the authors in which both of us realized 

that insofar as either of us could find, there was no jurisprudence under the 

Manitoba Personal Property Security Act 1 to resolve this issue. Yet, two points were 

clear. The first was that this issue was important, both from the point of view of 

practitioners and their clients, and from the point of view of academics teaching 

the subject to students. Secondly, there is jurisprudence from other Western 

Canadian jurisdictions that could shed some light and help to fill this gap. 

This article begins by setting out some of the basic principles and policy 

rationales underlying the PPSA. Also, we refer to certain provisions of the PPSA 

which demonstrate these principles. As will become evident, these principles 

often come into conflict. Nonetheless, the Courts tend to resolve this conflict on 

a case-by-case basis, rather than laying down any hard-and fast rules about which 

principle must always give way to the other, which could potentially be exploited 

in the future by unscrupulous parties. 2 Finally, the authors will bring together 

some of the lessons that can be learned from these cases taken as a whole. 

* 

** 

1 

2 

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; Associate, 

Centre for Professional and Applied Ethics, University of Manitoba. 

Partner, Pitblado LLP, Winnipeg, Manitoba. 

CCSM, c P35 [the “PPSA”]. 

As was held by the British Columbia Court of Appeal in Gallen v Allstate Grain Co Ltd (1984), 9 

DLR (4th) 496 at p 510, 53 BCLR 38 (sub nom Gallen v Butterley), the rules of the common law 

were never meant to be used as tools to allow “the unscrupulous to dupe the unwary”. While the 

PPSA is statutory, as we will see below, there is an equivalent principle at play.


II. 

THE PROBLEM 

The issue to be resolved in this paper can be illustrated by the following 

hypothetical fact-scenario: we have a debtor, who wishes to borrow money. 

Creditor #1 is willing to do so, but only if the debtor offers security. 3 In return for 

the advance of the loan, Creditor #1 receives a security interest 4 in some or all of 

the personal property of the debtor. In order to perfect the security interest, 5 the 

Creditor #1 must register a financing statement in a public registry. 6 Creditor #1 

does so, but does so improperly, such that the registration is ineffective. 7 Creditor 

#2 comes along, having lent money to the debtor, and received a security interest 

in the same collateral 8 as Creditor #1. Creditor #2 is aware of Creditor #1’s 

security interest. However, Creditor #2 discovers that Creditor #1’s registration is 

invalid and proceeds to register a financing statement against the same collateral 

as Creditor #1. Should Creditor #2 rank ahead of Creditor #1 in a priority 

competition 9 with respect to the collateral 

3 

4 

5 

6 

7 

8 

9 

Security is a right given to the creditor to seize and sell pieces of the property belonging to the 

debtor to ensure repayment of the obligations of the debtor to the creditor. 

For those readers unfamiliar with the basics of secured transactions law, the authors suggest an 

examination of one or more of the following texts on the subject. See, for example, Ronald CC 

Cuming, Cathrine Walsh, and Roderick J Wood, The Essentials of Canadian Law – Personal 

Property Security Law (Toronto: Irwin Law, 2005) [Cuming, Walsh and Wood], Anthony J Duggan 

and Jacob S Ziegel, Secured Transactions in Personal Property and Suretyships : Cases, Text and 

Materials, 5th ed (Toronto: Emond Montgomery Publications Ltd, 2009), or Richard H. 

McLaren, Secured Transactions in Personal Property, 3d ed (Toronto: Carswell, looseleaf). 

A security interest includes an interest in the debtor’s personal property which is designed to 

secure the repayment of the loan. See the PPSA, supra note 1, s 1. Other interests are also 

included in the definition, but these are not particularly relevant for current purposes. 

To “perfect” a security interest is to take the best position a creditor is allowed by law to take 

with respect to the asset. In general, a perfected security interest ranks ahead of any security 

interest that is not perfected. See the PPSA, supra note 1, s 35. 

“Financing statement” is the publicly available document that is designed to tell all interested 

parties that a creditor (in this case, both Creditor #1 and Creditor #2) has taken a security 

interest in property of the debtor. 

In general, an ineffective registration is treated as no registration at all, because it will not 

provide effective notice to third parties, which is the point of the registration system. Also, in 

general, the first party to take the perfecting step (in this case, registration of a financing 

statement) will generally rank ahead of later registrants. See the PPSA, supra note 1, s 35(1). 

“Collateral” is the personal property of the debtor that is subject to the security interest. See 

PPSA, supra note 1, s 1. 

A priority competition is best explained as follows. As is implicit in the above recitation, a debtor 

may give security interests to two or more secured party creditors. Therefore, when there are two 

otherwise valid claims to a given piece or pieces of property, a priority competition arises. As one 

of the authors has explained elsewhere: “‘Priority’ is a term that describes the ranking of claims 

in a single piece of property. The easiest analogy is that of a line. A person who wins a priority 

competition will be in line ahead of the person who loses that competition. When the asset is 

sold to pay the various claimants to the asset, the value received on the sale will go to the winner 

of priority competition first. If there is residual value remaining in the asset following the

Fraud and Knowledge 203 

III. 

PRINCIPLES AND STATUTORY PROVISIONS 

As in many areas of the law, the short answer is “sometimes”. As 

unsatisfactory as such an answer may be (from the point of view that predictability 

of the outcomes of legal questions should be an important feature of our legal 

system), it is necessary to keep in mind several policy concerns and statutory rules 

and principles found in the PPSA: 

a) generally, the PPSA’s rules are intended to establish a regime where the 

resolution of the priority of competing security interests can be clearly 

and easily determined by the parties themselves. The more certainty that 

exists in the system as to such resolution, the fewer the barriers to the 

advance of credit, and the more smoothly that the credit market can 

operate; 10 

b) the rights, duties and obligations arising under a security agreement, 

under the PPSA or under any other applicable law shall be exercised or 

discharged in good faith and in a commercially reasonable manner; 11 and 

c) a person does not act in bad faith merely because the person acts with 

knowledge of the interest of some other person; 12 

d) the principles of common law, equity and the law merchant, except 

insofar as they are inconsistent with the provisions of the PPSA, 

supplement the PPSA and continue to apply. 13 

Given all this, should Creditor #2 end up with an unexpected benefit, advantage 

or windfall 

Clearly, the first and third of the above quoted “rules” would appear to allow 

Creditor #2 to keep an unexpected benefit where Creditor #2 knew of the 

existence of Creditor #1’s security interest and Creditor #2 took advantage of 

Creditor #1’s failure to register properly. If Creditor #2 knew enough to do the 

search and registration, it is also probable Creditor #2 knew that Creditor #2’s 

registration would rank ahead of Creditor #1’s interest, because Creditor #1 did 

not register properly. 

10 

11 

12 

13 

repayment in full of the obligation owed to the winner of the priority competition, then the 

person second “in line” would receive the residual value. The process would then repeat itself, 

until either: (i) the residual value of the asset is completely exhausted, or (ii) all creditors with a 

valid security interest in the asset were repaid in full. Therefore, simply because the creditor wins 

a priority competition does not mean that all value from the asset at issue will necessarily be 

given to that creditor alone. Each asset would be dealt with in this way.” See Darcy L. 

MacPherson, “Financial Leasing in Common Law Canada,” (2011) 16:1-2 Unif Law Rev 83. 

See, for example, Cuming, Walsh and Wood, supra note 3, at 7. As to certainty, see, for example, 

Sun Life Assurance Co of Canada v Royal Bank (1995), 10 PPSAC (2d) 246 at 251-252, 129 DLR 

(4th) 305 (Ont Gen Div) Winkler J, as he then was, and Strathcona Brewing Co v Eldee Investment 

Corp (1994), 17 Alta LR (3d) 405, 6 PPSAC (2d) 177 (Alta QB), Agrios J [Strathcona]. 

See the PPSA, supra note 1, s 65(3). 

See the PPSA, ibid, s 65(4). 

See the PPSA, ibid, s 65(2).


What, then, is sufficient to trigger the second and fourth principles referred 

to above First, it is clear that something more than mere knowledge on the part 

of Creditor #2 of the pre-existing, but unperfected, security interest held by 

Creditor #1 is required in order to place Creditor #2 behind Creditor #1. In 

essence, that “something more” must be comprised of either one or both of the 

following, as far as the Court is concerned: 

a) inequitable conduct on the part of Creditor #2; and 

b) bad faith on the part of Creditor #2. 

The application of these rules is illustrated in the cases referred to in the next 

section. 

IV. 

THE CASE LAW 

The four cases below will assist in illuminating these principles. These cases 

are dealt with in chronological order. In Part V, the authors will lay out the 

conclusions that they believe can be drawn from the totality of the cases. 

A. Carson Restaurants International Ltd v A-1 United Restaurant 

Supply Ltd 14 

In this case, the relationships between the various players are especially 

important. Therefore, our analysis begins with these relationships. The debtor is 

Yorkton Restaurant and Deli Ltd. (Yorkton). 15 Yorkton was controlled by a Mr. 

Dennis A. Skuter (Skuter). 16 Yorkton entered into a franchise agreement between 

Yorkton, as franchisee, and Carson Restaurants International Ltd. (Carson), as 

franchisor. 17 Skuter is the sole officer, director and shareholder of Carson. 18 In 

other words, the agreement was between associated corporations. Shonavan 

Holdings Inc., (Shonavan) was a third company controlled by Skuter. 19 The final 

person involved in this scenario is A-1 United Restaurant Supply Ltd (A-1). A-1 is 

unrelated to Skuter. 20 

The transactions that are immediately relevant to the resolution of the issues 

between the parties are as follows. In September 1986, Carson acquired a security 

interest in Yorkton’s present and after acquired personal property (as a result of 

the franchise agreement between them). 21 In April 1987, A-1 acquired a security 

14 

15 

16 

17 

18 

19 

20 

21 

[1989] 1 WWR 266, 8 PPSAC 276 (Sask QB), Grotsky J [Carson]. 

Ibid at 269. 

Ibid. 

Ibid. 

Ibid. 

Ibid at 270. 

Ibid. 

Ibid at 269.


interest from Yorkton covering goods provided by A-1 to Yorkton on credit. 22 By 

June 1987, Yorkton was in default on payment of its obligations owed to A-1. 23 A- 

1 demanded payment. Following that demand, there was a meeting between 

representatives of A-1 and Skuter. Mr. Skuter assured A-1’s representative that 

Yorkton would pay its debt to A-1. 24 

In July 1987, A-1 registered its security interest but made a serious error in 

recording Yorkton’s name in its registered financing statement. 25 On 1 October 

1987, Shonavan, in anticipation of selling certain equipment to Yorkton on credit 

and taking a security interest therein, obtained a PPR search of Yorkton’s correct 

name, which did not reveal A-1’s security interest which had been registered 

against Yorkton’s incorrect name. 26 On 26 October 1987, Carson registered its 

security interest against Yorkton Restaurant’s correct name, and, on the same day, 

Shonavan also registered its security interest against Yorkton’s correct name. 27 The 

following month, Skuter registered his own security interest against Yorkton’s 

correct name. On 20 January 1988, Yorkton Restaurant was in default with 

respect to its obligations owed to Carson. Therefore, Carson seized all of 

Yorkton’s assets. Finally, on 26 January 1988, A-1 amended its financing 

statement to show the correct the name of Yorkton. In the nomenclature referred 

to earlier, A-1 is Creditor #1, Yorkton is the debtor, and Skuter and the other 

corporations controlled by him are Creditor #2. 

Therefore, the priority competition arises between A-1, on the one hand, and 

Skuter and the other corporations controlled by him (the “Skuter Group”), on the 

other. The Court held that between A-1 and the Skuter Group, A-1 should 

prevail. The Court begins by citing the speech of Lord Westbury in McCormick v 

Grogan, holding as follows: 

The Court of Equity has, from a very early period, decided that even an Act of Parliament 

shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud 

an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside the Act 

22 

23 

24 

25 

26 

27 

Ibid at 270. 

Ibid. 

Ibid. 

Ibid. 

Ibid. With respect to serious misleading errors, see PPSA, supra note 1, s 43(6). The weight of 

authority indicates that if (i) a person enters incorrect information in a financing statement, and 

(ii) a search of the correct information would not show the relevant registration as a close or 

exact match, then it is “seriously misleading”. See Gold Key Pontiac Buick (1984) Ltd v 464750 BC 

Ltd (Trustee of) (2000), 2000 BCCA 435, 189 DLR (4th) 668; GMAC Leaseco Ltd v Moncton Motor 

Home & Sales Inc. (Trustee of); Stevenson v GMAC Leaseco Ltd (2003), 2003 NBCA 26, 227 DLR 

(4th) 154; Coates v General Motors Acceptance Corp. of Canada, [1999] 10 CBR (4th) 116, 14 

PPSAC (2d) 315 (BCSC) Grist J. Despite the weight of this authority, there are some cases that 

indicate that a computer system’s programming should not determine the validity of the 

registration. On this point, see Re Logan (1992) 15 CBR (3d) 121, [1993] 2 WWR 82 (BCSC) 

Tysoe J (as he then was). 

Carson, ibid.


of Parliament, but it fastens on the individual who gets a title under that Act, and imposes 

upon him a personal obligation, because he applies the Act as an instrument for 

accomplishing a fraud. In this way the Court of Equity has dealt with the Statute of Frauds, 

and in this manner, also, it deals with the Statute of Wills. 28 

The Court noted that fraud was not alleged against any member of the Skuter 

Group. 29 Nevertheless, the Court held that: 

...To permit Carson to take advantage of A-1 in the circumstances outlined would be to 

permit it, through Skuter, to use the Act as an instrument to defeat a claim of which he 

was not only aware, but which he deceitfully delayed by his representations to A-1 when it 

was pursuing its security interest against Yorkton Restaurant & Deli Ltd. on or about 18th 

June 1987. 30 

Accordingly, the priorities which would otherwise result from a strict 

application of the legislation should not be applied on the facts of this case, and 

should be overturned by the application of equitable principles. 

One of the interesting elements of this case is that the facts as spelled out in 

Justice Grotsky’s decision do not, in and of themselves, explicitly indicate that Mr. 

Skuter made deceitful representations to A-1 at the time of the 18 June 1987 

meeting. However, the emphasized words indicate that such deceitful 

representations were in fact made and that they were made by Mr. Skuter with the 

objective of inducing A-1 to not take the steps necessary to achieve PPSA priority 

for A-1’s security interest. 

B. 

Canadian Imperial Bank of Commerce v AK Construction 

(1998) Ltd 31 

In this case, CIBC and RoyNat both loaned money to two debtor 

corporations related to each other (collectively, the “Debtor”) for the purpose of 

enabling the Debtor to acquire certain heavy construction equipment. 32 The 

equipment was “serial numbered goods” 33 under the PPSA and its Regulations, 34 

28 

29 

30 

31 

32 

33 

(1869-70) LR 4 HL 82 at 97. 

Carson, supra note 14 at 276. 

Ibid [emphasis added]. 

(1995), 9 PPSAC (2d) 257, [1995] 8 WWR 120 (Alta QB), Veit J [CIBC]. This case was appealed 

to the Court of Appeal on an issue not relevant to the discussion. The appeal was dismissed. See 

Canadian Imperial Bank of Commerce v AK Construction (1988) Ltd (1998), 223 AR 115 (CA). 

CIBC, ibid at para 1. 

“Serial numbered goods” is a term used throughout the PPSA, supra note 1. On this point, see ss 

30(6), 35(4), 38(12), 43(7), 48(1), 59(6), 60(2), 61(2) and 72. However, the PPSA itself does not 

define the term. Instead, this is left to the regulations promulgated under the authority of the 

PPSA. On this point, see s 73(g)(iii) of the PPSA. The relevant regulation is the Personal Property 

Registry Regulation, Man Reg 80/2000 [the “Regulation”]. The Regulation provides (in s 1): 

“‘serial numbered goods’ means” (a) except where clause (b) applies, motor vehicles, trailers, 

mobile homes, aircraft, boats or outboard motors for boats, and (b) in relation to a registration 

that was made before the Act came into force, collateral referred to in clause (a) that, under the


but only CIBC properly registered its security interest against the serial numbers, 

RoyNat omitting to register against the serial numbers. 35 RoyNat had registered 

first (without serial numbers), and CIBC registered second (with serial numbers). 

In the nomenclature referred to earlier, RoyNat is Creditor #1, and CIBC is 

Creditor #2. 

The Debtor became insolvent, the equipment was sold and a contest arose 

between CIBC and RoyNat as to who was entitled to the proceeds of sale of the 

serial numbered equipment. Absent considerations of knowledge, fraud and bad 

faith, the parties agreed that CIBC would be first in line, due to its registration of 

the serial numbers. 36 

CIBC argued that it had done what it was supposed to do under the 

legislation and RoyNat had failed to do what it was supposed to do, with the 

result that CIBC should be entitled to the proceeds of sale, not RoyNat. 37 RoyNat 

argued that there was an underlying understanding between CIBC and RoyNat to 

the effect that RoyNat was to have a first charge on the Debtor’s equipment and 

CIBC was to have a first charge on the Debtor’s accounts receivable and 

inventory. There was at least one meeting between representatives of CIBC and 

RoyNat at which they discussed their respective security positions. 38 As the Court 

put it: 

In summary, “bad faith” for the purposes of the PPSA requires some form of positive 

action on the part of the party with the prior perfected security interest. Mere knowledge of 

the prior unperfected security interest that will be defeated by the registration is not 

sufficient. The required action is action that could constitute a waiver or support an 

estoppel argument or actively mislead or hinder the perfection of the prior interest. 39 

In other words, CIBC had the following knowledge with respect to its 

relationship with RoyNat, and their respective impacts on each other: 

a) of the existence of RoyNat’s security interest; and 

34 

35 

36 

37 

38 

39 

law in force immediately before the Act came into force, was, or was required to be, described in 

the area of the financing statement designated for motor vehicle description”. Many of the terms 

used in this definition (such as “aircraft”, “boat”, and “motor vehicle”) are also defined in s 1 of 

the Regulation. For current purposes, though, it is generally true to say that high-value, fungible, 

and highly mobile goods (such as cars, trucks and mobile equipment) are generally serial 

numbered goods for the purposes of the PPSA. In some cases, including on the facts of CIBC, 

the result of a priority competition may be affected by whether or not the secured party creditor 

has registered against the serial number in question. 

See the Regulation, ibid. 

CIBC, supra note 31, at para 20. 




Ibid at para 38.


b) if RoyNat had properly registered its security interest, it would have held 

priority over CIBC’s security interest, but RoyNat’s security interest had 

not been properly registered. 40 

However, this was not sufficient to constitute “bad faith”. The Court 

impliedly held that CIBC did not undertake to subordinate its security interest in 

favour of RoyNat (or treat RoyNat’s security interest as holding priority over 

CIBC’s security interest) so as to bar itself from relying on its (CIBC’s) rights 

under the legislation. The Court did so in following terms: 

As to the impact of the Readman affidavit, silence can sometimes be equivalent to 

agreement, but this is not one of those times. This was a meeting of persons who all had an 

interest in the A.K. companies but who were, in some senses, competitors with respect to 

the A.K. assets. One could not expect competitors to be fully open with one another in 

relation to their various positions. When Readman told the meeting what he thought of 

the security situation, this could be taken as a negotiating posture as much as anything 

else. 41 

For CIBC to have been subordinated to RoyNat, RoyNat would have had to 

have established something which would constitute a waiver or an estoppel 

argument, or would involve CIBC in some nefarious conduct, such as misleading 

RoyNat or hindering it in the perfection of its security interest. 42 No behaviour of 

this type could be attributed to CIBC on the facts of this case. Therefore, CIBC 

maintained priority. 

C. 

Strathcona Brewing Co v Eldee Investment Corp 43 

In this case, the question was whether a creditor, Eldee, was entitled to 

amend its pleadings against two brewing companies. Another creditor, the 

Chappells, were opposed. Eldee had a registered security interest in property of 

the debtor. 44 Berman was the solicitor for Eldee. 45 Berman was the intermediary 

for the funds from Eldee to the brewing companies. The Chappells were 

subsequently asked to advance funds to the debtor. 46 The Chappells agreed with 

the debtor to do so, with the proviso that the security interest registered by Eldee 

be discharged. 47 Therefore, it is clear that the Chappells did not want their 

security interest in property of the debtor to rank behind that of Eldee. Once 

again, Berman was used as the intermediary. The Eldee security interest was 

40 

41 

42 

43 

44 

45 

46 

47 




Strathcona, supra note 10. 


Ibid. 

Ibid. 

Ibid.


discharged, 48 allegedly by Berman, and without the consent of Eldee. 49 

Technically, the Chappell security interest was registered following the discharge 

of the Eldee security interest. Eldee wanted the Court to treat the Eldee security 

interest as not having been discharged, and therefore, as effective and relevant to 

the priority competition. The Court declined to do so, for the following reasons: 

a) This would undermine certainty; 50 

b) To import actual notice into the PPSA would actually run counter to 

express provisions of the PPSA; 51 

c) There is nothing beyond mere knowledge to suggest bad faith on the 

part of the Chappells; 52 

d) Eldee had a chance, pursuant to the provisions of the PPSA, 53 to remedy 

the discharge, within a given period of time. Having not done so, it was 

not entitle to a remedy from the Court. 54 

Therefore, the Court relied on the first and third principles referred to earlier 

to hold in favour of the Chappells. Furthermore, Justice Agrios essentially held 

that the application of the principles of equity would actually run counter to the 

PPSA, rather than supplementing its provisions. 55 

D. Furmanek v Community Futures Development Corp of Howe 

Sound 56 

In this case, the vendor of shares in a business, the plaintiff, Furmanek, gave 

the purchaser time to pay for the shares purchased. Therefore, a security interest 

in the purchaser’s assets was granted to Furmanek, who then made a proper 

registration of this security interest 57 in the Personal Property Registry. 58 In 

addition to the security interest given to the vendor, the purchaser borrowed part 

of the purchase price from Community Futures Development Corporation of 

Howe Sound (“Development”). A security interest was granted to Development, 

which also registered its security interest 59 in the Personal Property Registry. 60 In 

48 

49 

50 

51 

52 

53 

54 

55 

56 

57 

58 

59 

60 

To “discharge” a security interest means to remove the financing statement from the Registry. 

Typically, this is done when the debtor’s obligation to the creditor is extinguished, or otherwise 

forgiven. 

Strathcona, supra note 10, at para 5. 




See the PPSA, supra note 1, s 35(7) 

Strathcona, supra note 10, at para 14. 


(1998) 162 DLR (4th) 501, [1998] BCJ No 1536 (BCCA) [Furmanek]. 

Ibid at para 2, citing the chambers judge. All paragraph references are per DLR. 

Ibid. 

Ibid. 

PPSA, supra note 1, s 42.


fact, Development registered prior to the plaintiff Furmanek, 61 but in so 

registering, Development erroneously omitted to refer to the purchaser’s 

inventory in its financing statement. 62 When the purchaser failed to pay what it 

owed, a priority contest arose between the vendor and Development as to the 

purchaser’s inventory. In other words, in this scenario, in accordance with the 

nomenclature used previously, Development was Creditor #1, Furmanek was 

Creditor #2, and the purchaser was the debtor. 

Furmanek (for obvious reasons) argued that the PPSA required that a secured 

party strictly comply with the applicable registration rules, failing which it should 

not be considered to have perfected its security interest, or, in other words, it 

should not be entitled to priority as against Furmanek’s proper registration. 63 The 

Court noted the following facts: 64 

a) Furmanek knew that without Development’s financing, the sale and 

purchase transaction would not have been completed; 

b) Furmanek was actively involved in the negotiations between the 

purchaser and Development leading to the provision of the 

Development financing, and represented to Development that the assets 

being acquired by the purchaser from Furmanek were “free and clear” 

and that accordingly, Development expected to obtain a first charge on 

the inventory; 

c) Furmanek knew that if Development did not obtain a first position on 

the purchaser’s inventory, Development would not provide financing; 

and 

d) in the sale and purchase agreement between Furmanek and the 

purchaser, the security interest granted by the purchaser back to 

Furmanek for part of the purchase and sale price was referred to as a 

“second mortgage”. 65 

The Court of Appeal held in favour of Development. On the facts, in the 

view of the authors, justice was done, as it would have been manifestly unfair to 

allow the vendor to take advantage of Development’s registration omission. 

However, it is exceptionally important to note that the Court based its decision 

on more than just what seemed fair or unfair. In particular, the Court held that: 

a) generally speaking, registration of a security interest with knowledge of a 

prior unregistered security interest will not of itself constitute bad faith 

or operate as an estoppel against the registering party 66 (affirming the 

third principle referred to above); 

61 

62 

63 

64 

65 

66 

Supra note 56, at para 2, citing the chambers judge. 

Ibid. 

Ibid para 6. 

Ibid para 12, citing the chambers judge. 


Ibid at para 12, citing the chambers judge.


b) however, the circumstances in the case went “beyond mere knowledge of 

the fact that [Development] was asserting a prior interest” 67 (meaning 

that the third principle did not apply); 

c) although the vendor did not expressly agree to subordinate its security 

interest in favour of Development’s security, the PPSA makes it clear 

that a secured party may subordinate its interest in ways other than 

inclusion of a subordination provision in a security agreement. 68 The 

statute provides that “Any secured party may, in a security agreement or 

otherwise, subordinate his or her security interest to any other 

interest…”; 69 

d) the Court of Appeal also held that Development could have priority over 

the vendor on the basis of an implied agreement or undertaking by the 

vendor to subordinate its security position to that of Development. In 

this regard, remember the above-noted factual holding that in the 

purchase and sale agreement, the vendor referred to its security interest 

as a “second mortgage”; 70 

e) On these facts, PPSA priorities may be determined by the application of 

equitable principles 71 (affirming the fourth principle referred to above); 

f) On the basis of equity, the Court imposes an obligation on the 

individual who is seeking to take what the Court believes to be an 

inequitable advantage against one or more others on the basis of the 

strict operation/application of the legislation, without invalidating the 

legislation in any way; 72 

g) The Court held that on the basis of the vendor’s unfair conduct, the 

vendor’s security interest in the purchaser’s inventory was equitably 

subordinated to Development’s interest. 73 It is implicit in the reasoning 

of the Court that if the vendor had not known of the prior security 

interest of Development (or had not induced Development to believe 

that Development would get a first priority position), the equities would 

not have favoured Development; and 

h) While the vendor’s knowledge and unfair conduct protected 

Development as against a claim by the vendor, the same would not have 

been true if an innocent third party was involved. 74 Thus, if the vendor 

had sold its debt claim and security interest to a bona fide assignee, that 

67 

68 

69 

70 

71 

72 

73 

74 

Ibid citing the trial judge. 


PPSA, supra note 1, s 40(1). The British Columbia equivalent is found in the Personal Property 

Security Act, RSBC 1996, c 359, s 40. 

Supra note 56, at para 15. 


Ibid. 

Ibid. 

Ibid at para 19.


V. 

assignee would almost certainly be entitled to hold priority over 

Development. 

LESSONS FOR THE BENCH AND BAR 

In the view of the authors, this case law offers several valuable lessons, both 

for the Manitoba courts that will eventually have to confront this issue, and for 

practitioners, for both the litigators who will be in courts dealing with these 

arguments, and for the solicitors who are asked to advise clients who find 

themselves in these types of circumstances. 

A. 

What are the key elements to distinguish Carson from CIBC 

In many senses, Carson 75 and CIBC 76 are quite similar. Both cases involve not 

only knowledge by Creditor #2 of the pre-existing security interest of Creditor #1, 

but also involve specific representations of Creditor #2 to Creditor #1 as the 

relative priority of the security interests of the two creditors. Despite these 

important similarities, the courts came to diametrically opposed results. In the 

view of the authors, these different results are in fact reconcilable. 

First, in CIBC, it was quite clear that the debtor was already experiencing 

financial difficulties, at the time that the meeting at which the representations of 

Creditor #2 were made. This would inevitably put any two creditors in a situation 

of jockeying for position, where an event of default 77 has either occurred, or is 

very likely to occur in the near future. Equity generally seeks to protect those who 

cannot protect themselves, rather than protecting those who could have protected 

themselves but chose not to do so. 78 Clearly, in CIBC, the Court was of the view 

that all RoyNat had to do was register its interest. In fact, the PPSA is specifically 

set up as a notice system. This means that a creditor need not only give notice to 

CIBC of its position, but also to all interested parties. Therefore, RoyNat could 

75 

76 

77 

78 



Events of default are typically defined by the agreement between the debtor and the creditor. 

These are typically events the occurrence of which entitles the creditor to realize on the security 

provided for in the agreement. To “realize on the security” is generally to seize the collateral, and 

sell it in attempt to recover amount owing to the creditors of the debtor. 

On this point, see, for example, International Corona Resources Ltd v Lac Minerals Ltd, [1989] 2 

SCR 574 at p 607, 61 DLR (4th) 14, Sopinka J, dissenting in the result, but not on this point; 

McIntyre J concurring, citing Hospital Products Ltd v United States Surgical Corp (1984), 55 ALR 

417, 156 CLR 41 (HCA); Weinberger v Kendrick (1892) 34 Fed Rules Serv (2d) 450 (NY Ct App); 

Barnes v Addy (1874) 9 Ch App 244 at 251, Lord Selborne, Lord Chancellor; Guerin v The Queen, 

[1984] 2 SCR 335 at 384, [1984] 6 WWR 481, and Ernest J Winrib, “The Fiduciary Obligation” 

(1975) 25 UTLJ 1. While some of the comments referred to in these sources are in the context of 

the fiduciary obligation, in the view of the authors, the basic point made herein also applies 

more generally to the use of equitable principles.


have (and implicitly, should have) protected itself. Competitors generally do not 

rely on the ambiguous assertion of their fellow competitors to protect their 

interests. Where it is clear that where the relationship is one of competitors, the 

Court is less likely to imply a need for one creditor to protect the economic 

interests of the other. 

This presumption is all the more powerful when the representation is, as 

referred to earlier, ambiguous. In CIBC, the Court viewed the words that were 

alleged to lead to a finding of fraud were actually just a statement of the current 

situation, as it existed at the time that the words were spoken. This statement was 

not meant to guarantee a state of affairs in the future as between the creditors. As 

the Court put it, it is simply a statement of what everyone already knew. 79 Stating 

a fact does not make a fraud 

On this level, Carson is quite different. In this case, Skuter represented both 

Creditor #2 and the debtor. When Creditor #1 indicates the intention to realize 

on its security, and Skuter requests an extension, this is not a competitive 

situation. Both the debtor and Creditor #1 are hoping that, despite the event of 

default that has occurred, if the debtor is given more time, the creditor will be 

paid out in full, and any realization of security will become unnecessary. In other 

words, there is a form of co-operation at hand, through an indulgence granted by 

the creditor to the debtor. The law should seek to encourage such indulgences, as 

realization on security through the default of the debtor should be a last resort, as 

between creditor and debtor. 80 But, instead of viewing the indulgence granted by 

the creditor as a co-operative reprieve, the person who controlled the debtor 

(Skuter) used the indulgence as a means to pursue actions that would ultimately 

lead to a possibility that the creditor would lose a priority competition to the 

person who possibly asked for, and certainly accepted, the advantage of the 

indulgence and the co-operative basis on it was offered. 

Carson is quite clear that deceit is unacceptable. Behaviour that is unjust may 

not be enough for the Court to use equitable principles to avoid the effect of 

PPSA’s priority provisions, but it is also evident that if the Court finds actual or 

constructive 81 fraud, it will not allow the PPSA’s provisions to facilitate the success 

79 

80 

81 

CIBC, supra note 31, at para 40. 

This is also consistent with the general law of contracts. On this point, see the judgment of 

Justice Ritchie, writing for the Court in John Burrows Ltd v Subsurface Surveys Ltd, [1968] SCR 607, 

68 DLR (2d) 354. In this case, the debtor tried to use an indulgence granted by the creditor as 

the basis for a promissory estoppel, saying that the indulgences was a representation as to future 

action. The Supreme Court of Canada disagreed, holding that the indulgence did not constitute 

a representation that could be relied upon by the debtor. 

One sees an example of constructive fraud in Carson itself. The court does not find actual fraud. 

In fact, Justice Grotsky finds that it is not even alleged against Skuter on the facts. See Carson, 

supra note 14, at para 18. Nonetheless, the Court refuses to allow the priority rules of the PPSA 

to be applied, based on not allowing an act of the legislature was be the machinery of fraud (at 

para 17).


of such a scheme. In other words, the litigator for Creditor #1 must convince the 

Court that something that Creditor #2 did departs from the expected behaviour 

of a creditor who is taking the best security that he or she can for the loan. If 

Creditor #2 makes it less than clear that Creditor #2 is being unequivocally selfinterested 

and appears to be assisting Creditor #1 to achieve a result desired by 

Creditor #1, the court may not allow Creditor #2 to assert priority. 

B. 

The Subordination Agreement 

A similar rationale also holds for the Furmanek 82 decision. In that case, 

Creditor #2 was actually involved in the negotiations with Creditor #1: 

1. The vendor [Furmanek] was actively involved in negotiations between the purchaser 

and the lender [Community Futures Development] for financing the purchase of his 

business by the employee. 

2. The vendor knew that without Community Futures financing the transaction, the 

transaction would not complete. 

3. The vendor received monies at closing and benefitted from the transaction 

completing and therefore benefitted from the lender's advance. 

4. The vendor represented to the lender that the assets were free and clear in the 

expectation that the lender would take a first charge on the inventory if the transaction 

completed and the vend[o]r represented that he would take a subsequent charge. 

5. The vender knew that if the lender was not in first position on the assets, it would 

not finance the transaction and the sale to the employee would not complete. 

6. Therefore, the lender assumed that it was in first position on the inventory; that 

assumption was in accordance with the discussions it had had with the vendor; the lender 

financed the transaction on that assumption, which it expected to happen; the vend[o]r has 

benefitted from the lender's financing of the transaction; the lender will suffer detriment if 

it is not in a first position on the inventory; and that will be the situation if the vendor 

asserts the priority that he is entitled to by way of registration. 83 

As the Court found, Creditor #2 encouraged the assumption of priority over 

inventory by Creditor #1, and then took advantage of that assumption, with the 

explicit representation of priority as an inducement to invest. This in itself would 

be enough to find bad faith. However, there is an additional element at play here. 

The promise of Furmanek is to ensure that the assets will be free of any other 

security interest, and that Development will rank in priority to Furmanek. In 

return for this promise, Development agreed to lend money to the purchaser to 

complete the purchase. This meets the basic criteria for a contract. Therefore, the 

Court finds that there was an unequivocal intention to forego priority for 

Furmanek, in favour of Development. 

Therefore, where a litigator is preparing an argument: (i) on behalf of an 

improperly registered creditor; (ii) where the improperly registered creditor has 

significant contact with another creditor; (iii) where, according to the provisions 

82 

83 


Ibid at para 12.


of the PPSA, the second creditor should prevail over the first; then (iv) it may be 

possible to argue that a written or oral subordination agreement 84 was entered 

into, and (v) if the agreement exists and the court recognizes that it exists, then, as 

between the parties to it, the priority of the parties is determined by their 

agreement. 

C. 

“It Wasn’t Me, My Lawyer Did It” Is No Defence 

In Strathcona, 85 there is a message for solicitors. When one is asked to 

discharge a security interest, one can only take instructions from the secured party 

named in the financing statement to be discharged. Remember that in Strathcona, 

the Court found that Creditor #1 could not rely on the fact that the discharge 

completed by the solicitor was not authorized by the client as a reason to disallow 

reliance of Creditor #2 on the provisions of the PPSA. Put another way, the 

relationship between solicitor and client will not generally result in a finding of 

fraud against a third party. This is true even if the same solicitor acts for Creditor 

#2 in a separate transaction. Nonetheless, it is the view of the authors that if there 

is collusion between the solicitor and Creditor #2 to bring about a result 

favourable to Creditor #2, the courts will not allow this, viewing it as constructive 

fraud. 

However, there is still every reason for solicitors to lay out (usually in writing) 

whose instructions will govern in a given situation, where there are multiple 

parties involved. A prudent solicitor might also want to get discharge instructions 

in writing, either before or after providing to the client written confirmation of 

the steps necessary to remedy an unintended discharge. After all, undoubtedly, 

Berman would have been the next logical target for Eldee for the value lost due to 

the discharge, which, from Eldee’s point of view, was unintended. 

VI. 

CONCLUSION 

Above, we have discussed two cases where the PPSA’s registration priority 

provisions have been upheld despite allegations that the knowledge of the one 

creditor should not allow the creditor to reap an unintended advantage, benefit, 

or windfall due to the mistake of another creditor. We have also seen two cases 

where the converse was true. From the point of view of the authors, the four cases 

can stand together as a cohesive whole. As a general rule, the priority provisions of 

84 

85 

A subordination agreement is a contract (or a part of a contract) where one creditor agrees to 

forego the priority that would otherwise accrue to his interest over the interest of another 

creditor. In other words, a subordination agreement is an arrangement by which creditors can 

agree as between themselves as to their respective priorities in the common collateral. The 

priorities agreed upon may be different from the priorities that would otherwise be established by 

the rules of security registration or possession provided for in the PPSA. 

Supra note 10.


the PPSA will govern, meaning that one creditor is allowed to take advantage of 

the mistake of another. However, where there is more than mere knowledge of a 

pre-existing security interest, and one secured creditor has been led, by the other, 

“down the garden path”, through fraud or something akin to it, the statutory 

priority scheme will be ignored, so as to defeat the fraudulent intent of the 

misleading creditor. The more involved the misleading creditor is with the other, 

in causing the other person to become a creditor, the more likely it is that the 

courts will find the misleading creditor to be acting in bad faith, which will not be 

allowed.

A House Divided: Access to Partition and Sale 

under the Laws of Ontario and Manitoba 

J O H N I R V I N E * 

I. 

INTRODUCTION 

T 

his paper 1 examines some important questions concerning the law of 

partition, and of “sale in lieu of partition”, a substitute remedy which in 

most common law jurisdictions made its appearance in the law at a 

relatively late date. The writer has no ambition to cover the subject 

comprehensively. Rather, it is hoped that further essays in this journal will appear 

presently, to address issues deliberately set aside in this article. In particular, the 

all-important question of how judges use their discretion in this context is a topic 

which both deserves and needs close and separate treatment; so that all this article 

attempts on that topic, is to show how, again at a surprisingly recent date, the 

whole phenomenon of judicial discretion, with all its potential for flexible and 

sensible decision-making, finally entered the picture. 

My present aim is to draw attention to an interesting anomaly. Historically, 

Manitoba has often “borrowed” legislation from Ontario, its older and more 

populous neighbour, often with minimal adaptation. It did so in 1878, when it 

passed its first Partition Act, 2 essentially copying the then-current Ontario Act 3 

almost word-for-word. While minor differences and amendments have crept in 

over the ensuing 133 years, and Manitoba’s Act has been subsumed into the 

eclectic or amorphous Law of Property Act, 4 the statutory provisions in both 

provinces, especially the core provisions which will be examined in this paper, 

remain recognizably and obviously the “same package”. Yet when we come to 

examine the functioning of these essentially identical provisions, as interpreted by 

* 

1 

2 

3 

4 

Professor, Faculty of Law, University of Manitoba; Member, Manitoba Law Reform Commission. 

The second essay in a trio of interrelated offerings destined for the Journal. The first, found 

earlier in this issue and entitled “Unsettled Estates: Manitoba’s Forgotten Statute and the 

Chupryk Case”, addressed aspects of the province’s law regarding consecutive interests in real 

property. In this sequel, we consider the rules governing the partition and sale of concurrent 

interests, and its shape in the aftermath of the Perpetuities and Accumulations Act, SM 1982, c 3-4, 

e 43. 

SM 1878, c 6. 

Partition and Sale Act, SO 1869 (32 Vict), c 33. 

CCSM c L90.


the courts of each province, we find a dramatic contrast. Manitoba has rejected, in 

one fell swoop and at a recent date, the rather painfully developed but now-settled 

position of the Ontario case-law, and has struck out on its own path. I propose to 

examine how and why this schism has developed, and to consider whether 

Manitoba’s initiative in this context is a salutary one, or just a recipe for 

confusion. 

I fear that the very selectivity of the text, examining some topics while 

virtually ignoring others, may give it a distressingly rambling or even random 

appearance, but by way of reassurance I would point out that its ground-plan is 

relentlessly chronological. If at times it seems to stall and linger awhile over some 

contentious or abstruse issue, it will soon resume its progress towards the 

confused picture (as I see it) presented by the law of Manitoba today. 

Partition and sale are devices or remedies whereby the law brings to an end 

hitherto shared entitlements to real estate, whether this is done consensually or by 

legal compulsion. As every student of the law quickly learns, the common law has 

from the beginning offered a diversity of ways in which land may be shared by two 

or more people. They may share it “spatially” by enjoying it simultaneously, 

“cheek by jowl”, and the ancient authors tell us that by Edward I’s time, four 

recognized methods of such co-ownership were familiar to lawyers – coparcenary, 

joint tenancy, tenancy in common, and tenancy by the entireties. By that time in 

history, another method of sharing, which we may call “temporal”, had become 

firmly established through the doctrine of estates; this method allowed title to be 

divided between a present occupant (such as a life tenant), and a title owner who 

could only anticipate physical enjoyment of the property at some future time (the 

remainderman or reversioner). 5 A couple of centuries were to pass before a third 

mode of sharing emerged – “juridical” sharing between persons holding title in 

the eyes of the common law, and those whose title was recognized by equity. This 

happened first through the medieval “use”, and later through the development of 

the trust. 

I shall have little to say in this short paper about the trust, but intend to 

show, rather, how in relatively recent times a measure of confusion has entered 

into the law governing the other two kinds of sharing – that is, the law of spatial 

co-ownership, and the law governing temporally consecutive estates. This 

confusion, as I have already ponderously hinted, has come about in spite of – or 

perhaps because of – the virtually identical but infelicitously worded legislation of 

Ontario and Manitoba respectively and while it has so far done little or no 

practical harm, as far as I can see, I propose to draw attention to it before legal 

discourse in relation to co-ownership (on the one hand) and the doctrine of 

5 

Of course, the life tenant’s interest, or the remainderman’s, or both, might at the same time be 

spatially shared by two or more people in any of the above ways; and this has been by no means 

unusual.

A House Divided 219 

estates (on the other) becomes so homogenized as to stultify legal argument or 

generate anomalies. 

The partition of land has historically meant the drawing of an imaginary 

boundary-line between different segments of a piece of real estate, so that land 

previously shared “promiscuously” by two or more people is allocated between 

them “severally”, with the result that they share no longer; each acquires his or 

her small but exclusive fiefdom. Partition is not generally regarded as a 

particularly difficult subject in our law schools, nor in the standard text-books on 

real property. More time is spent in the classroom on explaining what partition is 

not – that it is totally different from the far less drastic phenomenon 6 of 

“severance”. The general feeling is that problems of partition are generally laid to 

rest by the wording of the governing provincial statute, or by the comforting 

nimbus of judicial discretion which envelops the partition remedy. Whatever 

truth there may be in the latter belief, it shall be one theme of this paper that any 

faith in the clarity of Manitoba’s statutory provisions is sadly misplaced. 

By way of a comfortable introduction, and to set the scene for future 

discussion in this and perhaps other papers, I shall first attempt a concise 

overview of the history of partition, eventually narrowing down the focus to 

scrutinize the “modern” statutory framework in Ontario and Manitoba. 

I. 

THE EARLY HISTORY OF PARTITION 

The ancient common law certainly recognized the possibility of partition, and 

for centuries exercised an exclusive jurisdiction over it. But it was a very narrow 

jurisdiction indeed, for it applied only to coparceners. 7 Coparceners might, of 

course, agree consensually to partition the shared lands between themselves, and 

if the agreement held – even a parol agreement might do the trick and was 

enforceable 8 – coparceners need have no recourse to the courts to achieve that 

end. But if one co-parcener resisted entering into such an agreement, or declined 

to comply with it, she might be judicially compelled to submit to partition by her 

6 

7 

8 

For severance, the conversion of a joint tenancy to a tenancy in common, is not, like partition, to 

be considered a remedy. Courts may recognize its occurrence, but do not order it at any party’s 

request. 

Coparceners were persons who collectively found themselves standing in the position of heir to 

an undivided piece of land. This might result from the absence of a male heir to inherit a fee 

simple or fee tail under the old rules of male primogeniture, or from custom-based local rules of 

inheritance, notably gavelkind. They are, suffice it to say, extinct in Canada, if indeed any ever 

existed here. As to the narrowness of the common law, see JH Thomas, ed, Coke’s First Institute, 3 

vols, (London: S. Brooke, 1818) [Coke on Littleton] at Co Litt Lib 1 175a. 

Even before the Statute of Frauds, 1670, says Holdsworth, A History of English Law, vol 3, (London: 

Methuen & Co, 1942) at 233, citing Eden v Harris (1576), 3 Dyer 350b: which case, however, is 

very debatable on other points, notably the supposedly continuing application of survivorship 

between co-parceners.


fellow-parceners, who could invoke the writ de partitione facienda 9 to that end. To 

explain the matter in other words, coparceners, uniquely at common law, had a 

right to partition, good against all objections. 

But that is as far as the common law went. The writ de partitione was not 

available to joint tenants or tenants in common who found their role as 

concurrent owners irksome and who could not secure or enforce a mutual 

agreement to partition the land. Arguments resisting the extension of the 

common law remedy were entirely spurious, 10 and policy certainly militated 

against forcing unwilling owners (or any of them) to cohabit, so to speak, without 

any prospect of legal relief. 11 And so it was that finally, in the reign of Henry VIII, 

two statutes were passed to address the situation and extend the writ de partitione 

facienda to joint tenants and tenants in common. This salutary change was first 

made by “An Acte for Joynt Tenaunts and Tenaunts in Comon” 12 but the reform so 

effected was immediately perceived to be incomplete, for the constraints and 

resentments of unwanted co-ownership were not confined to joint tenants or 

tenants in common who shared a fee simple absolute. They might be equally 

vexing to co-owners of a life estate, or of a leasehold interest. So the following 

year, another short statute was passed, almost as anarchic in its spelling as its 

predecessor had been, to correct this oversight. That was the statute “Joinctenaunts 

for Lif or Yeres”. 13 

The 1540 Act made it possible for joint tenants or tenants in common to 

bring a writ of partition and thereby secure a court-ordered division of the 

affected lands as between themselves and for the duration of their estate or 

interests; it being expressly provided that the partition not be “prejudiciall or 

hurtfull to anny personne or persons their heirs or successors other than suche 

whiche be parties unto the said partition...”. 

The Henrician statutes were to have a long life, not least in England’s 

overseas colonies where, as we shall see, they endured in many instances long after 

they were superseded in England by more modern legislation. It must be noted 

9 

10 

11 

12 

13 

[Syn. particione] This writ, recorded in a number of 13 th century registers, is sometimes expressed 

as “de participatione facienda”. As noted by Lord Porter in Patel v Premabhai, [1954] AC 41, 

(JCPC); this is a “clerical error”, though one of some antiquity, having been perpetrated by the 

editors of the Statutes at Large, Vol. 2 (1786) in their (deplorably cavalier) version of the 1539 Act 

[post]. The authors of the Henrician original, whatever violence it may do to modern ideas of 

English orthography, are guiltless of distorting the Latin, pace Lord Porter’s assertion to that 

effect. 

See Joseph Story’s magisterial Commentaries on Equity Jurisprudence, vol 1 (Boston: Hilliard, Gray 

& Co, 1836) c 14 at para 602. 

See Blackstone’s Commentaries on the Laws of England, vol 2 (London: A Strahan, 1809), 185. 

“Thus, by the civil law, nemo invitus compellitur ad communionem,” he very sensibly observes. 

1539 (UK), 31 Hen VIII, c 1. 

1540 (UK), 32 Hen VIII, c 32.


that the jurisdiction conferred by the Acts was a mandatory one, decreeing that on 

presentation of the writ de partitione, co-owners (per the 1539 Act) “shall and maye 

be coacted and compelled... to make particion betwene them... in like manner 

and forme as coparceners by the comen laws of this Realme have byne and are 

compellable to doe...”. No discretion to deny partition, in other words, was vested 

in the Courts by the statutes, just as none had been so vested in suits between 

coparceners at common law. 14 Such a discretion really did not emerge for another 

three centuries, by force of later statutes. 

Another critical point to note is that the procedures attending the writ de 

partitione facienda were cumbrous, slow and frustratingly hedged about with 

qualifications. This is no place to investigate the ancient procedures, though they 

involved, after the common law court had given judgment upon the initiating 

writ, the direction of another writ to the sheriff, commanding him to make the 

partition by the oath of an “inquest” of twelve lawful men of the county, chosen 

from the neighbourhood of the affected lands. 15 

In this context as in so many others, the delays, inflexibilities and 

complications of the common law, coupled (it may be) with the prospect of 

enhanced business in Chancery, provoked the intervention of equity. As early as 

1598, in Speke v Walrond, 16 a plaintiff who could not hope for immediate partition 

at law, because one of his co-tenants was still a minor and a ward, was “holpen in 

equity”. And it is clear that in a short span of time, the Lord Chancellor’s court 

assumed a lively jurisdiction in partition, not only challenging the hitherto 

exclusive jurisdiction of the common law courts in such matters, but threatening 

to oust it entirely. Legislative efforts were made to alleviate some of the 

deficiencies of the common law, 17 but by the 18 th century, the common law writ 

had been almost entirely superseded by bills in Chancery. In every instance, this 

supplanting of the common law seems to have been justified by reference to the 

law’s endless delays and inconvenience. 18 Though there are some eighteenthcentury 

records of common law writs for partition, equity’s more expeditious and 

flexible procedures, and its more imaginative and efficient remedies, seem 

ultimately to have condemned the common law writ to obsolescence. It was finally 

14 

15 

16 

17 

18 

Britton II, 72 (c.1291-2) 

Coke on Littleton, supra note 7, Co Litt Lib 1 168b. 

(1598), 21 ER 153. 

See An Act for the Easier Obtaining of Partitions, 1697 (UK) 8-9 William III, c 31, the preamble to 

which succinctly but mordantly attests to the delays of the common law. It was (oddly) declared 

expressly to be in force for just seven years, but was later made perpetual by 3 & 4 Ann, c 18, s 2. 

See Manaton v Squire (1677), 22 ER 1036 [Lord Nottingham, LC]; and Calmady v Calmady (1795), 

2 Ves Jun 568, 30 ER 780 [Lord Loughborough, LC], where more than a century later, the 

Court of Chancery is still defending its supposed usurpation of jurisdiction in partition suits. 

The resentment felt by common law practitioners to this development was unusually vehement 

and protracted: see John Fonblanque and Henry Ballow, A Treatise of Equity, 5 th ed (London, 

1820), at 18 and 19; and Story, supra note 10, at ch 14, paras 646-7.


abolished by the Real Property Limitation Act, 19 amid a momentous general 

abolition of ancient writs and actions. From that point on, as Lord Halsbury puts 

it, “equity acquired technically, as before it had practically, exclusive jurisdiction 

in partition.” 20 

It might be supposed that this is where modern courts acquired that 

discretion which they universally claim nowadays in partition matters. But that is 

not the case. Equity’s assumption of jurisdiction over partition was founded upon 

the convenience and expediency of litigants, and in various respects it filled the 

public need admirably. 21 But the courts of equity were aware that the common 

law writ had regarded partition, almost 22 without exception, as a matter of right, 

not subject to judicial discretion; and that it was this right to partition which had 

been extended by King Henry’s statutes to joint tenants and tenants in common. 

So a matter of right, firmly founded on those ancient statutes, it remained; and 

no general discretion to deny partition was acquired by the courts, anywhere in 

the common law world, until well into the 19 th century. 

II. 

THE WINDS OF CHANGE: EARLY CANADIAN LEGISLATION AND 

THE ADVENT OF “SALE IN LIEU OF PARTITION,” BOTH IN ENGLAND 

AND IN CANADA. 

Not content with reliance on English law, however firmly “received”, several 

Canadian provinces enacted their own partition legislation at an early date. Nova 

Scotia, for example, had done so as early as 1767 23 and Upper Canada was not far 

behind with Partition Acts in 1832 24 and 1834. 25 Both these latter statutes, we 

should note, were more than three decades ahead of the field in introducing the 

option of sale in lieu of partition, where the latter was inexpedient or 

impracticable: a change not made in England until the Partition Act of 1868. 26 

19 

20 

21 

22 

23 

24 

25 

26 

1833 (UK), 3-4 William IV, c 36. 

Lord MacKay of Clashfern, ed, Halsbury’s Laws of England, 4th ed, vol 16(2) (Bath, England: 

Simon Hetherington LLB, 2003) at para 467. 

Not least in regard to the practicalities of partition, in cases where a fair and equitable 

distribution of the land, as between its co-owners, could not be realistically achieved, due to the 

character of the real property itself. See, for example, the phenomenon of “owelty of partition”, 

as touched upon briefly below – a device unknown in the common law courts. 

The exceptions were quaint; relating to titles of honour and to castles and other such places of 

military importance: Coke on Littleton, supra note 7, Co Litt Lib 2 164b. 

An Act for the Partition of Lands, SNS 1867 (7-8 Geo III) c 2. 

An Act to Provide for Partition, SUC 1832 (2 William IV) c 35. 

Real Property Amendment Act, SUC 1834 (4 William IV) c 1. 

(UK) 31 & 32 Vict, ch 40. It should be noted that the Act was a supplement to the existing 

statutes, rather than a replacement of it – the 1539 and 1540 statutes thus remained the core of 

partition law.


Jurisdictions less precocious than Upper Canada managed as best they could until 

reception of the English statute of 1868, alleviating the injustice of “lop-sided” 

physical partitions by the old equity device of ordering pecuniary make-up 

payments, or sometimes rental arrangements, called “owelty”. Manitoba was not 

in the vanguard of change. Having taken over, ready-made, the common law and 

equity rules on partition, it can confidently be assumed to have “received” also the 

picturesque old statutes of 1539 and 1540, whether by ancient common law 

doctrine of Calvin’s Case, 27 or by force of express provincial legislation proclaiming 

the validity of old English statutes passed before the province entered 

Confederation. That was the case in Manitoba 28 , in Saskatchewan and in 

Alberta 29 . In Alberta, indeed, the statutes of 1539 and 1540 were still the basis of 

all partition jurisdiction until 1979 and remain so to this day in Saskatchewan! 

And in all such provinces, we can be sure that the English Partition Act of 1868, 

antedating as it did their official attainment of provincehood, was gratefully 

received into the local law as soon as it had received assent in February 1868. 

As it happened, Manitoba, once it achieved its own legislature, was not slow 

in replacing this ramshackle state of affairs. Even though the inhabitants of the 

Red River settlement do not seem to have lost much sleep or indulged in any 

litigious disputation about partition or sale in those days, Manitoba introduced its 

own modernized legislation on these questions which appeared as the Partition 

Act, 1878. 30 Largely “borrowed” from the then current Ontario version of the 

Partition Act, 31 the essentials of the 1878 Act, and much of its detailed wording, 

have come down to the present day; and its lineaments are clearly discernible 

under the light patina of subsequent amendments over the last 133 years. It now 

appears as sections 18-26 of Manitoba’s Law of Property Act. 32 That comes about 

because in 1939, the previously free-standing Partition Act of Manitoba was 

subsumed under that eclectic rag-bag of a statute by the Law of Property Amendment 

Act of that year. 33 

27 

28 

29 

30 

31 

32 

33 

(1609), 77 ER 377, and the jurisprudence deriving from it. On reception generally, see Jean E 

Côté, “The Introduction of English Law into Alberta”, (1964) 3:2 Alta LR 262; and by the same 

author, “The Reception of English Law” (1977) 15 Alta LR 29. 

e.g. The Queen’s Bench Act, SM 1874, c 12, s 1. 

e.g. North-West Territories Act, SC 1870, c 25, s 3. These two provinces were originally part of the 

North West Territories, and were parceled out from it as the Dominion expanded in population. 

SM 1878 (41 Vict), c 6. 

Partition and Sale Act, SO 1869, c 33. 

Supra note 4. 

SM 1939, c.50. Whether its absorption into this larger and more diffuse piece of legislation, and 

its resultant “anonymity”, has contributed to the subsequent judicial confusion as to its function 

is a good but unanswerable question.


It is not surprising then that, to this day, the partition legislation of Ontario 

and Manitoba shares in large measure a common format. In particular, both 

jurisdictions have specific sections describing respectively who has locus standi to 

seek or (rather infelicitously) “petition for” partition, and who, per contra, may be 

compelled to make or suffer partition. The wording of these provisions has been 

occasionally and lightly modified in both jurisdictions over the years, and it may 

be helpful to compare the current texts before proceeding. The following 

provisions are taken from Manitoba’s Law of Property Act: 34 and Ontario’s Partition 

Act. 35 The reader will be asked to refer back to these provisions repeatedly in the 

discussion that follows. 

Manitoba 

Who may be compelled to make 

partition or sale 

19(1) All joint tenants, tenants in 

common, mortgagees and other 

creditors having any lien or charge on, 

and all persons interested in, to, or out 

of any land in Manitoba, may be 

compelled to make or suffer partition 

or sale of the land or any part thereof. 

Who may take proceedings for 

partition 

20(1) Any person interested in 

land in Manitoba, or the guardian of 

the estate of an infant entitled to the 

immediate possession of any estate 

therein, may bring action for the 

partition of the land or for the sale 

thereof under the directions of the 

court if the sale is considered by the 

court to be more advantageous to the 

parties interested. 

Ontario 

Who may be compelled to make 

partition or sale 

2. All joint tenants, tenants in 

common, and coparceners, all 

doweresses, and parties entitled to 

dower, tenants by the curtesy, 

mortgagees or other creditors having 

liens on, and all parties interested in, to 

or out of, any land in Ontario, may be 

compelled to make or suffer partition 

or sale of the land, or any part thereof, 

whether the estate is legal and equitable 

or equitable only. 

Who may bring action or make 

application for partition 

3(1) Any person interested in land 

in Ontario, or the guardian of a minor 

entitled to the immediate possession of 

an estate therein, may bring an action 

or make an application for the 

partition of such land or for the sale 

thereof under the directions of the 

court if such sale is considered by the 

court to be more advantageous to the 

parties interested. 

34 

35 

CCSM, c L90, as of June 2011. 

RSO 1990, c P4, as of that same date.


In both provinces, as is obvious from this little chart, there is an “active” 

provision (who can seek partition and sale) and a “passive one” (who may be 

compelled to undergo that process). In this paper, I am not going to say much 

about the latter aspect of things, interesting though it is. But I feel that it is 

important to point out that in spite of the apparent congruency of language used 

in the active and passive provisions of the statutes, 36 they are in fact quite different 

in their scope. I shall argue below, and the Ontario courts have with growing 

consistency held, that only a narrowly defined class of interest-holders may bring 

action to secure partition or sale. But the class of persons against whom such an 

action may lie, or who may find their interests affected, injuriously or otherwise, 

by such partition or sale; the people, in other words, who may collaterally have 

their interests in land converted into money, or re-allocated in some way by the 

partition/sale process; is much broader, and this is in fact reflected, very properly, 

in the wording of s 19(1) of the Manitoba statute and s 2 of the Ontario statute 

supra. The illusion of perfect reciprocity between the active and passive provisions 

of both statutes is just that – an illusion. If one simply but incautiously puts them 

together, disregarding their difference of function, one may erroneously allow the 

class of persons who can seek partition to become as inflated as the class of those 

who may be compelled to “suffer” it, and this in turn will result in partition or 

sale being made available to all sorts of persons who were never intended to have 

access to these remedies. 

It will be obvious, though, that whatever the dangers their drafting presents, 

these two “pairs” of sections, in Ontario and Manitoba, lie at the core of their 

respective statutes, and define and encapsulate the courts’ jurisdiction in these 

provinces. It will be necessary to return to them presently in examining the caselaw 

which they have provoked. But first, a brief digression seems to be called for. 

III. 

ONUS 

THE SLOW DAWNING OF DISCRETION AND THE QUESTION OF 

It will be obvious that the two “pairs” of sections isolated above not only 

define the jurisdiction of the courts, but affirm its essentially permissive character, 

as involving some measure of discretion. Thus in s 19(1) (Manitoba) and s 2 

(Ontario), the persons listed “may be compelled to make or suffer partition...”. 

This reflects an important change in the law. In Ontario, as late as 1869, the 

Partition Act of that year had been expressed in mandatory language. 37 The 

36 

37 

“All persons (Man) [all parties, Ont] interested in, to, or out of any land” in the passive 

provisions of the respective statutes: “Any person interested in land” in their active provisions.” 

The inexact correspondence of the passive and active texts was commented on by Judge 

Kingsmill in the early Ontario case of Rody v Rody, infra note 85. 

Supra note 30.


defendant (or otherwise opposing) parties “shall and may be compelled to make, 

or suffer partition or sale,” it said. But by 1877, the words “shall and” had been 

erased, and the reading now declared that the affected parties “may be 

compelled”, 38 language of an incontrovertibly permissive and non-mandatory 

character. But s 28 of that same revised statute was in the old “shall and may” 

language. In short, the 1877 statute was internally self-contradictory. Not until 

1913 was a new Act, 39 introduced, and the repugnancy eliminated. Ever since 

1913, the Ontario Partition Acts have consistently stated that the Court “may” 

order partition. And while for decades there were contrary views expressed by 

some distinguished Ontario judges 40 , professing that they had no discretion to 

deny partition or sale when petitioned for such remedies, the whole matter was 

finally put to rest by an elaborate and careful judgment of the Ontario Court of 

Appeal in Re Hutcheson and Hutcheson in 1950 41 . The Court’s discretion in matters 

of partition and sale was finally and emphatically confirmed, and has been a lively 

source and focus of disputation and litigation ever since. 

In Manitoba, too, this issue of discretion was long in doubt. Manitoba’s first 

“home-grown” Partition Act, in 1878 42 used the old “shall and may” language, like 

its Ontario original and counterpart, and was certainly mandatory in character. 

And it is curious to note how the legislative and judicial history of this issue 

“tracks” the experience in Ontario. Just as the “shall and may” language of 

Ontario quietly shifted to the permissive “may” in the Revised Statutes of 1877, and 

just as the Ontario judiciary long clung to their posture of “no discretion” 

nonetheless, so in Manitoba we find McPherson CJK.B. in Szmando v Szmando 43 

still refusing to acknowledge that he has any discretion to refuse partition, even 

though nine years previously, (during the “migration” of the province’s partition 

statute into the Law of Property Act), 44 the “shall and may” formula had been 

covertly transmuted into “may”. “Partition”, said the learned Chief Justice, “is a 

matter of right” to which one might fairly add the caveat “Provided that he who 

seeks it has locus standi to do so.” That standing was not established on the facts in 

the later case of Wimmer v Wimmer, 45 but the “discretion” point was touched 

upon. Major J at first instance seemed inclined to follow Szmando, and the Court 

38 

39 

40 

41 

42 

43 

44 

45 

RSO 1877, c 101, s 4. 

RSO 1914, c 114. 

See Byall v Byall, [1942] 3 DLR 594 (Ont H Ct J); Morrison v Morrison (1917) 39 OLR 163, 34 

DLR 677 at 686 (Ont SC, AD); Dickson v Dickson [1948] OWN 325 (Ont H Ct J). 

[1950] OR 265, [1950] 2 DLR 751 (Ont CA). 


[1940] 47 Man R 397, [1940] 1 DLR 222 (Man KB). 

As mentioned supra note 31. 

35 Man R 232, [1947] 1 WWR 734 (affirmed 55 Man R 232 at 240, [1947] 2 WWR 249).


of Appeal found it unnecessary to decide the point. Not until Fritz v Fritz (1949) 46 

did a divided Court of Appeal make it clear that the Manitoba statute now 

conferred a statutory discretion to deny to a petitioner (otherwise qualified to 

petition for it) 47 an order for partition or sale. A few years later, in Klemkowich v 

Klemkowich (1955) 48 Freedman J (as he then was) expressed this view as being 

beyond debate, noting only that “the principles in accordance with which that 

discretion should be exercised have not been adumbrated with finality.” 

And so it was, that after many travails, both in Ontario and Manitoba, it 

came to be universally accepted that the jurisdiction to grant partition or sale in 

these provinces is discretionary. No case decided in Manitoba since then has 

disputed this, but mysteries remain. On whom does the burden of persuasion lie, 

when partition or sale is sought And what considerations, conventions or rules, if 

any, exist to guide the judge in the exercise of his or her discretion 

As to the latter question, I propose as indicated earlier to say very little, 

though I have reason to hope that in the near future, another article will appear 

in this journal, examining the pattern of decision-making in relation to partition 

and sale decisions, and reflecting upon the considerations of policy and justice 

which should inform them, especially in the critically important context of family 

law. For now, I would just observe that in the leading case of Winspear Higgins 

Stevenson Inc. v Friesen, 49 a very strong Manitoba Court of Appeal declined 

resolutely to fetter its discretion by the pronouncement of any rigid rules. That 

posture, still maintained, is one of the few constants in this area of the law. 

But again, what of the burden of persuasion Here again, obscurity descends 

upon us. While continually reiterating the mantra that it is always a matter of 

discretion anyway, and that the relief sought will not be granted where to do so 

would be oppressive or vexatious, or where the applicant does not come to court 

with “clean hands”, there is only a tendency to say that otherwise, partition or sale 

should be ordered “if there is a prima facie right to it”. This unhelpful proposition 

seems to have originated in a reference, in the Ontario case of Szuba v Szuba, 50 to 

the august authority of Willes J in Lee v Bude & Torrington Junction Railway Co.; 51 a 

case which had nothing to do with the partition and sale of realty, and was 

decided at a time when in England as elsewhere orders of partition were not 

46 

47 

48 

49 

50 

51 

57 Man R 510, [1950] 2 DLR 104. 

There had been cases in which the rights of the petitioner were not such as to justify his status as 

such, and where it was accordingly determined that his claim to partition was not “as of right”: 

Kluss v Kluss (1948), 55 Man R 460, was a case of this kind, but did not address, as Fritz was to 

do, the vexed issue of whether the statutory jurisdiction inherently invested the judge with 

discretion to grant or deny partition or sale on the general merits of the case. 

63 Man R 28, 14 WWR 418. 

(1978) 5 RPR 81, [1978] 5 WWR 337. 

(1950), [1951] 1 DLR 387 at 389, [1950] OWN 669. 

(1871), (1870-1871) LR 6 CP 576.


matters of discretion anyway, under the governing statute. Under the influence of 

Willes J’s very generalized dictum, Manitoba courts have seemingly created this 

doctrine that in the absence of oppression, vexation or “dirty hands”, an applicant 

is entitled to the order he seeks “if he has a prima facie right to it”: see Shwabiuk v 

Shwabiuk; 52 Klemkowich v Klemkowich; 53 Fetterly v Fetterly; 54 Leippi v Leippi 55 and 

Winspear Higgins Stevenson v Friesen. 56 No doubt the list might be further extended, 

and an equal or greater litany of Ontario cases cited to the same effect. 57 But 

however numerous and weighty the authorities, we may reflect that they rest upon 

a frail basis, and seem (with respect) question-begging and obscure. The question 

they beg is precisely this – who has a prima facie right to partition or sale Unless 

we can answer that, there is surely an element of circularity in the analysis: “the 

burden of persuasion is on him who would resist the claim of the remedy to 

someone who has a prima facie right to it.” 

When we look at the cases which seek to apply this gnomic and unsatisfying 

precept we find that in truth the “prima facie right” seems to be co-extensive and 

synonymous with the right or locus standi to make the application; that is, there is 

no-one who is within the category of persons indicated by s 20(1) of Manitoba’s 

Law of Property Act 58 who is not thereby invested with a “prima facie right” to that 

which he seeks. To assert the proposition in yet another way, the advantages in 

terms of the burden of persuasion will be accorded automatically to anyone who 

has status under the Act to take proceedings for partition or sale. It will be for the 

defendant to put his or her best foot forward, if partition or sale in lieu thereof is 

to be averted. 

IV. 

TAKING STOCK: THE LEGAL LANDSCAPE CIRCA 1880 

If we now return to the point at which our historical account was interrupted 

by the foregoing digression, we find ourselves in the year 1880, or thereabouts. 

Both Ontario and Manitoba have their own, recently overhauled or recently 

enacted partition statutes, apparently “Canadian made” and very similar in their 

wording; small wonder, for the Manitoba Partition Act is largely and avowedly 

copied from its Ontario counterpart. Both statutes confer jurisdiction to order 

either partition, or sale in lieu thereof, with subsequent division of the proceeds. 

52 

53 

54 

55 

56 

57 

58 

(1965), 51 DLR (2d) 361, 51 WWR 549 (Man CA). 


(1965), 54 DLR (2d) 435, 54 WWR 218, (Man QB) Wilson J. 

[1977] 2 WWR 497, 30 RFL 342, (Man CA). 


Such a list, indeed, is provided for us by Wilson J in Fetterly v Fetterly, supra note 54 at 221. 

Supra note 4 at 20(1).


Both adopt the strategy of defining the incidence of these remedies by setting out, 

in separate, crucial sections, who may petition for partition or sale; and who may 

be compelled to undergo or “suffer” those processes, whether they like it or not. 

While it is true that the Ontario law has (very recently) made these avenues of 

redress discretionary, while Manitoba has yet to make that change, the critical 

provisions are almost as like as two peas in a pod; both ascribing locus standi for 

seeking partition to “any party interested” in the affected land, and decreeing that 

“all parties interested in, to or out of” that land may be compelled to undergo 

partition. A number of inquiries and observations suggest themselves. 

First, where does this format, and its curious language, both in the Ontario 

and Manitoba statutes and their successors, come from In Manitoba, at the time 

of which we are now speaking, the answer is easy enough. The “any person 

interested” phraseology is right there in the Partition Act, 1878 59 the province’s 

very first “locally-produced” legislation on the subject. This phrasing (in s 5) is 

drawn directly from the then-current provision in Ontario, 60 re-enacting with 

minor semantic corrections the Partition Act of 1869. 61 But that is not the end of 

the matter. If we go back into the Ontario legislation prior to 1869, the track 

becomes fainter and muddier. The Partition Act of 1859 62 says that partition may 

be sought by “Any joint tenant, tenant in common, or co-parcener”, and later 

observes that upon an intestacy “Any one or more persons entitled to a share or 

interest in ... land and the immediate possession thereof” may seek such partition 

or sale.” Whatever problems of interpretation this rambling provision may 

suggest, there is nothing in it to dictate that the sole owner of an undivided estate 

in land may seek partition; and certainly nothing to encourage belief that a 

remainderperson or anyone else lacking immediate possessory rights might do so. 

The 1859 provision is modelled in turn on s 2 of the 1857 Rights of Primogeniture 

Amendment Act 63 which is equally “difficult”. 

Alas, the difficulty does not end there. In the Ontario case of Murcar v 

Bolton 64 discussed later in this paper, Armour J (as he then was), in his dissenting 

judgment, declares à propos of nothing in particular that the 1857 Act of Upper 

Canada, 65 which as noted above was shortly to be incorporated in the Partition Act 

in the Consolidated Statutes of 1859, 66 was “largely transcribed” from the 

59 

60 

61 

62 

63 

64 

65 

66 


Supra note 36 at s 8. 

SO 1869, c 33, s 6. 

SC 1859 (22 Vict), c 86, s 6. 

SC 1857 20 Vict c 65. 

(1884), 5 OR 164 [Murcar]. 

SC 1857 (20 Vict) c 65. 

CSC 1859 (22 Vict), c 86.


Partition Act of the State of New York; 67 and that the decision of the Court of 

Appeals of New York in Blakeley v Calder 68 may cast further light on its meaning. If 

this American statute indeed represents the true Urschrift or inspiration of the 

later Ontario partition statutes (and by extension, those of Manitoba too), it 

deserves, surely, the closest attention. But I regret to report that examination of 

the New York revised statute discloses no evidence of anything that could be 

called “transcription”, nor any congruencies of language which suggest anything 

more than coincidental (and not particularly intimate) similarities of expression. 

Nor does Blakeley (casually mentioned again in the much later Manitoban case of 

Chupryk v Haykowski) 69 help our understanding much. Rather than protract this 

digression further, and endanger the cogency of the main argument, I have 

adopted instead the strategy favoured in American law journals, and consigned 

the whole issue to an enormous footnote. 70 

Another general observation which might well have been made in or around 

1880, would be along these lines: with respect to partition or sale, Ontario and 

Manitoba now have almost identical statutes, and each province offers a judicial 

power of ordering sale of the real estate, if a sufficiently interested party asks for 

such a measure to be directed. That, contemporaries might have said, makes two 

co-existing statutes on the books in our respective provinces, enabling such forced 

67 

68 

69 

70 

2 RS, title 3, pp 315 ff. 

15 NY 623, 1 EP Smith 617, (1857) [Blakeley] 

(1980), 110 DLR (3d) 108, 3 Man R (2d) 216, [1980] 4 WWR 534 [Chupryk]. 

Volume II of the Revised Statutes of New York represents part of a more general programme of 

codification, ambitious in scope, enacted by that state during the years 1827-8. Title 3, 

addressing “The Partition of Lands owned by Several Persons”, is lengthy, elaborate and 

meticulous. It may very well have been used as a source of ideas for Ontario’s statute of 1857, but 

it was nothing more – certainly it was not “transcribed”, and the key provision (s 1), governing 

“Who may apply” [for partition] and to what courts, is explicit in confining that entitlement (a) 

to joint tenants or tenants in common; and (b) to persons who as such are “in possession of any 

lands, tenements or hereditaments”. There is no use of the Ontario (or Manitoba) phraseology 

which speaks of applications by “any person interested” in the land, and nothing to encourage so 

expansive an interpretation. Recorded cases upon the statute, such as Brownell v Brownell, 19 

Wend 367, (1838 SCNY), show partition being refused, in deference to the statute, to persons 

who cannot show a right to immediate possession. As for the case of Blakeley v Calder, supra note 

68, on which Armour J seems to rely in Murcar to support his position, it may be noted that [i] 

he relies solely upon the opinion on this issue of Denio CJ, who found himself in a minority on 

this particular point; [ii] Denio CJ’s thesis was founded upon a heterodox theory of possession, 

which would accord possessory rights to any vested remainderperson; and [iii] the entire 

discussion was obiter, the whole Court of Appeals concurring in a ratio decidendi which declared 

that if an order of sale had been made, at the suit of a remainderperson, then whether that order 

was supportable in law or not, its very existence would give a good title to the purchaser at such a 

sale, who could not, therefore, properly refuse to complete his purchase. All in all, Blakeley 

represents a frail support for the dissenting opinion of Armour J in Murcar, and none for the 

Manitoba Court of Appeal’s judgment in Chupryk v Haykowski, extensively discussed hereafter. In 

short the “New York connection” is a classic red herring.


sales on the application of people sharing the real estate. Two Yes, for long 

before any Canadian partition statute was ever enacted, there had been Settled 

Estates legislation to be taken into account. A strange little procession of these 

statutes under a variety of titles and gradually expanding in scope, may be traced 

in the English statute book from the early 1800s onwards, and all had the same 

basic function. They were designed to enable the holders for the time being of 

limited interests in land (almost invariably life tenants) to deal with the fee simple 

title to the land (which ex hypothesi they lacked) in such a way as to “bind the 

remainderman”, and “saddle” him with the results of such transaction – which 

might, for example, be a lease of the land for a term of years, or an outright sale of 

the fee simple title. In cases where these Settled Estates Acts applied, the 

remainderman might find himself “stuck”, after the life tenant’s death, with 

whatever was left of a lease granted to a third party by the lamented life tenant; or, 

in a more extreme case, made to content himself with money in lieu of the 

landholding he had hoped for, in consequence of the life tenant having sold the 

land with the permission of the Court under the Settled Estates Act. 

The powers of sale and other powers of disposition conferred by Settled Estates 

Acts – some of which still exist in Canada – were always made available to the 

current life tenant, and no-one else: and it would (usually subject to judicial 

approval) avail him against his remainderperson or reversioner. In other words, 

they were designed to operate between and affect the rights of persons “sharing” 

the land by way of temporally consecutive estates – not, like Partition Act powers of 

sale as traditionally understood, between persons simultaneously sharing, spatially, 

a single estate. 

A lawyer of the 1880’s would have well understood this divergence of 

functions between Partition Statutes and Settled Estates enactments: and might 

lightly dismiss any suggestion that any confusion of their functions, or any 

usurpation, by the Partition Act powers of sale, of the functions of Settled Estates 

Act, was seriously in prospect. 

Yet it is my contention in this paper that this confusion or “slippage” of 

functions is precisely what threatened to happen in Ontario in the late Victorian 

period, and ultimately has happened, more recently, here in Manitoba; 71 and the 

consequences are with us still. 

The reason for this confusion is not just that lawyers have at various times 

“taken their eyes off the ball”, or exploited judicial inattention for their clients’ 

ends. Rather it lies in the extraordinarily broad language used in the key 

provisions of both the Ontario statutes and Manitoba’s (right from the original 

71 

The “take-off” point for this faux pas, as I see it, is the judgment of the Manitoba Court of 

Appeal in Chupryk v Haykowski, and the story is more fully recounted in my earlier note in this 

journal, “Unsettled Estates: Manitoba’s Forgotten Statute” etc.


1878 version). Just look again, if you will, at the key words of the current (2011) 

Ontario and Manitoba statutes, as set out above in section II. 

Taking, for the sake of argument, ss 19(1) and 20(1) of Manitoba’s current 

partition-and-sale provisions, as there set out; and taking their language at face 

value – especially those “all” or “any persons interested” phrases, is it unduly 

fanciful, or at all cynical, to suggest that informally expressed they should be 

construed as “Anyone with any interest whatever in land, great or small, 

undivided or partial, in possession or in remainder, and whether or not 

amounting to a freehold estate in the land, may seek partition or sale and, subject 

to the discretion of the Court, succeed in that application against anyone else who 

may claim any “interest” in that land as defined just as compendiously” 

If that is the law, then those who advocate it should realize that no-one 

(except a sole holder of a fully vested fee simple absolute in possession) can ever 

claim to enjoy any interest in land in Manitoba that is not subject to partition or 

conversion into money at any time, at the suit of any other person who can point 

to his or her entitlement to some other interest, however trivial, in that same 

property. In the last analysis, under such a regime, only the discretion of the 

judiciary keeps the sword of Damocles suspended in the air. Can it really be that 

this was the intention of the Ontario and Manitoba legislatures Yet this is the 

inescapable result of adopting what I shall call the “plain meaning” perspective 

upon the extremely expansive wording of the “entitlement to sue” provisions of 

the partition and sale statutes of both provinces. 

Against that (to some, alarming) approach, one might argue for what I shall 

call the “essentialist or historical” perspective. Instead of taking the stark language 

of the statute at face value, this approach construes it in light of the historical 

background against which the statutes were composed, and accords to certain of 

its words – the word “partition” in particular – a specific and technical meaning 

which, it is inferred, has so long been associated with that expression as to become 

part of its essential or “core” meaning. On this view, the remedy of partition 

means not, as the uninitiated might suppose, just a spatial division or parcelling 

out of land between two or more people. It means a remedy sought by one 

person, presently sharing possession of an interest in that land with another, who 

is the defendant. On this view, in its most uncompromising formulation, 

partition (or sale in lieu thereof) can only be sought by one who is presently in 

occupation of the realty, or is at least entitled to such immediate possession of it, 

as a joint tenant or tenant in common with the person who now opposes him. 

A less dogmatic version of this approach would not insist that the claimant be 

a joint tenant or tenant in common, but would insist at least that the claimant 

show an immediate possessory right, in some capacity.


V. 

SO WHAT IS THE LAW 

Before expressing any concluded opinion as to which of these two (or three) 

divergent perspectives is correct, it might be wise to ask ourselves a few hard 

questions. 

Can the wording of the Manitoba and Ontario statutes now under scrutiny 

possibly be taken to “mean just about what it says” If it does, it represents a 

dramatic departure, first, from the position generally prevailing, to this day, in the 

rest of Canada; and secondly, from the law as anciently developed in England, 

and universally applied in the common law world in the days before these statutes 

were enacted. Both these assertions on my part may seem to call for explanation 

and justification, which I shall now attempt. 

As to the former proposition, I shall simply cite the summary given by 

Professor Bora Laskin (as he then was) in the 1964 edition of his text “Cases and 

Notes in Land Law”: 

It has been held that an applicant for partition under the general run of legislation in the 

common law provinces must have an estate in possession or have the immediate right to its 

possession; hence a registered judgment creditor of a joint tenant has no standing to seek 

partition (see Morrow v Eakin [1953] 2 DLR 593, 8 WWR (NS) 548 (BC)), nor has a 

claimant of a legacy charged on land (see Re Fidler and Seaman, [1948] 2 DLR 771, [1948] 

OWN 454), nor has a widow who is entitled to dower out of the land held in co-tenancy 

(see Morrison v Morrison (1917), 39 OLR 163, 34 DLR 677 (App Div)), nor has a mortgagee 

of a co-tenant who is still in possession (see Mulligan v Hendershott (1896), 17 PR 227 (Ont)) 

In so far as partition legislation in Canada may be invoked only by persons in possession or 

entitled to immediate possession, neither reversioners nor remaindermen who are coowners 

of such interests may seek partition either against an existing tenant for life, in any 

event because there is no co-tenancy with a life tenant (see Murcar v Bolton (1884), 5 OR 

164) or as against each other (see Morrison v Morrison, supra), even though there is no 

intention to disturb an existing life tenant (see Bunting v Servos [1931] OR 409, [1931] 4 

DLR 167 (CA)) 72 

As to my second assertion, that the traditional stance of the whole law, prior 

to these statutes, is seemingly challenged by the language of the modern Ontario 

and Manitoba statutes, I must say a little more. 

Whatever may have been its other shortcomings, the old writ de partitione 

facienda was admirably clear as to its function and range of application. As Sir 

Edward Coke put it “It is to be observed that the words of the writ de partitione 

facienda be “quod cum eadem A et B insimul et pro indiviso teneant tres acras &”; 73 this 

meant, he explained, that to claim partition, one must be (a) a tenant in 

72 

73 

Bora Laskin (as he then was), Cases and Notes in Land Law, rev ed (Toronto: University of 

Toronto Press, 1964) at 402 [emphasis added]. We shall look at some of the cases cited inter alia 

later. The phrases emphasized by me show the acuteness with which the learned author 

deliberately accommodates and reserves comment on the Manitoba and Ontario positions. 

Coke on Littleton, supra note 7, Co Litt Lib 2 167.


possession of a freehold estate, and (b) be sharing that estate simultaneously 

(“insimul”) with the other co-owner or co-owners. It is clear that this 

understanding, familiar to Littleton in 1481, had by Coke’s day been challenged, 

unsuccessfully but with sufficient frequency to generate and define a recognized 

plea of “non tenet insimul”, when, for example, a sole estate holder, or the holder(s) 

of an estate not yet in possession, sought an order of partition. As we shall see 

later, this plea – and the very conception of partition which it embodies – seem in 

some way to have faded from the collective memory of the profession in 

subsequent centuries and in some jurisdictions, and this had given rise – and still 

gives rise – to doctrinal confusion when disputants who are not currently in 

possession, and/or are not sharing such possession simultaneously, seek to invoke 

the statutory remedies of partition or sale. The reasons for this error – if it be such 

– probably relate (a) to the universal decline or de-formalization of the strict arts 

of pleading; (b) the often imprecise, even nebulous language of “modern” 

partition statutes; and (c) a felt need to challenge the ancient limits of the 

partition concept, in light of the protracted absence of what we would nowadays 

call “Settled Estates” or “Settled Land” legislation, adequate to deal with the 

dissatisfaction of consecutive (as distinct from concurrent) estate holders. 

So we see that in England, as late as 1869, tenants in common of a 

reversionary interest, not yet in possession, were told by Lord Romilly MR that 

they lacked status to seek partition or sale. 74 As Mr. Jessel (as he then was) put it in 

argument, “At law only a tenant in possession of the freehold could sue out a writ 

of partition; and equity follows the law in this respect.” And this was emphatically 

endorsed on appeal, 75 where Lord Hatherley LC reminded the profession of “the 

ordinary rule that the Court will not allow a partition suit to be maintained by a 

reversioner. This rule is not merely technical, but is founded on good sense in not 

allowing the reversioner to disturb the existing state of things.” 76 

Other cases, illustrative of the “old” law’s insistence that a petitioner for 

partition or sale be able to show an interest “in possession”, might easily be cited. 

In the English case of Dodd v Cattell, 77 the reversioner upon a lease with nearly 

1000 years left to run should not have been surprised that Warrington J declined 

74 

75 

76 

77 

Evans v Bagshaw, (1869) LR 8 Eq 469. 

Evans v Bagshaw, (1870) LR Ch App 340. 

Ibid at 341. As Mr W R Pepler points out in his valuable article “Partition – A Survey of the Law 

in Alberta” (1977) 15 Alta LR 1 at 4. Meredith CJCP was to make the same point some years 

later in Morrison v Morrison (1917), 39 OLR 163 at 173, 34 DLR 677 at 684, (Ont CA), 

explaining “Partition is a remedy only available to those who need it.” “In other words”, Pepler 

explains at 4, “those in possession.” Yet in Canada, there are cases, as we shall see presently, 

where in supposed reliance on provincial statutes, this rule has been challenged (see Murcar v 

Bolton, supra note 64): or flatly disregarded (see Chupryk v Haykowski, supra note 69, and Aho v 

Kelley (1998), 57 BCLR (3d) 369, 24 ETR (2d) 156, (BCSC). 

[1914] 2 Ch 1.


her invitation to order partition or sale. 78 Mortgagees of shares however, have on 

occasion been acknowledged to have a right to seek partition or sale, provided 

that they first acquire, by foreclosure or otherwise, the right to immediate 

possession of the land. 79 Similarly, in some jurisdictions it has been held that 

judgment creditors may seek partition if, and only if, their efforts to realize upon 

the judgment debt have reached the point where possession of the debtor’s share 

has been gained. 80 Other potentially contentious fact-situations might easily be 

imagined. But all discussion in this area is potentially confounded by a number of 

variables – as to the question of whether the plaintiffs’ right to immediate 

possession is an indispensable prerequisite, the Canadian Law is almost 81 

uniform. But as to whether the claimant must also be a co-owner, in the sense of 

sharing “insimul” the estate to be divided or sold, the picture is confused by 

differences between the statutes of various jurisdictions. And often too, as in cases 

advanced by persons seeking orders of sale to realize upon their as yet inchoate 

dower rights, the answer may of course be determined not by the partition 

legislation of the province, but rather by the particular directions of its dower or 

homestead legislation. 82 

Returning once more to the wording of the Ontario and Manitoba statutes, it 

must be acknowledged once again that their expansive and imprecise wording; 

and in particular their failure to define who is a “person interested in land” 83 have 

created that dichotomy of views, or antithesis of perspective, as to how the statutes 

of these two provinces should properly be construed and applied. Those 

conflicting perspectives, the “plain meaning” approach, and the “essentialist” 

approach, must now be examined in the context of the reported case-law over the 

years. 

VI. 

CONFRONTING THE CASE-LAW 

It may perhaps be thought remarkable that so stark a difference of 

perspectives, on so fundamental an issue, would for decades remain unresolved 

and indeed unaddressed by the courts of Canada’s most populous province. Yet 

really we should not be surprised, for, then as now, the great majority of partition 

78 

79 

80 

81 

82 

83 

Though he also refused her application because she was neither joint-tenant, tenant-in-common, 

nor coparcener. 

Fall v Elkins (1861), 9 WR 861. 

Re Craig (1929), 1 DLR 142 (Ont SC). 

The most blatant contradiction of it lies, unfortunately, in the leading Manitoba case of Chupryk 

v Haykowski, extensively discussed later in this paper. 

A particularly valuable analysis of who may demand partition generally, which illustrates all these 

variables in play (and just about every imaginable fact-situation) is to be found in Pepler, supra 

note 76, at pp 4-8 inclusive. 

Supra note 34 at s 20(1), and note 35 at s 3(1).


suits are, one suspects, straightforward conflicts between concurrent owners of a 

fee simple in possession; and one may readily believe that in most other cases, a 

peaceable solution by agreement may be arrived at, and costly litigation avoided, 

which might have put in issue and perhaps resolved the more challenging legal 

difficulties. 

In the event, it must be admitted that the debate in Ontario, once litigants 

and judges had attuned themselves to the outwardly astonishing breadth of the 

“new generation” of partition legislation from 1869 onwards, got off to rather a 

bad start. Widows whose dower rights were as yet unassigned, but who were 

impatient to realize upon their rights, sought to circumvent the delays of the 

dower legislation 84 by application for partition, (or more frankly, for sale in lieu of 

partition) under the then current Ontario Partition Act. 85 Even now, reading the 

case-law of that era, the discomfiture of the Ontario judiciary, seeking to reconcile 

these statutes, can be clearly sensed. The issue clearly provoked real differences of 

opinion. The quality of the reports and, one fears, of the judgments they purport 

to reflect, is variable. In Rody v Rody, 86 we are treated to a meticulous and learned 

analysis 87 of the problem, and a doweress whose dower had not yet been assigned 

was denied partition on the twin grounds, apparently, that she was (a) not in any 

sense a concurrent owner; and (b) that her “interest” was not in possession. In 

1883, we encounter Lalor v Lalor, 88 a case so inadequately reported that the 

divination of its facts is itself a challenge, and the legitimacy of its ratio (and its 

headnote too) accordingly a matter of speculation. Again, it was an action by a 

doweress who was also a life tenant in the share of a child who had predeceased 

her. Proudfoot J declared that whatever rights she had as a doweress, she was 

certainly entitled as a life tenant to seek partition. So the headnote baldly states 

“A tenant for life is entitled to a partition.” But all the internal indicators, such as 

they are, suggest that she was only a tenant in-common of the life estate, not a sole 

owner thereof. Gaskell v Gaskell, 89 the only case cited in support of the judgment, 

was a case of that kind, and as such frankly uncontroversial, since co-holders of a 

life tenancy, as we have seen, had been entitled to seek partition for the duration 

of that estate ever since King Henry VIII’s statute of 1540. 90 I labour the point 

84 

85 

86 

87 

88 

89 

90 

Notably the Dower Procedure Act, SO 32 Vict c 7, incorporated into RSO 1877 c 55. 


(1881), 1 CLT 546. 

By Judge Kingsmill of Bruce County, who sets an example in scholarship which later judges at 

more elevated levels would have done well to follow. 

(1883), 9 PR 455, (Ont HC). 

(1836), 58 ER 735, 6 Sim 643 (Ch). 

Supra note 13. The view here taken, I am pleased to see, is shared by Dupont J in the later 

Ontario case of Morris v Howe (1982) 38 OR (2d) 480, 138 DLR (3d) 113 (Ont HC), discussed 

post.


because of the unqualified and to my mind inflated effect accorded to this case by 

the Manitoba Court of Appeal in Chupryk v Haykowski, which will be discussed 

shortly. 

Devereux v Kearns, 91 a decision of Ferguson J, is said by its headnote-writer to 

have “overruled” Rody, and to have held that a doweress, though her dower still be 

unassigned, was entitled, under the statute, to seek partition, since she was a 

“party interested in the land” within the meaning of section 8, giving the statute 

its “fair and obvious meaning”. The language of Ferguson J in relation to the Rody 

decision is language of politely deferential disagreement, to be sure. But the real 

mystery of the case is how Ferguson J escapes the clear implications of the thenrecent 

judgment of his own Divisional Court in Murcar v Bolton, 92 to the effect 

that remaindermen cannot seek partition against a sitting life tenant. As it was, 

the case of Fisken v Ife in 1897, 93 as discussed below, must surely be regarded, in 

retrospect, as having implicitly overruled Devereux v Kearns. 94 

While the differences of judicial opinion as to the scope of the statutory 

partition remedy were obvious just “below the surface” in these dower cases, they 

really come into the open most starkly in the still-important case of Murcar v 

Bolton, 95 which divided a Divisional Court of the Ontario Court of Queen’s 

Bench in 1884. 

Murcar, which was the first appellate ruling of the Ontario courts germane to 

the ambit or scope of the statutory jurisdiction in partition, only made its 

appearance in 1884, and disclosed sharp differences of opinion in a strong 

Divisional Court of the Queen’s Bench Division. The facts were simple enough. A 

Crown grant had conferred upon Flora Bolton, the defendant, a simple and 

undivided life estate, with remainder to the defendants, her five children, in fee 

simple. Eight years later, with Mrs. Bolton quietly in possession of her life estate, 

the children (tenants-in-common of the remainder) were seeking an order of 

partition or sale, to dispossess her. A County Court judge, relying on the version 

of the Ontario Partition Act then in force, 96 ordered the sale; and the widowed 

mother of the petitioners appealed. 

The majority judgment (by Hagarty CJ, Cameron J concurring) was short and 

lucid. They allowed the appeal, assuring Mrs. Bolton that she could remain in her 

house, and that her children would not be allowed to unseat her. With thinly 

disguised outrage, the judges observed that “no such proceedings would have been 

91 

92 

93 

94 

95 

96 

(1886), 11 PR 452, (Ont HC). 

(1884), 5 OR 164, [1884] OJ No 211 (available on QL) (Ont HC) [Murcar]. 

(1897), 28 OR 595, (Ont Div Ct). 

Which, incidentally, had already provoked an embarrassing and ill-concealed difference of 

opinion in the Divisional Court ten years earlier in Fram v Fram (1887), 12 PR 185 (Ont CA). 


Supra note 35.


entertained for a moment in England, since there it had long been axiomatic that 

“only persons entitled to an estate in possession could maintain a suit therefor.” 97 

Nothing in the Ontario statutes, they said, should be considered as altering that 

position, for “of what is there to make partition There is no common interest or 

possession between [the mother] and those in remainder.” 98 Acceding to the 

arguments of the children in this case would have left each and every holder of a 

life estate or other limited interest exposed to the threat of being ousted at any 

time by remaindermen. The court held that despite the unguarded language of 

the statute, it should be read as extending the remedy of partition or sale only to 

those enjoying (or entitled to enjoy) immediate possession of the land. 

We are brought directly to meet the proposition that the Legislature have in a manner (to 

say the least of it) most indirect and inferential only, declared that an estate for life specially 

granted to an individual may be lawfully sold on the application of parties with whom she 

has no common estate or interest whatever, her possession and personal interest of it 

destroyed, and money presented to her in lieu thereof. 99 

The children’s claim, thus understood, was entirely unsupportable. Yet 

Armour J, in dissent, would have supported it and affirmed the order below. In a 

long and intermittently interesting judgment, his Lordship relates the statutory 

history of partition and sale in Ontario and concludes (not without some 

ingenuity) that since 1857, the “persons interested” sufficiently to advance a 

partition suit need not show an immediate right to possession, but would include 

anyone with a vested remainer or reversion. He would thus have affirmed the 

order for sale made below, in deference to what he considered the plain meaning 

and intendment of the currently prevailing Act. 

In fairness to Armour J’s view, it must be conceded that the breadth of s 8 of 

the (then) statute does, on its plain meaning, seem adequate to embrace the claim 

of a remainderperson. To say that “Any party interested in land” does not include 

a remainderperson is startling to those who spend their professional lives 

explaining to students that a non-contingent remainder, “vested in interest”, is 

indeed a present right to the future possession of the land. 

That said, the majority ruling in Murcar has never, to the best of my 

knowledge, been challenged by any later Ontario court. In 1897, the case of Fisken 

v Ife 100 gave the Queen’s Bench (represented, interestingly, by Armour CJ) an 

opportunity to deal with the converse of Murcar. This time, instead of the 

remaindermen seeking partition or sale against the life tenant, this case involved a 

life tenant (with a fractional share in the remainder) seeking partition or sale 

97 

98 

99 

100 

Murcar, supra note 92, at para 50. 



Supra note 93.


against the remainderpersons. Armour CJ, as he now was, refused, and a strong 

Divisional Court (Boyd C, Ferguson and Meredith JJ) affirmed his ruling. 

Chancellor Boyd, for the Court, gave the plaintiff tenant-for life (technically, 

a tenant pur autre vie), very short shrift. The governing statute, he explained, 101 was 

not intended to give locus standi to life tenants in possession to seek physical 

partition or sale of the land as a whole over the objection of reversioners. The case 

was just a converse of that in Murcar v Bolton, and as such, hopeless of success. 

This answer, consistent with the Murcar ruling, amounts to this – that only 

co-owners presently sharing possession a such can seek partition; not successive 

estate holders, whether it be a life tenant seeking partition against a reversioner or 

remainderperson (Fisken) or vice versa (Murcar). 

It is no doubt because of its tantalizing brevity – or at least, that of its only 

available report – that the little case of Re Asseltine 102 seems to have escaped 

comment, judicial or otherwise, in later years. Like Murcar, this case involved a 

group of persons (nephews and nieces of their adversary) who were collectively 

entitled to a half-interest in remainder, and now sought an order of sale against 

their aunt as life tenant. 103 The case was advanced upon alternative bases: (a) 

under the recently enacted Settled Estates Act of Ontario, 1895 104 and (b) under the 

then-current version of the Partition Act of that Province. 105 Ferguson J rejected 

both arguments: the former because the powers of disposition conferred by the 

Settled Estates Act were explicitly given only to life tenants, not remaindermen; the 

latter because only persons in possession could advance their claims (per Murcar) 

under the Partition Act. The case is worthy of remark, and I think admirable, in 

that both statutes were put forward, with no attempt to conflate them, and the 

requirements of each duly considered. Such precautions, and the very awareness 

of the settled estates legislation, had been conspicuous by their absence in the 

Murcar and Fisken cases. 

The next case in the sequence was really that of the Appellate Division of the 

Ontario Supreme Court in Morrison v Morrison, in 1917. 106 In this case, Mrs. 

Morrison, a widow, entitled as such to claim a life estate in her late husband’s 

lands by way of dower, was seeking partition of those lands as against his other 

heirs-at-law (the dead man’s brother, sisters and other close relatives). But at the 

time of her application, she had not yet made her election as between her rights 

101 

102 

103 

104 

105 

106 

Now the Partition Act, RSO 1887, c 104. 

(1902), 1 OWR 178. 

An even more speculative claim of the same type was advanced two years later, and dismissed 

with equal brevity by Falconbridge CJ, in Rajotte v Wilson (1904), 3 OWR 737. 

SO 1895, c 20. It was re-enacted as RSO 1897, c 71. 

RSO 1897, c 123. 

(1917) 34 DLR 677, 39 OLR 163 (Ont SC, App Div) [Morrison].


under the Dower Act and the general intestacy statute. 107 As such, she had no 

immediate right to possession and for that very reason alone, said the Court, had 

no right to compel partition under the Partition Act. The observations of Meredith 

CJ later in his careful judgment that Armour J had been wrong in his dissenting 

suggestion in Murcar that a remainderman still out of possession might compel 

partition are entirely consistent with that answer. 

The quite separate question, of whether only concurrent owners sharing a 

single estate, might seek partition (and not sole owners in consecutive-estate 

situations), did not arise in Morrison: for until such time as she made her election 

to be a life tenant under the Dower Act, or alternatively to be a tenant in common 

in fee simple with her present antagonists, no partition suit could be advanced by 

her in either of those capacities. Until then, the personal representative alone was 

entitled to possession, and no one had standing to seek partition. 

For a few years after Morrison, all seemed settled in Ontario; but dissension 

reared its head again in Bunting v Servos in 1931, 108 when a rare 5-judge Appellate 

Court was called upon to decide whether the parties, a brother and sister who 

were remaindermen of a farm property, might have partition as to that remainder, 

even though their mother, the life tenant in possession, objected. The brother 

sought such a remedy; the sister objected that, lacking any immediate right to 

possession, the Court lacked statutory jurisdiction to entertain the suit, quite 

apart from the life tenant’s opposition to it. The Court split 3:2 in affirming the 

order of the court below, and refusing an order for partition. Latchford CJ, 

Masten and Fish JJA all asserted that Morrison had correctly settled the issue, and 

that only persons entitled to possession of their shares in land could be entitled to 

partition. That disposed of the plaintiff’s case. In dissent, however, Riddell and 

Orde JJA, clearly unpersuaded by the authority of Murcar, Fisken and their 

congeners, sought to distinguish them on the grounds that in the case at bar, the 

life tenant was at no risk of being turned out of possession or interfered with in 

any way. They added that the plain wording of the Partition Act was sufficient to 

grant standing to a “person interested in land” without any insistence that he be 

in possession. This is the clearest example in the books of Ontario judges taking 

the “plain meaning” approach to the statutory test. But it did not prevail, and 

partition was denied. 109 

107 

108 

109 

The Dower Act, RSO 1914, c 70, and the Devolution of Estates Act, RSO 1914, c 119, respectively. 

[1931] OR 409, [1931] 4 DLR 167, (Ont CA). 

Some have felt, and feel still, that the majority ruling in Bunting is needlessly dogmatic, given 

that the life tenant did not face the prospect of disturbance in the enjoyment of her interest. 

That is the view of Dr. Heather Conway in her valuable work Co-Ownership of Land: Partition 

Actions and Remedies [London: Butterworths, 2000] esp. at 4: 25 (p. 51): she points out that Aho v 

Kelley, supra note 76, is of the same mind. Both Doctor Conway and the Aho case, however, are 

moved to their views not only by dissatisfaction with the rigidity of the orthodox position, but by


After Bunting, the dust was for some years allowed to settle on the law of 

Ontario, so far as this aspect of the law of partition was concerned. What is 

perhaps surprising is that quietude prevailed still in Manitoba, which, though 

equipped with virtually indistinguishable legislation (the present Law of Property 

Act, s 20(1) and its legislative precursors back to the original Partition Act of 1878) 

had produced not one single judicial reference to the issue through the entire 

sturm und drang of the Ontario debate. Then, in 1980, the moment finally came. 

In the celebrated case of Chupryk v Haykowski, 110 the Manitoba Court of Appeal 

had its opportunity to weigh in upon the issues we have discussed. 

The facts in Chupryk, and indeed its outcome, have a certain poignancy to 

them. Old Michael Chupryk was 87 and in poor health by the time the Court of 

Appeal delivered its judgment: and he had been embroiled in litigation for the 

previous six years. He was a widower, the courts having decided, not without some 

difficulty, that he was entitled under the Dower Act and his late wife’s will to a life 

estate in the urban double lot which the couple had occupied, plus a one-third 

share in the remainder, the other two-thirds of that remainder being vested in 

Mrs. Haykowski (Mr. Chupryk’s god-daughter and Mrs. Chupryk’s first husband’s 

niece). Mrs. Haykowski’s son John was executor and trustee, but during the course 

of earlier litigation it was decided that he should be removed, and replaced by the 

Public Trustee. As a Parthian shot, on the eve of his removal, John Haykowski, 

properly or not, 111 divested himself of the common law title, and both Michael 

Chupryk and Mrs. Haykowski thus became common law holders of their 

respective interests. 

The property itself was not an opulent one. It consisted of a double lot on 

Stella Avenue, half of which was largely occupied by a decrepit duplex building, 

formerly let to tenants, but now officially uninhabitable (though Mrs. Haykowski 

and her son had occupied it without paying rent for a while), and subject to 

outstanding work orders. At the rear of the other half of the property was a small 

stucco house where old Michael still lived. The value of the entire holding had 

been estimated in 1973 at about $13 000, and was self-evidently a wasting asset. 

Mr. Chupryk, however, had decided to show some initiative, and to raise the 

money needed – about $4,500, he thought – to repair and refurbish the duplex 

and its rental units, and restore its income-producing capacity. To achieve this 

end, he proposed to mortgage the property as a whole: that is, the fee simple. But 

how Mrs. Haykowski, the only other person with an interest in the property, was 

not in agreement with Mr. Chupryk’s plan, and wanted the whole property, 

110 

111 

the ruling of the Manitoba Court of Appeal in Chupryk, which I shall presently show to be 

heretical. 


The Court of Appeal took a dim view of his behaviour as trustee, but were perplexed as to what 

they might do to correct its consequences; which in the end proved ruinous for Mr. Chupryk.


duplex, little house and all, sold, with subsequent division of the proceeds. That 

was the substance of the present phase of litigation. By what mechanism, if any, 

could the life tenant Mr. Chupryk secure a mortgage for the fee simple over the 

objections of his remainderperson 

If the trust had been still in existence, an easy avenue would have been 

available to resolve the issue; for by what was then 112 s 60(1) of the Trustee Act, 113 

the Court of Queen’s Bench had general powers to confer on any trustee the 

authority to make any mortgage or other disposition expedient for the good of the 

property. Indeed, by s 60(3) the appropriate application might be made by “any 

person beneficially interested” – but only if the property was “vested in trustees”. 

Where did that leave Mr. Chupryk, now that the trust had been erased 

Could he still, somehow, gain access to the section 60 powers In a judgment of 

great resourcefulness, Kroft J, at first instance thought he could. The termination 

of the trust had, in his view, been improper. So, though his Lordship didn’t quite 

express it this way, he took the position that “equity looketh on that as undone 

which ought not to have been done”, and deemed the shattered trust to be reconstituted, 

with the Public Trustee in charge of it. He proceeded to deem the 

Public Trustee to have made the appropriate application to authorize the desired 

mortgage; and declared that it was just and equitable to do so. Mrs. Haykowski 

appealed. 

Her appeal was doubly successful. Mr. Chupryk was denied the approval he 

needed to secure the mortgage, and a sale of the entire property was ordered, 

under the “partition” sections of the Law of Property Act, at the behest of Mrs. 

Haykowski, with the result, one must surmise, that old Michael Chupryk was 

deprived of his modest home and almost certainly his independence. O’Sullivan, 

JA, one must suppose in some ghastly spirit of consolation, noted that “In the 

circumstances, Mr. Chupryk may have a claim against the executor for accounting 

on the footing of wilful default.” 114 But the outcome was tragic for this elderly 

man, whose only error had lain in making known and putting in issue his intent 

to improve the property. 

His failure to secure approval for the mortgage is a matter collateral to the 

purpose of this article, and can be quickly explained. Kroft J’s ingenuity in 

resurrecting the trust did not find favour in the Court of Appeal. 115 So the Trustee 

Act powers must be considered to have passed irretrievably out of Mr. Chupryk’s 

reach. Further, Kroft J’s belief that as a judge in equity he might possess inherent 

112 

113 

114 

115 

Now CCSM, c T160, s 58(1) as of December 2 nd , 2011. 

RSM 1970, c T160. 


Like the splendid but alas, apocryphal Lord Mildew, in Travers v Travers (unrep) cited by A.P. 

Herbert, Codd’s Last Case (London: Methuen & Co Ltd, 1952) at 80: “There is too much of this 

damned deeming.”


or residual powers to authorize such transactions as were here proposed received 

short shrift in the Court of Appeal. The Court did look at the possibilities of the 

old English Settled Estates legislation, but found (quite correctly) that no such 

legislation as would assist Mr. Chupryk in getting his mortgage had ever passed 

into Manitoba law. In the course of their reasons on this issue, they made, I 

would submit, albeit by way of obiter dictum, an egregious mis-statement of the 

general law of settled estates in Manitoba, an episode which I have already 

discussed at length in this volume. 

So the long and the short of it is that Mr. Chupryk was denied his mortgage. 

But look at what happens next; Mrs. Haykowski is granted an order for the sale of 

the property, and this is done, as noted above, on the purported authority of the 

Law of Property Act, ss 19-23 – the “partition and sale” provisions of the statute. So 

we have here an instance of sale (in lieu of partition) being granted at the suit of a 

remainderperson over the resistance of a life tenant. The issue is complicated by 

the Court’s assertion that, by this stage in the litigation, 116 old Mr. Chupryk had 

apparently abandoned his opposition to selling the property. Whether this 

represented a true acquiescence, or merely a symptom of litigation fatigue or a 

fatalistic surrender to the inevitable, it is hard to say. If indeed the parties agreed 

that sale was the best solution, might it not have been achieved consensually 

It may be worthy of note, too, that Mr. Chupryk’s share in the remainder was 

neither here nor there: nor did the Court treat it as in any way significant. This 

was a case of a remainderman seeking sale (in lieu of partition) against a life 

tenant, and would have been decided in just the same way if it had been a sole 

remainderperson (and by definition not a person in possession) seeking such 

liquidation of the life tenant’s interest. 

Manifestly, such a claim to an order of sale flew directly in the face of the 

Ontario cases we have considered: cases which dealt with an essentially identical 

statutory provision, and had consistently denied such relief or remedy to 

remaindermen 117 (as had the English law, for that matter). 

It remained to be seen, of course, how the Ontario courts would respond or 

react to this offering from Manitoba. In Garnet v McGoran, 118 Maloney J gives no 

suggestion that anything in the partition law of Ontario has changed since 

Bunting, or indeed since Morrison in 1917. Mr. and Mrs. McGoran, joint tenants 

of what appears to have been the family home, had run into trouble. Mr. 

116 

117 

118 

Mr. Chupryk and Mrs. Haykowski, and their indefatigable counsel, had over the previous six 

years been twice before the Court of Appeal and even after the present proceedings two 

determined efforts were made to take matters further. The Court of Appeal denied leave to go to 

the Supreme Court of Canada: (1980) 110 DLR (3d) 108n [Freedman CJM]; but the Supreme 

Court thereafter granted such leave: (1980) 33 NR 622. 

Such a claim obviously defies the authority of Murcar, among others. And in allowing it, the 

Manitoba Court of Appeal was quite explicit in rejecting that line of authority. 

(1980), 32 OR (2d) 514, 18 RPR 208 (Ont SC).


McGoran, unbeknown to his wife, had mortgaged his half share to Garnet, and 

gone into default. Garnet was now seeking to enforce judgment against the 

affected half-share, and now sought partition and sale. Mrs. McGoran 

understandably objected and sought various relief, including rejection of the 

mortgagee’s application for partition. Maloney J agreed with her and emphatically 

rejected Mr. Garnet’s claim, founding himself explicitly on his Court of Appeal’s 

ruling in Morrison v Morrison, 119 and its insistence that only a person “entitled to 

immediate possession of an estate” in land could be allowed to seek its partition. 

Mr. Garnet would have to overcome various hurdles, several of them vigorously 

erected by Mrs. McGoran in still-pending proceedings, before he could assert the 

kind of possession that could give him locus standi to seek partition. Chupryk, 

which might be thought to militate against this position, was neither discussed 

nor even mentioned. 

Two years later, though, the case of Morris v Howe 120 came before Dupont J in 

the Ontario High Court. Mrs. Morris, the applicant, was tenant for life of the 

family farm under her late husband’s will, the remainder being devised to his 

sister. Now the life tenant sought partition and sale because she found the upkeep 

of the property expensive and tiresome. The remainderperson objected that the 

dead man had wanted the property to remain in the family, just as she looked 

forward to leaving the property to her own children. There was no “co-ownership” 

element in the case at all; just a life tenant in possession seeking to sell the 

property and partition the proceeds over the objections of the remainderperson. 

That, of course, flew directly in the face of Fisken v Ife, 121 eighty-five years before; 

and Dupont J was quite firm in rejecting the application, even though Chupryk v 

Haykowski had been pressed upon him. His reasoning was lucid but nuanced: 

I do not think that where, as here, land is subject to consecutive interests of a sole life 

tenant and a remainderman, this Court can or ought to grant the life tenant an order the 

effect of which will be to defeat the remainderman’s interest in the lands without his 

consent and against his reasonable opposition. I find that the respondent’s opposition to 

sale of the lands is reasonable, having regard to all the circumstances. I leave open for 

119 

120 

121 

Also, the older case of Mulligan v Hendershott, (1896), 17 PR 227, 1896 CarswellOnt 60 (WL 

Can) citing the still more venerable judgment in Train v Smith (14 th April 1875), unreported, 

(Spragge C). Maloney J’s judgment in Garnet was tersely affirmed on appeal: (1981), 32 OR (2d) 

514, 122 DLR (3d) 192, (Ont SC), though Krever J’s judgment expressly declined to express an 

opinion on the applicability of Mulligan v Hendershott to the case at bar (para 12). Garnet v 

McGoran is applied in the later cases of Toronto Dominion Bank v Morison, (1984) 47 OR (2d) 524 

(Ont Co Ct) and Royal Bank v Mayhew, (1995) Carswell Ont 3664 (WL Can), (Ont Gen Div) 

McDermid J. 

(1982), 38 OR (2d) 480, 138 DLR (3d) 113 [Morris]. 

Supra note 93.


future consideration factual situations where it can be concluded that such opposition is 

not reasonable. 122 

If that means that Dupont J believed that he had jurisdiction under the 

Partition Act to grant partition or sale at the behest of a sole life tenant against a 

sole remainderperson, and that only the “reasonable opposition” of the latter 

would preclude the exercise of his discretion to that end, I would respectfully 

disagree. The binding authority of Fisken v Ife would seem to run contrary to the 

use of the Partition Act to compel sales as between consecutive owners simpliciter, 

though the Settled Estates legislation in Ontario 123 might legitimately be used for 

that purpose. Dupont J’s tentative language may have been used to soften the 

impact of his clear rejection of the Manitoba Court of Appeal’s analysis in 

Chupryk. In truth, the whole tenor of the rest of his Lordship’s judgment is to the 

effect that the Partition Act simply has no application between consecutive estateholders. 

Thus we find him saying: “I do not think I can give the applicant the 

order she seeks. In my view a sole tenant for life cannot apply under the Partition 

Act for sale of the estate ... Fisken v Ife.” 124 And again: “To the extent that [Chupryk] 

may be seen as authority for the propositions that a life tenant may obtain sale of 

land over the opposition of a remainderman, or that one of several remaindermen 

may obtain partition (and hence possibly sale) of the lands before the remainder 

has fallen into possession and without the consent of a prior life tenant, Lalor and 

Bunting v Servos establish that the law of this province is to the contrary.” 125 The 

succinct pronouncement of the headnote writer seems just: “There was no 

authority under the Partition Act, RSO 1980 c 369 to order partition at the suit of 

a sole life tenant against the reasonable opposition of the remainderman. The Act 

applied only to concurrent, not to consecutive interests.” 126 

In Morris v Howe, then, we see Chupryk confronted and finally rejected by the 

Ontario High Court. True, Dupont J offered his comforting opinion that the 

conflict between the law of Manitoba and Ontario “may be more apparent than 

real,” 127 given that “The essential fact in Chupryk was that all the parties interested 

in the land desired sale.” 128 That premise, which may as I have indicated be taken 

cum grano salis, does not really disguise the jurisprudential rift which has opened 

up between the two provinces. 

122 

123 

124 

125 

126 

127 

128 


As to which, see my “Unsettled Estates” paper earlier in this volume. 



Ibid at 480. 


Ibid.


VII. 

CONCLUSIONS 

Morris puts beyond debate several propositions which were already apparent 

from the foregoing discussion, namely: “That the provisions of ss 19-26 of 

Manitoba’s Law of Property Act are “essentially identical” to those of [Ontario’s] 

Partition Act”. 129 Despite this, the Ontario Partition Act applies only as between the 

holders of concurrent interests, as distinct from consecutive ones, whereas in 

Manitoba, Chupryk flatly denies this. 130 In Ontario, abundant authority shows that 

only a claimant in physical possession of the land, or the immediate right to such 

possession, may seek partition or sale in lieu thereof. Chupryk v Haykowski flatly 

rejects that view in Manitoba. 

It is idle of course, to enquire which of these approaches is “right”. It 

depends upon whether one prefers a “plain meaning” interpretation of the shared 

language of the respective statutes (which might well support the Manitoba view) 

or a more historically-sensitive, contextual or “essentialist” construction (which 

would favour the Ontario position). I would merely note that 

a) The Manitoba doctrine in Chupryk seems to have been adopted in 

ignorance or disregard of the existence in Manitoba of “Settled Estates” 

legislation (admittedly of a rather recondite kind) which might, had it 

been acknowledged, have deterred the Court from “stretching” the 

function accorded to the partition legislation. 

b) To allow, as Chupryk does, that partition or sale may be effected between 

consecutive owners, creates difficult conundrums of valuation. 

c) The result of Chupryk will be that in Manitoba only a sole fee simple 

owner in possession of land will be immune from the efforts of other 

interest-holders (however small, and however distantly suspended in 

futurity their interests may be) to unseat them. Only the Court’s 

discretion stands between them and the liquidation of their tenure. 131 

There will be some whose response to the situation outlined in this paper will 

be “so what If an unrestricted right to seek partition or sale is made available 

under the Law of Property Act, and simply renders redundant the powers of sale 

previously available under other statutes, what harm can there be in that; 

129 

130 

131 

Morris, supra note 120, at 484. 

Per O’Sullivan JA: “I agree with my brother Matas that the Law of Property Act... covers successive 

interests, as well as concurrent interests, in land.” Supra note 69 at 554. 

There are limits to the utility of reductiones ad absurdum, but the English case of Dodd v Cattell, 

supra note 77, gives food for thought. O’Sullivan JA’s reflection in Chupryk, ibid, that “In the vast 

majority of cases, application of the provisions of our Law of Property Act can do justice as 

between owners of successive interests, since they will have money in lieu of money’s worth” 

seems question-begging and provocative. The questions it raises will be revived and discussed in 

my third note in this series to appear in a forthcoming number of this journal.


especially if the courts in Manitoba are always alert to use their discretion to 

prevent potential hardship” To that I would respond firstly, that so radical a 

change in the scope of the partition/sale remedy, brought about almost in a 

somnambulist fashion by judges seemingly unaware of the broader statutory 

picture, does not necessarily conduce to clarity of analysis in the law of real 

property. It may be worth reflecting that the relationships between consecutive 

estate-holders (e.g. life tenant and remainderman) and that between 

contemporaneous co-owners (joint tenants and tenants-in common) have always 

been governed by a quite different dynamic. As between life tenant and 

remainderman, there exists a fiduciary duty owed by the former to the latter: the 

classic Manitoba instance being Mayo v Leitovski. 132 It is not obvious that the life 

tenant’s fiduciary duty can easily be reconciled with a supposedly co-existing right 

to seek partition of the land, or its sale, over the protestations of the 

remainderman. It is true that such sale may be authorized by the court under the 

aegis of other statutes, 133 but only under certain conditions and not merely for the 

satisfaction of the personal caprice or cupidity of the life tenant. 

As for the converse situation (that actually involved in Chupryk), it is 

inconsistent with our law’s usual reluctance to disturb an occupant in possession, 

or to tolerate the liquidation of the possessory interest of a sitting life tenant, by 

recognition of a remainderman’s power to compel sale. If the remainderman 

actually sought partition, upon what principles, one wonders, could a court 

authorize the demarcation of appropriate lines of division Even assuming a piece 

of land that is featureless and of even quality, how would one fairly express in 

spatial terms the temporal division between a life tenant’s temporary possession of 

the land, here and now; and the remainderman’s prospect of securing at some 

uncertain future date, the remainder of the fee simple Crudely put, how could 

one express this temporal division in acres or hectares, even with the assistance of 

skilled actuaries Is this really an exercise the courts would wish to undertake 134 

If, as in Ontario, partition and sale remedies may be invoked only by joint 

tenants or tenants in common in possession, most of those conceptual brainteasers 

disappear. As between such co-owners, there is no fiduciary relationship. 135 

The sizes of the parties’ respective shares are known or readily ascertainable; and 

the aim and end of the law is simply to give each party his strict dues, with due 

132 

133 

134 

135 

[1928] 1 WWR 700, 1928 CarswellMan 21 (WL Can). 

e.g. the Settled Estates Act, 1856, (UK) 19 & 20 Vict c 120, s 11. 

In Winspear Higgins Stevenson Inc v Friesen, [1978] 5 WWR 337, 5 RPR 81, (Man CA), we see 

O’Sullivan JA recoiling at the prospect of even making a fair monetary evaluation of a wife’s 

inchoate dower rights in the context of a sale in lieu of partition between co-owners: a task 

several degrees simpler than the puzzle here presented. 

See Kennedy v De Trafford, [1897] AC 180, (UK HL) and Re Nunes and District Registrar (Winnipeg) 

(1971), 21 DLR (3d) 97, [1971] 5 WWR 427.


regard to the statutory, common law and equitable rules governing the settlement 

of accounts between them. 136 

It is difficult to avoid the conclusion that in Chupryk the Manitoba Court of 

Appeal unwittingly wandered off course and thereby introduced into our law a 

needless element of complexity, absent from the law of Ontario. Perhaps in doing 

so, they were seduced by misapprehension of the state of Manitoba’s law of settled 

estates. But that tale has already been told. It now remains to be examined how, 

just two short years after Chupryk, the law of real property, as it relates to 

consecutive estates was a properly revolutionized by the advent of the Perpetuities 

and Accumulations Act in 1983: a statute which may be seen as making almost 

redundant the earlier legislation on settled estates, while creating, at the same 

time, perplexities for those who administer Manitoba’s land titles system. To these 

and other issues I hope to return presently in another short article. 

136 

As helpfully explained in Osachuk v Osachuk, (1971), 18 DLR (3d) 413, [1971] 2 WWR 481, 

(Man CA).


Interview with Donna Miller 

D O N N A J . M I L L E R , Q . C . * W I T H 

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

I. 

LAW SCHOOL: 1974-77 

BPS: In your humble beginnings at Robson Hall, was that still a time when 

the program involved part-time work with a downtown firm or had we already 

become an academic law school 

DJM: We had already become an academic law school; in fact I think that 

transition happened around 1970. 

BPS: And Cliff Edwards, who did the transition, was your Dean 

DJM: He was the Dean, he taught us Legal History and Contracts. Phil 

Osborne was one of our professors; John Irvine was another, as was Trevor 

Anderson. So some of the backbone of the law school was already part of the 

Faculty. 

BPS: Most people now might only recognize Cliff as the bronze bust in the 

library. He was certainly the longest serving Dean and one who made a pivotal 

transition. Is there anything that you could tell us that could put some life to the 

statue What kind of a dean and classroom teacher was he 

DJM: As a classroom teacher I think there were very few superior to Cliff 

Edwards. He was a fantastic teacher. He seemed to know all the students’ names 

right from the get-go. A classic teacher, very much focused on case law, but also 

really wanting to see students acquire the art of legal thinking. I would put him as 

one of our best instructors. He was a very professional person and he certainly 

wanted to capture a certain kind of culture in the Law School, a culture of 

professionalism. Very serious-minded and for the most part I would say there was 

a strictness to him, a no-nonsense attitude. 

BPS: In terms of student democracy, was there any at that point Would 

students be consulted about programming or special guest lecturers, or did the 

* 

** 

Executive-in-Residence, Manitoba Institute for Policy Research; former Associate Deputy 

Minister of Justice for Canada (2005-2010). 

Professor, Faculty of Law, University of Manitoba; Co-Editor-in-Chief, Manitoba Law Journal.


professional teachers and Dean determine the shape of the programming and you 

would be informed but not necessarily involved 

DJM: I think for the most part the faculty ran the school. There was an 

association of law students, who had some participation on some issues but 

generally it followed the culture of that day, which was pretty hierarchical. 

BPS: In terms of what you would find in the classroom, were a lot of teachers 

using the Harvard model of case law and Socratic teaching at that point 

DJM: Very little Socratic teaching, very much a lecture approach. As we do 

now, the school relied heavily on practitioners from downtown to supplement the 

Faculty’s teaching. I would say overall the full-time faculty were better at their craft 

and I guess one would hope that would be the case. I think that when I look at 

how law is taught today there is more of a practical, clinical approach overall. But 

there was not that much of a difference, Bryan, between how law was taught then 

and how law is taught today. 

BPS: From your point of view as a lawyer who spent much of her time in the 

policy-oriented departments, would there be discussion of broader policies behind 

the law in areas like constitutional and family, or was the classroom more 

doctrinal and analytical Or was it more like today, where you get some policy and 

some reflection 

DJM: I think the slant was somewhat in favour of the doctrinal approach, less 

questioning, less probing. There were definitely aspects of my public law work that 

were developed later in my career rather than in the classroom. 

BPS: Another part of your career was doing a tremendous amount of writing 

with the Manitoba Law Commission. Did you get much practice at writing and 

research in law school 

DJM: It was pretty much hundred-percent final exams for all the courses. So 

the capacity to write clearly and those kinds of skill-sets weren’t developed too 

much at the law school. 

BPS: I am of such vintage that I started law school before there was a Charter, 

as you did, and in those days we didn’t spend a lot of time talking about human 

rights and the balance between governmental interest and individual minority 

rights. 

DJM: Yes, I don’t recall a conversation of that sort [laughing]. 

BPS: Another revolution that came to the law school is that now you find 

close to 50% of the faces in the classroom are women. Were there women 

teachers at the time, women students Or were you very much a minority at that 

time 

DJM: I started law school in 1974. We were the first law class to have a 

significant percentage of women in our class – I think something like 25-30 

percent of the class were women. Two years before us I think there were around 7 

or 8 women in the class. In terms of the Faculty, Linda Vincent was on the 

faculty, as was Janet Baldwin, but there were very few other women. We were just

Interview with Donna Miller 251 

on the ground floor of the notion that women had equal credibility in the 

profession, that we could become strong experienced counsel and an integral part 

of the profession. 

BPS: To put it directly, why were you in law school I was in law school 

because I was getting lonely in physics. I didn’t know if I wanted to be a practising 

lawyer, I didn’t know what I wanted to do with the degree. Did you have a sense 

of a career path when you went to law school 

DJM: I did, and the career I’ve had is nothing what I thought it would be. I 

went into law school because I thought I wanted to be a journalist writing on the 

law, but I never got into journalism. The best part of my legal education was my 

articling year. It helped to give me some sense of what I wanted to achieve and 

where I wanted to go in my pursuit of law and the practice of law. It helped 

develop my understanding of law, more so than what I learned within the 

classroom setting itself. 

Don’t forget in those days there was no real clinical practice of law within the 

three years of law school, it was almost all principles, all theory. That is an 

essential part of legal training, but it is not the exclusive component. So the 

articling year helped to bring all the principles into some sense of coherent whole 

for me. 

BPS: In that year did the women in the law school feel that because there 

were now a significant proportion of women law students, that they were just law 

students like the rest, or was there still a sense of being pioneers who were facing 

special challenges as women in the practice of law. 

DJM: We didn’t think of ourselves as pioneers at all. I think in fact, looking 

back at the time of the early 70s, women were coming into their own across all of 

the professions, finally becoming not just an exceptional part of those professions 

but an integral part. We didn’t think of ourselves as pioneers in law, we were part 

and parcel of the student body along with everyone else. And in those days we 

were very idealistic for the most part – I certainly was. If you asked why I was in 

law school, one reason as I mentioned was to pursue legal journalism, but another 

reason was because I had this great hope that I could help to make a more just 

society, and I think actually most of us had that aspiration. 

BPS: Another difference you would see in law school today is a very 

significant proportion of Aboriginal students. Were there any Aboriginal students 

when you were in law school 

DJM: In fact two of my classmates were Aboriginal. One was Ovide Mercredi, 

who eventually became the Chief of the Assembly of First Nations in Canada, and 

another was Marion Ironquill-Meadmore, who I believe became the first woman 

of First Nation descent to be admitted to the bar in Canada. Ovide and Marion 

were pioneers, they were certainly among the first. 

Years later, when Ovide was head of the Assembly and I was the Manitoba 

official on Senate reform throughout the Charlottetown Accord constitutional


process, he and I crossed paths many years after our law school days. I asked 

Ovide if he recalled a conversation that took place in the University College 

cafeteria, where one of our classmates turned to Ovide and said to him, “Ovide, I 

think you’re going to be the Chief Dan George of our generation, you are going 

to assume some fantastic role representing First Nations in our country.” And 

while Ovide didn’t remember that law school conversation, he and I had a bit of a 

chuckle knowing that it was a pretty accurate prediction of what would eventually 

come. 

BPS: But while Ovide did become National Chief, he never got to do work in 

the movies with Dustin Hoffman. So it sort of worked out, and it sort of didn’t 

[laughing]. 

DJM: [laughing] Maybe that’s still yet to come. 

II. 

ARTICLING AND PRIVATE PRACTICE: 1977-1979 

BPS: Now your time during the mandatory articling one year period, was 

there a bar exam before, during or after 

DJM: We had bar exams throughout the year. Friday was set aside for the bar 

admission course down at the Law Society premises on Carlton St. We had seven 

or eight exams throughout the course of our year. 

BPS: Was it a tough process in those days Was there a significant failure rate 

in the exams or was it more like modern times where pass rates are pretty high 

DJM: Pass rates were pretty high. 

BPS: Did you find that the bar exam courses taught you stuff that was missing 

from your law school curriculum in terms of nuts and bolts and procedures and 

motions and that kind of stuff 

DJM: Yes, it was much more of a clinical approach, much more nuts and 

bolts as you say. It rounded out the legal principles we were taught here at Robson 

Hall. 

BPS: So you articled at Richardson and Company – the mega business here 

in Winnipeg 

DJM: No, this was a mid-sized firm with Reeh Taylor, Charlie Huband, Garth 

Erickson, Glenn Sigurdson and Richard Deeley, amongst others. It was a very 

good firm, which evolved into other firms later such as Taylor McCaffrey and 

Deeley Fabbri Sellen. I recall it was one of the most sought after articling positions 

because Butch Nepon, who was part of the faculty at that time, advised our third 

year class on articling positions. He was counsel to the firm and spoke very, very 

highly of it. I was called to the bar and spent a year there as an associate, and 

basically it was a good experience. 

BPS: That would have been a general practice You didn’t specialize as much 

in those days


DJM: No, it was very much a general practice, a little bit of family law, a little 

criminal, a little commercial, a little general litigation. It was a good foundation. 

And there was still no Charter. 

BPS: Nowadays when law students article the big thing is work-life balance. 

They say that the way you motivate and incentivize now is that you give employees 

a day off instead of more money. People want to have a life as well as work. Were 

you still at a time where the articling student was expected to be there at the crack 

of dawn and leave late in the evening and it was taken for granted you would 

work hard for apprentice wages 

DJM: That was pretty much the culture. You were expected to work hard and 

certainly not adhere to any kind of nine-to-five routine. It was very much expected 

that you did the work, you did it as quickly and as effectively as possible and you 

were on call. It wasn’t 24-7, there was some balance, but we were expected to 

respond quickly and effectively to demands whenever these arose. 

BPS: I would think one difference between then and now is that with the 

new technology of cell phones and the internet you can reach your lawyer at any 

time; and people think because of this that their lawyer can do the work and send 

it back almost instantaneously. In those days you couldn’t be tracked down and 

when you were away from work you were away from work for a while. 

DJM: That’s right and one piece of advice I remember early on getting from 

my principal was that it was good performance to return a call the same day and 

to respond to a letter within a few weeks. Today, people expect an instant 

response 24-7. So in that respect it was a slower pace, but I think there was greater 

time to reflect then and perhaps more of a focus on the quality of the product as 

opposed to process. 

BPS: In our internet and e-commerce course we read a book called Digital 

Barbarism about that difference. 1 The author, Mark Helprin, also gives us a 

hypothetical picture of a diplomat of the 20 th century who only writes a few letters 

a week, spends hours on each letter and has time for deliberation. I guess it was 

very much a different time technologically. I suppose the culture of the law firm 

would have been very hierarchical in those days 

DJM: Yes, but also a sense of professionalism and camaraderie. The most 

senior counsel was Reeh Taylor and he was very hands-on; he would bring me 

into meetings with clients even as an articling student. I remember he had this 

initiative the year I was articling; he wanted to revise all of the wills and estates 

precedents the firm used for clients. He would organize breakfast meetings that he 

would chair that I would attend. There was very much a sense of passing on and 

sharing knowledge, and the notion that law was of a higher calling. 

BPS: So in that style of practice and pace of life, even though you were very 

busy, people would make the time to do some real education and mentoring 

1 Mark Helprin, Digital Barbarism: A Writer’s Manifesto (Harper, 2009).


DJM: Absolutely. 

BPS: When I came to Manitoba a few years after that, the litigation giants still 

walked the land and this sort of adversarial, very theatrical approach to litigation 

still prevailed. You had very strong personalities, real performers, who loved the 

battle, though they weren’t unfriendly to each other “offstage”. But if you had a 

case you expected it would go to trial and the trial would last a couple of days. 

There wasn’t an assumption of settling or mediation. 

DJM: Very much so. The generation ahead of us defined their own style of 

litigation and included some of the all-time great trial lawyers in the life of our 

profession here in Manitoba. I’m not sure today if we have trial lawyers of that 

calibre because we don’t get to develop the level of courtroom experience today 

that our predecessors had. But the Darcy McCaffreys, the Knox Fosters, these 

were lawyers that represented a different brand of lawyer – the honour was there 

but there was also an element of theatre. 

BPS: I was involved with one of Darcy’s last trials. Only a few big pieces of 

litigation go to trial anymore and you could see Darcy’s charisma even at the end 

of his career. You had a sense you were almost watching somebody on stage. I 

don’t have the sense that the modern litigators have that kind of approach and 

personality... and most of the time they aren’t actually getting to court because 

most of the cases now are settled. One of the reasons most of the cases now are 

settled is a culture which emphasizes dispute resolution and mediation. Another 

one is that costs of discovery are often prohibitive. Were the rules as generous 

with respect to pre-trial discovery then Did you go through that whole pre-trial 

process as they do now I know the economics of that is one of the things that 

puts an end to a lot of the litigation. I always say that discovery is when you 

discover you can’t afford it. 

DJM: The level of pre-trial discovery certainly wasn’t as high. What was also 

different then was the court’s management of cases. The courts were just starting 

to really actively manage cases when I started. They were just starting to get into 

the pre-trial meetings to look to see whether or not cases could be resolved. Some 

of the old guard of the profession didn’t adhere well to the new rules. 

BPS: What about your experience in the courtroom Legend has it that as a 

junior in Manitoba in the older days, you got yelled at a fair amount by the 

judiciary. You brought your motion and as a rite of passage you would get yelled 

at for missing a comma, or using this word when the Latin would have been more 

satisfactory. The Court of Appeal was quite famous and celebrated (or notorious) 

as quite a combative place. Did you experience any of that in court 

DJM: I wasn’t in the Court of Appeal until somewhere around the mid-to-late 

80s so I can’t speak about the earlier days. In so far as the Queen’s Bench or the 

Provincial Court is concerned, I found for the most part the judges were 

respectful. I think there might have been a couple of times where I felt I was 

unjustly treated because I was a junior counsel but I usually didn’t respond well to


those occasions. I didn’t normally give the judge too much room because I felt 

that it was my due, as it is everyone’s due, to be treated with respect. 

III. 

LAW REFORM COMMISSION: 1979-1986 

BPS: So you did litigation old-school as an articling student and as an 

associate for a year, and then you decided to do something very different, and 

went to the Manitoba Law Commission, where Dean Cliff Edwards was Chair at 

the time. 

DJM: Yes he had just been appointed chair and he had been promised a 

much more developed staff at the commission. He was looking to hire and it was 

a good choice, and I’m glad I took that position on. I started as a legal research 

officer and when I left I was something called Chief Legal Research Officer. 

Essentially my job was to research and write but it was a little bit more than that, 

it helped to develop my analytical skills. I mentioned earlier about going into law 

school to try to create a more just society, and I felt we did some of that with the 

reports I helped to write. We weren’t addressing the macro issues of poverty or 

some of the most significant social issues but I think our reports ultimately did 

have some impact on law and equity. 

I remember helping to write a report on small claims, as well as another one 

on making the law more accessible to Manitobans. I wrote a report on the rules of 

practice and procedure for administrative tribunals, trying to enhance, again, 

access to justice. I wrote a report on organ transplant laws and how to enhance 

the capacity for Manitobans to donate organs and in what contexts; I also wrote 

on equity issues within the family, for example, on enhancing the rights of 

surviving spouses. It was a very active era for law reform. Cliff had so much 

credibility with the governments of the day and I think that was partly why we had 

one of the highest percentages of implementation of our reports anywhere in the 

Commonwealth, with something like almost 90 percent of our reports being 

implemented into legislation. 

BPS: 90 percent would be off the chart in this province today. That’s 

remarkable. Did Cliff and the board choose the agenda, or did the government 

say, “Wouldn’t it be great if you had a look at this” 

DJM: It was a combination. The attorney-general had the right under 

legislation to refer issues to the Commission. Our report on administrative law, 

for example, was something the government asked us to look at, but many others 

came from either Cliff or the other commissioners. We had some tremendous 

commissioners. Aside from Cliff, there was Trevor Anderson, John Irvine, Knox 

Foster, Gerry Jewers, to name a few. These were people who really cared about law 

reform. Not only did they read the reports in draft but they really got involved 

and rolled up their sleeves. They were very passionate about law reform.


BPS: You mentioned at the beginning that you were interested in doing legal 

journalism. I’d think that being able to write for the law commission was almost 

perfect in terms of matching that aspiration. Law reports have to be written for 

the general public, they have to be clear, they have to be comprehensive yet 

concise, they’re not written for a narrow audience of lawyers and litigants. I’ve 

read some of the reports from those days and they are very readable and clear. Did 

you find that there was a different culture of writing in private practice Had the 

plain English movement made any traction in your practice of the day Or was 

there an emphasis, on sounding lawyerish in practice as opposed to the Law 

Commission 

DJM: In fact, the year that I articled, there was a movement toward plain 

English within the law firm led by Reeh Taylor, which focused on revising the 

firm’s wills and estate precedents to reflect plain English. That was his passion, to 

ensure that the will resonated with the client, that it used the language that the 

client would understand and was personalized according to that client, as opposed 

to the language that was historically used in precedents. So the plain English 

movement had started by the late Seventies with that as an example. 

I hadn’t thought of the analogy between journalism and law reform, but 

there is one. Certainly one of our objectives in writing those reports was to 

enhance access to law and access to justice, trying to simplify, to distil law, so as to 

make it understandable. 

BPS: You were six years at the Law Commission and it sounds like the 

reports are a palpable legacy of what you accomplished there. Were there any 

expectations that the Law Commission movement was peaking and that 

governments would be less interested in it in the years ahead 

DJM: I had none of that, for me it was just time to move on. I felt that when 

you looked at the spectrum of issues I had researched and written about, I had 

developed a skill set and it certainly had been a terrific experience, but that it was 

just time for me to move and try something else. 

IV. PROVINCIAL JUSTICE – CONSTITUTIONAL LAW: 1986-1999 

BPS: You’ve done that a number of times in your career, which is one of the 

reasons why this is so interesting. Your next stop was with the inaugural 

Constitutional Law Branch. Now there is a Charter and government is excited 

about it and thinks there is going to be a lot of business. How did you get 

recruited for that Were you actively pursuing it 

DJM: There is actually a bit of a story behind that. I was first introduced to 

constitutional litigation as a result of my work in administrative law at the law 

reform commission. Because of that law reform work, I became quite 

knowledgeable about the kinds of tribunals we had in Manitoba and their rules of 

practice. And so I was recruited by the Manitoba Government to research and


prepare an affidavit for the second hearing in the Manitoba Language Rights 

Reference in November 1985 2 addressing the scope of the work to re-enact in 

both languages all of the rules of practice and procedure of administrative 

tribunals in the Province. 

The following spring, the Constitutional Law Branch was created when 

Roland Penner was Attorney General. Up to that time, constitutional law issues 

had arisen but they were either dealt with by lawyers retained from private 

practice or by Crown counsel on the side of their desks. So when the 

Constitutional Law Branch was created in 1986, I applied for a position, was 

interviewed and hired. It was a terrific experience again. We were on the ground 

floor of Charter adjudication. My first day on the job, the Supreme Court came 

down with R v Oakes 3 which of course defined Charter adjudication not only then 

but continuing to today. 

BPS: So out of that Oakes many saplings grew 

DJM: Indeed [laughter]. There was Charter, s 7 litigation, fundamental 

freedoms issues – it was litigating all of the Charter rights as well as minority 

language rights. I continued to be involved in Charter litigation and minority 

language litigation at the Supreme Court and I was lead counsel on a number of 

those cases. The practice involved a panoply of constitutional law issues, not just 

litigation. We were the constitutional litigators, but we were also designing policy 

for the Government to try to adhere to the Charter of Rights protections, to try to 

adhere to constitutional values. The work that I had done at the Law Reform 

Commission obviously came in handy in designing policies and providing advice 

to governments with respect to public law. So it was litigation, it was legal and 

policy advice, it was constitutional reform. I had mentioned before that I was the 

Senate reform advisor for Manitoba throughout the constitutional talks leading to 

the Charlottetown Accord, and I was also involved in the final round of Meech 

Lake. Not directly, but we provided advice to Premier Pawley through our director 

at the time. So we were involved in many aspects of constitutional law. 

BPS: You had mentioned that part of your task at the Constitutional Law 

Branch was to be a constitutional conscience. Not “we’ve got a Charter and we’ll 

get away with whatever we can unless somebody stops us,” but “there is a Charter 

here and we are going to try as a conscientious government to bring ourselves and 

our laws into line and review them.” 

I think it was Chief Justice Lamer who once took governments for task for 

not defending their legislation. He basically said that it is the legislative branch’s 

responsibility to change the law, so if you’ve still got a law on the books and 

there’s a challenge, go in there and defend it, give the courts the benefit of good 

2 

3 

Reference re Language Rights Under s 23 of Manitoba Act, 1870 & s 133 of Constitution Act, 1867, 

[1985] 2 SCR 347, 26 DLR (4th) 767. 

R v Oakes, [1986] 1 SCR 103, 53 OR (2d) 719.


arguments on both sides. On the other hand, you were trying to be Charterconscious. 

How did your branch navigate those questions in those days 

DJM: They were very difficult issues. In the early days it was easier because 

you would from time to time make concessions that laws were unconstitutional, 

but that’s because really there was no reasonable argument to sustain some of 

those laws. So those were easier cases to concede. Where it gets tricky is as the law 

develops and governments become more sophisticated in balancing legal risk, they 

want to balance legal risk with policy innovation and then that law is challenged. I 

felt that the governments both federally and provincially handled those issues 

pretty well. 

Chief Justice Lamer was critical of the federal government conceding a breach 

in the Schachter case, 4 and I wasn’t part of the federal government at that time. 

When I was with Justice we mostly took the approach that we were there to 

defend the laws not just of that government, but of predecessor governments, that 

it wasn’t for the lawyer representing the Attorney General to concede the 

unconstitutionality of a law because they didn’t like the policy of that law. We 

were very clear on that when we were advising governments. It was important that 

concessions be made only in clear cases for legal reasons. 

So if there was a reasonable bona fide argument that could be advanced in 

the court to sustain a law’s constitutionality, I was certainly amongst those that 

believed that this was our duty whether the government of the day liked that law 

or not. If the government didn’t like the law it was its job as the government of 

the day to go before the Legislature and seek to revise it – it wasn’t to look to the 

courts to strike down laws, unless those laws were clearly unconstitutional. 

BPS: You’ve certainly been through some very celebrated constitutional 

developments along the way in your career. Your last comment brought to mind 

the debate over Morgentaler in Manitoba, 5 which was subject to very heated 

discussion. Many argued that the Attorney General’s department should not 

enforce the Criminal Code prohibition against abortion; others argued it was the 

duty of the Attorney General whether he liked the law, or even if he very strongly 

opposed the law, to faithfully enforce it, which was the decision the Attorney- 

General here made. Do you have any views or recollections of your thoughts or 

perceptions of that discussion at the time or any thoughts in retrospect 

DJM: I can’t comment on that case specifically and though I have done some 

prosecutions I was never professionally “a prosecutor”. But I do think that in the 

context it was always my view, and that of my colleagues in prosecutions, that one 

should prosecute a case subject to two conditions. First there need to be 

reasonable and probable grounds that there will be a conviction, but the second 

4 

5 

Schachter v Canada, [1992] 2 SCR 679, 93 DLR (4th) 1. 

See Roland Penner, A Glowing Dream: A Memoir, (Winnipeg: J Gordon Shillingford, 2007) at 

209-213.


aspect of consideration is whether a prosecution is in the public interest. The 

public interest has always, at least to my understanding, been an important 

component of assessing whether a particular charge should proceed. Within 

prosecutions I think those two criteria have to be assessed case-by-case, you can’t 

fetter your discretion across the board by saying you’re not prosecuting certain 

kinds of cases. 

BPS: One of the bridges to your going into constitutional law was the 

Bilodeau case here in Manitoba. 6 People might not recall it anymore – it was a 

traffic ticket that was issued in English and it went all the way to the Supreme 

Court. The issue was whether all of Manitoba’s laws enacted since the province 

was created were invalid because they didn’t comply with s 23 of the Manitoba 

Act, 7 which was part of the constitution, the supreme law, and which required 

bilingualism. Some said, “Well, let’s treat it as directory, so even if we don’t 

comply we get our fingers rapped but the laws are valid.” Others said, “The law is 

the law and you’re not following constitutional requirements, all your laws are 

invalid.” 

There was a huge public debate at the time – should we make Manitoba 

officially bilingual or should we risk the Supreme Court doing something 

draconian, striking down all our laws, and Manitoba becoming a federal fiefdom 

for a while Others said the Supreme Court would never do that. I think the 

argument has been opened to the public now, and it was actually a pretty close 

thing. This all blew up when I came to the province and I specifically remember it 

as my introduction to the Manitoba political legal culture. Do you have any 

thoughts on what your views were or your perception was of what the Supreme 

Court was going to do at the time Did you have a sense they couldn’t do 

anything or everything Or were you pretty confident they would come up with 

some sort of statesman-like compromise 

DJM: I don’t think I had a very evolved sense of the legal issues that were 

before the Supreme Court in 1985. I do remember discussions at that time on the 

directory versus mandatory issue. I think for the most part the view that the 

government put forward that s 23 was directory was a credible position but most 

people thought that it wouldn’t be accepted by the Supreme Court. So I don’t 

think, frankly, that the Supreme Court’s decision was all that surprising. My 

involvement came a few years later. We had the 1985 reference from the Supreme 

6 

7 

Bilodeau v Manitoba (Attorney General), [1986] 1 SCR 449, 42 Man R (2d) 242. The Manitoba 

Language Reference and Bilodeau were closely intertwined and the situation complicated. See also 

Bilodeau v Manitoba (Attorney General) (1981), 61 CCC (2d) 217, [1981] WWR 393 (Man CA), 

and Bilodeau v Manitoba (Attorney General) (1980), [1981] 1 WWR 474, 1980 Carswell Man 149 

(WL Can) (Man Prov Ct). 

Manitoba Act, 1870, 33 Vict 1870, c 3.


Court 8 and we had the November ‘85 order telling us how many years we had to 

re-enact the legislation 9 – it was three years for the public statutes and five years 

for the private statutes. I was asked to basically take a role in implementing that 

order. I played an in-house role on that front, but we ended up going back to the 

Supreme Court twice where I was lead counsel on both of those cases. 

The first time we actually made history, because we went directly to the 

Supreme Court pursuant to paragraph 3 of the November 1985 order of the 

Supreme Court, which gave the Court continuing supervisory jurisdiction over 

that order. It was very much unlike anything the courts in the Commonwealth 

had seen. The American courts had developed the notion of continuing 

supervisory jurisdiction, but not Canadian ones. 

So we took the Supreme Court order at face value and went back directly to 

the Supreme Court to ask them specifically what they meant by the “acts of the 

legislature”. 10 We had some rulings from the Blaikie cases in Quebec 11 giving us 

some sense of the scope of bilingualism, but we did need some clarification. We 

went first to seek the Court’s concurrence that they would exercise continuing 

jurisdiction in the case, and the Court agreed 9-0 to retain jurisdiction 

notwithstanding the opposition of the federal government at the time. 

Then we went back a second time to get clarification on the kinds of ordersin-council 

and the kinds of documents that had to be in English and French. 12 

We were successful on both counts. It was an interesting area of constitutional law 

and quite a technical one – but an important field. 

BPS: Personally, I’m rather in awe at the responsibility that you had. This 

material wasn’t electronically consolidated in those days, you had to go through 

paper versions of statutes and regulations going back over the whole course of 

Manitoba, you had to be concerned about missing something; you had to be 

concerned about tracking legislation without the benefit of computer 

consolidations and so on. As far as I know nothing terrible happened, which is 

quite remarkable. 

I remember when the British Columbia government passed an act to repeal 

obsolete statutes, 13 and they discovered they had accidently abolished a major 

company, and they then had to pass an act a few days later to reinstate it after 

8 

9 

10 

11 

12 

13 

Reference re Language Rights Under s 23 of Manitoba Act, 1870 and s 133 of Constitution Act, 1867, 

[1985] 1 SCR 721, [1985], 19 DLR (4th) 1. 

Supra note 2. 

Manitoba Language Rights Order, [1990] 3 SCR 1417, 1990 CarswellNat 749 (WL Can). 

Blaikie v Quebec (Attorney General), [1979] 2 SCR 1016, 101 DLR (3d) 394. and Quebec (Attorney 

General) v Blaikie, [1981] SCR 312, 36 NR 120. 

Reference re Language Rights Under s 23 of Manitoba Act, 1870 & s 133 of Constitution Act, 1867, 

[1992] 1 SCR 212, 76 Man R (2d) 124. 

British Columbia, Legislative Assembly, Official Report of Debates of the Legislative Assembly 

(Hansard), 32 nd Parl, 1 st Sess (2 August 1979) at 1153-1175 (Harvey Schroeder), online: 


stock market panic. None of that happened, so obviously you did a very good job, 

and it’s the mark of great management that people don’t notice – when you went 

into it, did you have a sense of how daunting this was going to be 

DJM: Well, I certainly don’t want to leave the impression it was me alone, 

because it wasn’t. There was a group of legal leaders – leaders within the public 

service including Shirley Strutt, who was Chief Legislative Counsel at the time, 

and Ron Perozzo, who later became provincial Deputy Attorney General, to name 

a couple. So I was amongst a team that faced a daunting task and we came 

through it. My understanding is that today there’s pretty much coherence in what 

needs to be translated and we provided some clarity to that in the early days. 

BPS: Were you involved in some of the detail work, like actually having to go 

through particular statutes and making sure there was a French language 

counterpart and it actually matched up semantically 

DJM: I wasn’t involved in that. My involvement was broader, primarily at the 

delegated legislative level, and was involved mostly in issuing principles and rules 

that ultimately defined what needed to be translated, what needed to be thought 

of in a bilingual context. And also ensuring that notion of bilingual enactment – 

it wasn’t just about the final product, it was also about ensuring the notion of 

equality of status between the English and French, both in process and in 

product. So there was a critical need for a cultural shift in the process and context 

of law-making. 

BPS: My impression is that, from the reader end rather than production end, 

Manitoba lawyers tend not to treat the languages as authoritatively equal, in the 

sense that if we get a statutory interpretation point most of the times we just look 

at the English language version; it doesn’t occur to folks to check the French 

language version for greater precision or clarification. Do you think we really 

appreciate the fact that one is not actually a translation of the other, but both are 

equally authoritative enactments in their own right 

DJM: I’d like to think we have evolved in our understanding because to me 

it’s such an integral component of statutory interpretation. When I think of what 

I want a law student to learn, statutory interpretation is a core competency and 

knowing that the French is equal to the English is such an integral part of that. I’d 

like to think we’ve made further progress, hopefully we have. Certainly I would 

say within the Government of Canada and Justice Canada this is a core 

competency. The lawyers there I think very much see the English and French as a 

duality and there is equality of status between the languages. 

BPS: I wanted to ask you: among the Charter cases going to the Supreme 

Court, there were some very major division of power cases, you argued a number 

of interventions on behalf of Manitoba. My recollection is the provinces were 

much more involved in interventions fifteen or twenty years ago than they are 

now. I think the enthusiasm for provinces to get involved is diminished and the


enthusiasm of the Court to listen is perhaps not what it was in the early days. Is 

that your sense 

DJM: I think there has been a bit of an evolution on the role of interveners, 

particularly when you look at the Supreme Court. I think the Supreme Court 

now gives more equal weight to interveners, whether they are representing an 

Attorney General or not. But in those early days, I think the public institutions 

were looking for help and I think they got, or I’d like to think they got, the most 

help from the public sector and from the counsel representing the Attorney 

General. After all we were really, at least in the early days, amongst the few lawyers 

practising exclusively in constitutional law. 

I think the courts at all levels found those representing the Attorney General 

quite helpful to them on constitutional issues. I think they still do, but perhaps 

there is more of a level playing field because the development of constitutional 

law as an area of practice is less specific to the public sector than it once was. 

BPS: There are a number of differences, more lawyers are comfortable with 

the Charter (like criminal defence lawyers) and there’s more anchoring and 

precedent in case law. A Charter case is now largely decided out of earlier Charter 

cases. It’s hard for people to put themselves back in the early days where you’d 

give everything from John Stuart Mill to Aristotle because the Court was looking 

for something to anchor their decisions because it was largely tabula rasa. 

You look at something like liberty and security of the person – does it include 

financial security Courts first said no, then moved more to yes in some 

circumstances, such as where health care is involved – but these questions were 

completely unexplored in the early days of the Charter and you certainly have the 

sense when they were writing the decision they wrote very long, one might say very 

diligent, one might say very laboured, decisions. They were really struggling to 

look at all kinds of sources because they didn’t have their own precedents to work 

with in those days. 

DJM: That’s right. One of the cases where I represented the Attorney General 

as an intervener was Pearlman v Manitoba Law Society Judicial Committee. 14 It went 

to the Supreme Court primarily on the issue of whether the practice of law was a 

liberty interest under s 7 of the Charter. You mentioned the evolving role of 

Attorneys General intervening in constitutional cases – there were nine attorneys 

general on that particular appeal. Ultimately we addressed the Court on two 

issues: whether the practice of law was a liberty interest and also whether the law 

(which is still there in the Legal Profession Act 15 ) that gives the disciplinary 

committee the authority to issue costs against members who are found guilty of 

professional misconduct was a violation of the principles of fundamental justice 

under s 7. The Court found that it did not contravene the principles of 

14 Pearlman v Manitoba Law Society Judicial Committee, [1991] 2 SCR 869, 75 Man R (2d) 81. 

15 The Legal Profession Act, CCSM 2002, c L107, s 72 (1).


fundamental justice, so it didn’t address whether the practice of law was a liberty 

interest. But as you said, those were cases where the attorneys general and the 

courts were dialoguing in the early days, giving primary definition to some of the 

principal clauses of the Charter. 

BPS: You must have felt as lawyers that it was a unique time, a unique era. 

DJM: I’m not sure we felt that at the time. But certainly looking back on it, it 

was very dynamic. I worked with some brilliant lawyers, amongst them Eugene 

Szach, Marva Smith and Shawn Greenberg, to name a few. Very, very capable 

counsel. We were also just grappling, as you say, with the fundamentals of law and 

policy. There was an idealism as well that the Charter would bring about a much 

more heightened sense of justice and equity in Canada. And we were there at the 

beginning of these issues. 

BPS: When I was in law school I went to watch the anti-inflation case 16 and at 

the time it was considered the case of the century. Throughout my career I would 

see two dozen other cases of the century and nowadays when you mention the 

anti-inflation reference it’s some technical thing you read in first year. It’s hard for 

law students to look back at the history and relive what it was like not to know 

how it would turn out and what it must have been like in eras where huge 

questions were being decided without a lot of guidance. But I suppose this 

generation will have different pioneering experiences. 

DJM: Absolutely, there will be. But I think one of the competencies that you 

still need in constitutional law is a capacity for public policy innovation combined 

with strong legal analytical skills. I think that those competencies were and still 

are necessary to practise constitutional law well. One of the cases I enjoyed the 

most was the Quebec Secession Reference. 17 The issues were outside, obviously, of the 

Charter of Rights, but when I look back on the cases I was involved with, I think 

the Quebec Secession Reference was the height of all those experiences, just because 

of the importance of the issues in front of the Supreme Court. It was five full days 

before the Court. It was certainly the longest appeal for me in the Supreme Court, 

but it defined issues of the nation. 

You always hope as counsel that you can be of some help to the court and in 

that case I think we were of some help. When you look back at the record of our 

oral advocacy, we decided that where the Court needed help was with identifying 

some of the fundamental principles defining the Constitution of Canada. We felt 

that the Court would likely want to address the reference questions by applying 

these fundamental principles, as opposed to strictly interpreting the amending 

formulae laid out in the 1982 constitutional amendments. And so our oral 

advocacy was very much focused on what we defined as two of the constitutional 

organizing principles: federalism and the rule of law. As you know the Court 

16 Reference re Anti-Inflation Act, 1975 (Canada), [1976] 2 SCR 373, 68 DLR (3d) 452. 

17 Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385.


ultimately did focus in its decision on the fundamental organizing principles, 

using those two (which we didn’t create, they came from its decision in the 

Patriation Reference) 18 but building on those two and adding two others: minority 

rights and democratic values. That case defined the core organizing principles of 

the Constitution in a four-fold context. But I’d like to think that Manitoba played 

a role in helping the Court develop an opinion that has been deservedly 

applauded. 

BPS: The Court came out with a compromise that was regarded as quite 

shrewd from the point of view of state craft. Legally I don’t think they had much 

choice but to say, “If you follow the Canadian Constitution you can’t unilaterally 

secede,” at the same time they clearly didn’t want to just tell Quebec, “you have 

no rights, we don’t care,” so they created some process rights for Quebec and so 

on. I’m just curious whether, witnessing the justices asking questions, you had any 

sense what dialogue was going on within the court, whether you actually watch 

them think it through themselves. 

DJM: It was an unusual case in that normally in Supreme Court litigation 

you’re dealing with a very “hot bench” – they are always polite, very respectful of 

counsel, but very activist, you get a lot of questioning. But in that case they had 

decided not to ask questions in the context of the submission to the court until 

the very end and so it was very difficult to see where the Court was going and of 

course the questions we had at the very end were quite structured and quite 

formal. I can’t say that you left the five days of advocacy with a clear sense of 

where the Court was going. 

BPS: I guess the Court must have been concerned that if they asked questions 

as they normally do in a free, open-minded way, what seems like just a challenging 

questions might be the next day’s headline in some major political conflagration. 

Which would be a reasonable ground for concern. It was a very high profile case, 

there were a lot of passions associated with secession and I can see why the court 

would want to be very careful about providing fodder for controversy. The court is 

usually very active and very often you can’t tell where they are going, they ask very 

hard questions on both sides. But I wasn’t aware until you told me they were 

much more restrained and reticent in that particular case 

So, in line with your regular career changes, I’d like to ask you a bit about the 

difference between the political and legal culture of bureaucracy in Manitoba and 

Canada generally and see if your experiences match mine. I found the cultures 

very different. I worked for the federal government as an articling student; I did a 

lot of consulting over the years with various titles with the provincial government. 

The provincial government seemed much more small-d democratic. You would go 

to a meeting and there wasn’t a sense that you couldn’t say anything because you 

18 Reference re a Resolution to amend the Constitution, [1981] 1 SCR 753, 125 DLR (3d) 1.


were just a junior person, it was pretty much a freewheeling discussion, and 

people didn’t stand on titles and ceremonies as much. 

I had a sense it was the larger bureaucracies that had a more developed sense 

of hierarchy. If you went to a meeting, the director wouldn’t say much if the 

deputy minister was there and certainly the junior guy two years out wasn’t going 

to say a whole lot of anything in the presence of his seniors. Federal law had a 

much more structured form of doing things and there was also much more 

division of labour – if you wrote a factum with the federal government different 

parts would be assigned and everybody had to get together and improve the 

components, whereas there was much more freedom of action at the provincial 

level: does any of that match up with your experiences 

DJM: Somewhat, yes. When I look back at my experience with both 

governments they were both terrific experiences, but different. With the 

provincial government I was essentially a middle manager, I was Director of 

Constitutional Law, but that didn’t prevent my ability to meet ministers or even 

premiers, or advise ministers and premiers. So you’re right – there isn’t much of a 

hierarchy, at least there certainly wasn’t when I was involved. Federally, there is 

more of a hierarchy. But of all of the departments in the government of Canada, 

my experience is that Justice Canada is the least hierarchical. That is because, I 

think, of the profession of law and also because of the kinds of deputies that 

Justice Canada has had, for the most part, have been much more democratic, less 

hierarchical, more egalitarian, more team-focused leaders, than what you might 

generally find in other departments across the government of Canada. So, yes, the 

workplace culture of the federal government was more formalistic than in 

Manitoba, but necessarily so. 

I do remember thinking at the time when I changed positions from Justice 

Manitoba to Justice Canada, all I had to do was cross one side of Broadway to the 

other, my office for Justice Manitoba being on the north side of the street with 

Justice Canada offices on the south side. Physically it involved simply crossing the 

street, but in terms of the mind-set and perspective on issues it was just a 

monumental leap for me. Although I’d been involved in national issues for the 

province – I had done Supreme Court litigation – to be involved directly with the 

Federal government, somehow, it brought home to me the enormity of the 

country, the issues and the divisions we contend with, the need to emphasize 

process, so as to try to arrive at some form of consensus building. These are things 

that I really don’t think I appreciated until I became involved directly with the 

Government of Canada. As I say, for me it was a monumental leap when I moved 

to the federal government.


V. FEDERAL JUSTICE – MANITOBA AND PRAIRIE REGION : 1999- 

2005 

BPS: So you went from being a middle manager in a small provincial 

department in a small province, to being a senior manager. Not at the top of the 

hierarchy, but you had many employees and you had to deal with all the forms 

and paperwork and bureaucracy and accountability and all kinds of different 

policies at the federal level. Because you didn’t have any formal training as a 

manager, were you influenced by what you had learned as a middle manager, or 

observation of other managers, or managers you had seen in your own life like 

Cliff How did you find your feet at the federal level 

DJM: I think it was mostly through having certain role models. Provincially 

when I look back at the kind of people I respected, for the most part they didn’t 

adhere to a hierarchical model. They were essentially leaders of a team and that’s 

how I always approached management. You were a leader of a team, you didn’t 

dictate what issues were or how issues would be resolved. I liked to do a lot of 

informal consultation – just knocking on somebody’s door and chatting, listening 

carefully. I really believed, and continue to believe as a manager, in diversity and I 

mean diversity in its broadest sense. People with different backgrounds coming 

together with different life experiences. I think we have a tendency to hire in our 

own image. We have to fight against that and hire people who are completely 

different from ourselves, and then you get some really good dynamic discussions 

going. 

I also believe very firmly that everyone contributes to the team, it doesn’t 

matter what level or rank you hold, everyone’s work is an integral part of the 

discussion and end-product. Obviously there are issues of respect, respect for 

diversity, respect for ideas. You also want to ensure that people are emboldened to 

speak fearlessly. For me, even in the senior management positions I held, I felt 

that my job was to speak fearlessly, whether it was to a minister, whether it was to 

a deputy minister, because my contribution was to basically try to bring my own 

perspective on issues and to feel the workplace was a safe environment to do so. 

Regardless of where I was, whether it was provincially or federally, that was the 

kind of workplace culture I was seeking to develop. 

You’re right; I had very little in the way of formal training. When I initially 

went to Justice it was to head up Justice for Manitoba, it was on an interchange, 

and it was essentially a middle-management position. From there I went to be 

head of Justice for the three prairie provinces. That was more of a senior 

management position because I reported directly to the deputy minister and I was 

a member of the Deputy Minister’s national team. So it was my first insight into 

Justice Canada from a national perspective, being part of the senior management 

team nationally. So I did that job for three years with somewhere around 300


lawyers that I was managing here in the Prairie Region. But it was a good 

experience for me. We had four offices across the Region, the Region had just 

been created and I had some very clear goals of what I wanted to achieve. 

BPS: Did you find that by having that openness and intellectual respect, that 

some of the other stuff was more easily resolved and didn’t come up as much By 

other stuff I mean things like, “I’m angry because they didn’t allow me to take my 

vacation when I wanted.” “So and so got the corner office,” “So and so got to go 

to the conference.” Did you find you had less trouble with those because the 

overall intellectual culture was more open and diverse and people got respect for 

their opinions and ideas 

DJM: You always have those issues. In fact, your talking about the corner 

office reminds me that one of the first issues I had in Justice Canada was to 

decide the size of the offices. Ultimately I decided – which was the right way to go 

– to give every lawyer the same size office. So the first decision I made was to 

reduce my office by essentially one-third of its original size. And I did that because 

I thought it was the only way to develop a sense of team. Also, I was the leader 

and it’s for the leader to make those kinds of decisions to develop the values 

you’re hoping that others will come to emulate. So the notion of “team”, moving 

away from hierarchy, those were the sort of values I was trying to reflect in making 

one of my first decisions on office size. 

BPS: A lot of people don’t want to be managers because it is tough to say no 

sometimes. You know someone who really wants something but you have to say 

no, or somebody does something and you have to say no. Did you find that 

personally it was tough when you had a situation where you were the person who 

had to say no quite firmly 

DJM: Not really, because I think when you look at who are the best lawyers, 

they’re not necessarily people that would win popularity contests. They are people 

you respect because they are adhering to some core values and principles. And so 

if you’re consistent with those core values and principles, whether you are 

exclusively a practitioner, or whether you combine the practice of law with 

management, you’re hoping in the end to be fair. So the people come to think of 

you as someone who dealt with them fairly. 

I think that if you give people an opportunity to speak their mind, to have a 

process that is democratic in the sense that people have an opportunity to be 

consulted and they feel that their opinions are valued, at the end of the day when 

the decision is made, I think for the most part people are reasonable and they will 

respect that decision so long as they believe that their views were taken into 

account and given serious consideration. Not necessarily that the decision 

reflected their perspective, but that they were listened to. I think process, if 

anything as a manager from my many years of experience would tell me that 

process is as important as the decision itself.


BPS: It seems to me a lot of those values would be especially followed in 

academic environments, but aren’t always: encouraging people to speak up freely, 

being a team and adhering rigorously to the process regardless of the outcome. If 

people think the process is fair, that the various considerations have been voiced 

and then balanced in an open-minded and responsible way, people can live with 

outcomes. I tend to agree with you that in practice what causes more bitterness 

than anything else is departure from procedural norms – people are more likely to 

accept the outcome if the process’ values are respected and there is respect for the 

diversity you mention. You want that in an academic organization no less than in 

government. Government has all kinds of people with all kinds of backgrounds 

and ideas. I was reading an article recently where Alan Dershowitz is quoted that 

“we all tend to think that diversity means hiring somebody like ourselves,” and 

unfortunately that can be a problem sometimes. 

In any event, you were manager of the Prairie Region of Justice – another 

reason some people avoid management is they say to themselves, “I actually like 

the substantive thinking and the professional part of my job and I don’t want my 

life to be taken over by the bureaucratic stuff to the extent I’m not keeping my 

professional skills sharp and organized.” Did you find you were still able to keep 

your legal skills sharp even though you had all these managerial responsibilities 

Did you feel some tension in that respect Or were you able to live both lives 

DJM: In my role as head of the Prairie Region, I think when you look at the 

management versus the practitioner side, of all the jobs I’ve had, that was the 

strongest percentage of management work. However, I was still able to teach 

constitutional law here throughout the three years I headed up the Prairie Region 

and the Deputy Minister of Justice at the team knew of my interest in 

constitutional law and gave me some constitutional files from time to time to 

ensure that I kept my hand in. But one of the reasons I was attracted to the 

Associate Deputy Minister job was because it is such a terrific blend of legal 

leadership, the bringing together of law and policy, but also senior management 

and personal leadership issues. So that job I think, looking back on all of them, 

combined many of the competencies I had hoped to acquire in the positions that 

I had previously held. When I became Associate Deputy Minister I was able, I 

think, to use some of those prior experiences in that role. It was a combination of 

many of those various roles. 

VI. FEDERAL JUSTICE – ASSOCIATE DEPUTY MINISTER : 2005-2010 

BPS: You spoke earlier of what a sea change it was just to go across the street 

and start working for the federal government and get this sense of getting 

connected to this whole enormous and diverse and sometimes conflicted country. 

And now you’re right in the heart of it in Ottawa, as Associate Deputy Minister of 

Justice. Right there in the centre, where governmental people aren’t an abstract


entity, they’re down the street, and you actually see all these ministers. Was that a 

big change 

DJM: Absolutely, first of all, as you say, you are dealing more with the 

minister, you are advising the minister, attending cabinet meetings. I think the 

other important change for me in that role was the horizontality – as an associate 

deputy you are considered part of the deputy minster community. You are sitting 

on deputy committees and it gives you a glimpse into the whole Government of 

Canada, so that was a transition for me, because clearly the other roles I’d had in 

Justice Canada, even the role heading up the Prairie Region, you got a sense of 

national dimension of your work, but not the whole of government that you saw 

as an associate deputy. 

BPS: It was my observation that very senior people in Ottawa, you can like 

what they do, you can dislike what they do, you can question political sharp 

elbows and anything else that goes in the culture, but they work extremely hard. 

Part of that is connected with that complexity – the federal government is 

extremely large, very bureaucratic, there are very formal accountability meetings. 

You can spend a year on a project and somebody at the Treasury Board goes “no” 

and that’s the end of it. Things have to be negotiated at a very high political level 

and it’s not like you can just bump into somebody at Assiniboine Park and talk it 

through. Did you find that the sheer hours of the work week were quite 

formidable compared to the provincial experience 

DJM: Absolutely. The associate deputy minister role is in many ways a 24-7 

job. You are on call 24-7. So you are at the beck and call of the deputy and the 

deputy’s at the beck and call of the minister. Ottawa is a 24-7 town. You start your 

day with ideas of what you will be doing, but more days than not, the kind of day 

you’ve had isn’t what you planned to have. So you have to be ready to deal with 

the unknown. Your job is to try to anticipate the unknowns before the deputy 

and the minister do. It’s hard to explain but how you described it, Bryan, comes 

pretty close, it is a tight-knit community, it’s a professional community, it’s a hardhitting 

community, and you get to know people relatively well because you get to 

deal with them very closely on many different files across departments. But you 

also have to be a quick study and a Supreme Court decision could come down at 

9:45 AM and you might find yourself in cabinet in forty-five minutes advising 

what the implications are. 

BPS: My sense of Ottawa is that, while there is a “yes, minister” element as 

there is in any kind of career politics, trying to get ahead to get the next 

promotion, people actually take their policy quite seriously there. Sometimes you 

can say, “Why is this person so passionate and giving us such a hard time” but 

they actually believe there is a policy or principle here they are prepared to fight 

for. It’s not always about careers and looking good in the distance, people actually 

are very frequently quite committed to what they think is the best interest for the 

department, country, or the Charter. Did you find that


DJM: Absolutely. When I reflect back on not just Justice Canada, but the 

public service, both provincially and federally, a vast number of people have 

passionate levels of commitment to the country. Plus, as I said, working in the 

public sector, I worked with some of the brightest minds around, people that were 

giving their all and had such a high sense of commitment to their roles. 

BPS: Working in Ottawa you are not that far from Montreal or Toronto, 

where if you are a senior DM you could probably quite easily get a job at a private 

firm and make double or triple your income. Many people are there because the 

public service attracts them, not just the status and the prestige or the pay. So I 

actually think there is a fair amount of genuine dedication and intense belief in 

the principles and values of public services, which may not make people always 

easier to deal with, but I think in some ways it’s gratifying. People aren’t just 

fighting about jurisdiction and turf in the corner offices. Ottawa is a place where 

people often really are engaged and passionate about their principles and policies. 

At the human level, it seems the kind of job you had there was almost like being 

inside a pinball machine – you’re going from situation to crisis to person day after 

day after day: do you have some sort of mantra to handle that sort of stress How 

do you cope with sustained stress over a period of years 

DJM: Well, I think first of all you have to have a pretty good perspective on it 

all, you have to be there for all the right reasons, you have to have strong sense of 

commitment. But I also think perspective counts, I’ve always believed – even 

though people might question the days I was away from my family – I always felt 

my family came first. I think those kinds of perspectives and values give you some 

balance in your life. I also like to go to the gym to clear my head, doing that is an 

integral part of my day, so that has always helped. I don’t think there is much of a 

secret to how you deal with these demanding positions; I think it is about 

commitment, balance and values. 

BPS: I suppose you have to learn how to let some things go in that kind of 

high stress environment, you are going to have people that rankle and express 

themselves in very strong terms because they are exhausted, fed-up or exasperated. 

You have to take a step back and appreciate not everybody will be at their most 

measured and diplomatic all the time and not always get drawn into the emotion. 

You have to kind of say, “Eh, it goes with the territory, I’m not going to take it 

personally, everybody is going to have days in this kind of environment.” 

DJM: I think that’s right. I think anyone in the practice of law comes across 

days that they just have to shrug off. I have certainly had a few of those, in all of 

my roles. 

BPS: So then after quite a remarkable career, certainly a whole lot of firsts – 

right there at the beginning of the Charter branch, were you the first number two 

in the Justice civil service who was a woman 

DJM: I was the first female director of Constitutional Law, the first female 

head of Justice Canada for Manitoba and the first female head of Justice Canada


for the Prairie Region. In my role as Associate Deputy Minister, Mary Dawson 

preceded me as the first female Associate DM. 

VII. 

ACADEMIA 

BPS: You were at the provincial level, at the prairie level, at the national level, 

now you’re back in friendly Manitoba and you have become engaged to some 

extent in Manitoba in matters of academia. You have the Duff Roblin Visiting 

Professorship, you have been doing some teaching in the political studies 

department, you also were teaching some of our law students as well. 

DJM: Yes I taught constitutional law and advanced public law this past year. 

BPS: You were a student way back when in Manitoba, you can see what’s 

happening with legal education now in Manitoba and you’re in the classroom 

frequently. Any thoughts about what’s different, what’s better, what’s worse, or 

what we should be doing 

DJM: I certainly am no expert on legal education, but looking at our 

colleagues here at the Faculty and the kinds of courses that are being taught, I do 

like the idea of having some clinical experience for the students. As I mentioned, 

it wasn’t until articling that I felt that I really had an understanding of some of the 

principles. The study of law without the practice didn’t distil some of those 

principles for me, so I like the fact that there is a clinical component to law school 

education today. I think that it makes the transition from law degree into articling 

so much easier for the students, but I also think it rounds out the formal legal 

education. 

When I think about what it is that a legal education should do, what 

competencies a law student should have when they leave the faculty, it seems to 

me there are a handful. One would be that you have to know how to interpret 

law, statutory or common law; you have to know how to apply law, you’ve got to 

be able to distil and analyze concepts. I think you have to learn how to probe and 

question, I think you should have some capacity for problem solving and you have 

to be able to think clearly and write clearly. These are some of the competencies 

that come to mind that I hope we have developed here, that the law student leaves 

with at least the basics of those competencies. 

When I talk to people in the profession that see the students graduating from 

Law School, where I think we may fall down, and I’m not sure why this is so, it 

seems that it’s the analytical and writing skills that our students, generally, could 

be stronger at than they are when they graduate. I don’t have the recipe today as 

to how we can further develop these competencies, but I think it’s clear that the 

moving away from 100% finals in the second and third year courses toward the 

development of papers and defending papers and discussing ideas are changes in 

the right direction. So I have a mixed view – do I think that a law student today 

graduating from law school has a better legal education than what we had I’d like


to think so. I think we had a solid legal education, but I’d like to think there has 

been progress. How can we make further progress I think that is hopefully 

something the Faculty will have some really good discussions about, not only 

amongst the Faculty itself, but bringing in the members of the profession more 

broadly, maybe members of the broader academic community, to really probe 

those issues and come up with something that accommodates a student having 

some options, yet ensuring that the basic competencies are not only met, but that 

a student graduates with those competencies at a high level. 

BPS: I think there are some issues now with many students writing papers; I’ll 

just give you some of my observations or speculations in case you want to 

comment. I once had a student who was very upset that he only got a B on a 

paper. The student had not really given the reader a roadmap to follow his 

argument, in a single paragraph he would repeat a word in a different context and 

then he would use different words for the same concept. Stuff that you would 

ordinarily think wasn’t really about writing legal papers, but was just about writing 

papers. I asked the student how much practice he had in undergrad and he said 

none. So one of my speculations is that, with the increase in classroom size that 

we tend to see in Canadian universities, professors with a class of two to four 

hundred cannot assign a substantial assignment, and students coming into law 

school haven’t had the practice at the undergraduate level. So I find I have to 

teach students not just how to write a legal paper, but how to write a paper 

altogether, more so than I think I had to do in the old days. Although you never 

know whether that’s because you are changing or because the students are 

changing and it’s not quantified. 

Another speculation I’ve heard is that the technology is changing the way 

students write – certainly changing the way the students tend to research, because 

I have to spend a lot of effort telling the students the web isn’t enough, that you 

actually have to go to primary and secondary sources, they have to go to Quicklaw, 

Westlaw, or even hardcopy. It takes a lot of persuading with some students. Also I 

find it very easy to get information, you think that you’ve got enough, but it’s not 

suited to the idea and you have to be deeper and more thorough. Also it has been 

suggested to me that students communicate in a very comic practical style – 

texting, sending emails in which the emphasis is on short and punchy 

communications, it’s not grammatical, it doesn’t have to be spelled right, it’s just 

effective, quick communication- they ask why they have to go through all this 

formal process. So those are some of my speculations, did you want to comment 

on any of that 

DJM: It absolutely resonates with me. Just this past year in Constitutional 

Law, marking papers in the Aboriginal and Treaty Rights field, students said 

exactly the same thing – that they weren’t writing papers in their undergraduate, 

or if they were, they weren’t getting feedback from their professors along the lines 

of some of the painstaking work that I know that some members of the faculty do


here at the law school in terms of really vetting their work and trying to give 

specific feedback in helping to develop the students’ writing. In other words doing 

a very time consuming edit of what students have submitted, that kind of teaching 

apparently isn’t taking place everywhere. So I think you’re right. These were first 

year students that I was teaching in Constitutional Law, who are coming into the 

Faculty, I think, with less of a skill-set on the writing side. I think it means that 

however we progress with legal education, we have to give further energy to 

developing that competency because it is so critical, regardless of what field of law 

our graduates decide to explore. 

BPS: Talking about competency, we’ve talked informally outside of this 

interview and I gave a talk at Prairie Regional Justice about my sense that we 

should teach practice management. A student or graduate goes out to, say, a 

private commercial firm and they really don’t have a framework to think about 

their experience there. You are likely to uncritically accept some of the values of 

the firm – some of which are very good, some of which are not so good. But the 

point is that you haven’t read about what it is like to practice the law. Do I want 

to do whatever I can to make as much money as possible, or do I want to 

specialize in the work I really enjoy, but take a while longer for my practice to 

develop Am I more comfortable in a little firm developing broad competencies or 

do I want to specialize How many hours do I want Am I content with being an 

associate or a non-equity partner or do I want to go for the whole enchilada 

I don’t think students go in with any chance to have considered how they 

want to conduct their business life and collegial life as a lawyer. With Prairie 

Justice I specifically argued that because newly minted lawyers have so much 

power in government, especially if you’re a prosecutor, it seems to me especially 

important that you have some chance at the academic level to think about what 

you are doing and why you are doing it, before you get acculturated. And we 

should be teaching practice management, and one of those practices is 

government. A long time ago everyone may have gone into private practice, but 

nowadays a great many people are working in government in various capacities. 

Your thoughts on all that And if you were designing a course for the next 

generation of Donna Millers, the next group of people that are going to go and do 

a life of public service and want some training in law and want some education in 

law to prepare them for it, how would we go about doing that 

DJM: Well, some big questions there. 

BPS: You can break them down, or you can not answer [laughter]. 

DJM: Well I think your idea of practice management makes a lot of sense, to 

do something on that front. Because I totally concur – I think law students 

leaving law school have little idea of the full range of their options and the 

expectations on the ground for each. They will have some sense, because some of 

them will have worked, for example, as summer students. But they need to be able 

to assess how that environment measures up to others and also to think in terms


of their own competencies and interests. I think many of the opportunities I had 

were just good fortune. But I think that I told myself it was important not to get 

too comfortable and to try new things. It was through that sort of experiential 

learning, adapting to different environments, that I was able to explore different 

kinds of work and be satisfied with those different experiences. 

So if there is a way in which I think law students can develop a broader sense 

of a legal career and to have a much more defined and clear role for what they 

might want to do with a law degree. As of now I think it is very much 

happenstance in a way for many people, although maybe some out there have 

some solid, clear ideas while in law school about the kind of practice and 

workplace they wish to be part of. In the environment in which the students find 

themselves today, one piece of advice I give to students is the following: it doesn’t 

really matter what area of law you pursue or where you pursue it, the most 

important thing is to find yourself working with the best that our profession has 

to offer. Wherever that is, private or public sector, it’s the calibre of your practice 

as opposed to the kind of area you practice in that I think will be the greatest 

barometer of your satisfaction with the practice of law. When I look at my 

classmates, for example, I think the ones that had the highest level of satisfaction 

in legal practice are the ones for whom it the area of practice didn’t matter; it was 

the calibre of the people that they worked under and with, that helped to define 

who they are as lawyers and their level of satisfaction with their careers. 

BPS: I think I would give an amen to that one. When you’re a law student 

and you want to do tax, you never think of working in construction law. But law 

in some ways is always the same exercise in the sense that there are always policy 

debates, there are always opportunities to be creative no matter what you’re doing, 

there is always a way of performing a function that is cleaner, more efficient or 

elegant, and things that sound really tedious and uninteresting can be fascinating 

and rewarding if you get a chance to do them in the right context with the right 

people. You could be working in a Constitutional Law Branch, but if you’re not 

working with people willing to be adventurous, or are just doing cookie cutter 

work, that’s not going to be that satisfying. You could be doing stuff that you 

think is less enhancing for the soul, in commercial areas, that turns out is very 

satisfying because you can develop your skills and have a satisfaction of knowing 

that you are serving clients, effectively and ably and creatively. 

That seems to me to be what we want in the practice management course, not 

just stuff like how to send out a bill, but thinking about what kind of practice I 

want to have, do I want to work in one area my whole life, or pursue a career like 

you had with the government and so on and so forth. It doesn’t seem to me that 

we really have an opportunity in this law school right now to give students a 

chance to think about all these issues. Not that we want to preach any right 

answer to anyone. What kind of practice is meaningful and enjoyable depends on 

the individual and it depends on other ideas involved in change and response


with their encounters with reality. But giving people a framework to think about 

it, in the sense that yes there are a lot of options and ideas out there and the next 

time they want to think about what they want to do they can actually go revisit a 

whole lot of interesting material and read up on it before they make their 

decisions. All of that is something I think we can equip students with that we 

haven’t yet. 

DJM: I totally agree with the idea that if students can leave law school with a 

better sense of where their interests lie, and what the practice of law actually looks 

like in that particular environment, then I think that can only serve their needs. 

And it can only serve the profession’s needs, because you end up with a better 

match between the interests and capacities of the particular person involved. I 

guess the other thing too, and I think this is also becoming the case more in the 

private sector: you cannot practise law in the public sector unless you know how 

to work in a team context. I can see that through moot court appearances and 

some of the more clinical work, the law school is replicating some of these team 

approaches to the practice of law, and I think that that’s terrific. But I think it’s 

important that students really understand that working in a team is the way law is 

practised. The old days of the “lone wolf” litigator certainly don’t exist in the 

public sector and I don’t think we see much of that left even in the private sector. 

So I think it’s important for students to have some understanding of how law is 

practised and the importance of collegiality within the workplace and across the 

profession. 

VIII. 

CONCLUSION 

BPS: Now you have been extremely generous with your time and very 

thoughtful with your answers, is there anything I haven’t asked about, or would 

you like to talk about something that may interest our readers, before we wrap 

things up 

DJM: Well, I don’t think there is, I guess if I was going to say anything it’s 

that I have really enjoyed being here at the law school, I have enjoyed the work I 

have done in the political studies department, it has been a really good year and a 

great experience and I feel quite blessed having that opportunity. 

BPS: And I’m sure both colleagues and students really appreciate your 

bringing in a wealth of experience and insight to us. I’ll conclude with a thought 

that comes to mind, an episode of the Simpsons… [laughing] 

DJM: [laughing] My son’s favourite show. 

BPS: Comic Book Guy is breathing his last breath, he says, “An entire life 

spent reading comics,’ then pauses and concludes, “life well lived.” 19 And I would 

19 The Simpsons Movie, 2007, DVD: (Beverly Hills, Cal: 20 th Century Fox Home Entertainment, 2007) 

at 1h6m.


think anybody looking at your CV and reviewing your accomplishments would 

have to say that you’ve certainly had a professional life very well lived.


The Law Society of Manitoba’s Equity 

Ombudsperson Program 

B R E N L E E C A R R I N G T O N T R E P E L * 

A 

s it marks its first decade, the Law Society of Manitoba’s Equity 

Ombudsperson program continues to play a unique role for Manitoba’s 

legal profession. Since its inception, the office has received more than 

5000 contacts from lawyers, articling students, law students, support staff and 

clients of the legal profession. 1 

I. 

A DESCRIPTION OF THE PROGRAM 

The Equity Ombudsperson began as a pilot project of the Law Society of 

Manitoba in November of 2001. It became a permanent program in 2003. The 

Equity Ombudsperson provides confidential and neutral assistance to lawyers, 

support staff working for legal employers, articling students, law students and 

clients who have concerns about discrimination, harassment or accommodation. I 

cannot reveal to anyone, including the Law Society, the identity of those who 

contact me about a complaint or the identity of those about whom complaints are 

made. My only reporting to the Law Society is of a general statistical nature in 

setting out the number and type of calls received. 

The goal of the Equity Ombudsperson is to resolve problems and to prevent 

them where possible. In doing so, I maintain a neutral position and do not 

provide legal advice. I can tell complainants about the options available to them, 

which include filing a formal complaint with the Law Society or with the Human 

Rights Commission; commencing a civil action, or having me attempt to resolve 

the issue informally or mediate a discrimination or harassment dispute. 

* 

1 

Equity Ombudsperson, The Law Society of Manitoba; Sessional Instructor, Faculty of Law, 

University of Manitoba; Lawyer and Mediator. 

Brenlee Carrington Trepel, Annual Report of the Equity Ombudsperson, (Winnipeg: The Law 

Society of Manitoba, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010). 2004-2009 online: < 

http://www.lawsociety.mb.ca/equity/equity-ombudsperson/annual-reports>


The Equity Ombudsperson is also available to consult with and assist any 

private or public law office wanting to raise staff awareness about the importance 

of a respectful workplace environment. I am available to assist law firms in 

developing office policies on parental leave, alternative work schedules, 

harassment and discrimination, accommodation and a respectful workplace. I can 

provide educational seminars for members of firms, I am available for personal 

speaking engagements and informal meetings, or I can talk confidentially with a 

firm about a particular problem. The services of the Equity Ombudsperson are 

provided free of charge. 

The Equity Ombudsperson program has been a growing trend among 

Canadian law societies since 1995. Currently the Law Societies of Manitoba, 

British Columbia, Alberta, Ontario and Saskatchewan have Equity Ombuds. The 

Nova Scotia Barristers’ Society has a staff Equity Officer who fulfills a similar role. 

The Law Society of Manitoba’s Equity Ombudsperson is the fourth-oldest 

program of its kind in Canada. Of my cross-Canada counterparts, I am the second 

longest-serving person in the role. Anne Bhanu Chopra, LSBC’s Equity 

Ombudsperson, has been in her role since 2000, while I started the office in 

Manitoba in November of 2001. Cynthia Petersen, Discrimination and 

Harassment Counsel for the Law Society of Upper Canada is the third-longestserving 

in Canada after having taken her position in 2003. The Law Society of 

British Columbia established the first Discrimination Ombudsperson program 

(now called Equity Ombudsperson program) in 1995. 2 In 1997, The Law Society 

of Alberta opened its Equity Ombudsperson program. 3 The Law Society of Upper 

Canada established the Office of Discrimination and Harassment Counsel in 

1999. 4 

The Equity Ombudsperson program continues to be well-used. In addition to 

specific issues being raised, there have been numerous inquiries about respectful 

workplace policies and initiatives. The service continues to be accessed by both 

men and women, although more women use the program. In 2009 and 2010, the 

service recorded its highest number of contacts with more than 900 in each of the 

last two years. 5 

2 

3 

4 

5 

“New Equity Ombudsperson initiatives”, Bencher’s Bulletin 2007:4 (October) online: Law Society 

of BC website . 

Jocelyn Frazer, “A Neutral Corner : Education Key to Resolving Problems”, The Advisory 8:2 

(April 2010) online: Law Society of Alberta website . 

“DHC – About DHC” online: Discrimination and Harassment Counsel 

Supra note 1, 2009, 2010.

The Law Society of Manitoba’s Equity Ombudsperson Program 279 

II. 

PARENTAL SUPPORT PROGRAM 

In October 1, 2008, the Law Society of Manitoba, through the Equity 

Ombudsperson, introduced the Parental Support Program. The program is the 

first of its kind to be implemented by any Canadian law society, while other law 

societies are setting up similar programs. The Equity Ombudsperson began to 

provide coaching sessions to lawyers and their spouses or life partners to help 

them plan for maternity and parental leave and how to meet the challenges of 

becoming new parents. 

Six in-person sessions are offered that focus on issues such as how to discuss 

leave options and transition issues with the lawyer's firm, how to deal with the 

new dynamics of having a family, and how to successfully re-integrate into practice 

while juggling career and home life. Sessions are free, completely confidential and 

supported by the additional resources of Blue Cross Manitoba. Both the Law 

Society of Upper Canada and the Nova Scotia Barristers’ Society have consulted 

with me about the implementation of a similar program in their jurisdictions. 

III. 

THE CODE OF PROFESSIONAL CONDUCT MANDATES 

RESPECTFUL WORKPLACES 

The Law Society of Manitoba’s Code of Professional Conduct has rules which 

place a positive duty upon lawyers to treat others in the workplace with respect 

and dignity. The Equity Ombudsperson brochure, available at the Law Society of 

Manitoba website at www.lawsociety.mb.ca, has been a key educational tool for 

the program. The following is an excerpt from the brochure: 

A. 

The Law Society of Manitoba supports the full participation of men and women in the 

legal profession regardless of age, disability, race, religion, marital or family status or sexual 

orientation. The Society also acknowledges the diversity of the community of Manitoba 

and expects lawyers to respect the dignity and worth of all persons and to treat all persons 

equally. Discrimination and harassment are against the law and are prohibited by the Code 

of Professional Conduct for lawyers. 

What is discrimination 

Discrimination in the workplace involves unwelcome comments or actions 

that relate to an individual's race, colour, ancestry, nationality or ethnic 

background or origin, political belief, religion, marital or family status, physical or 

mental disability, age, sex or sexual orientation. It is an act or omission which 

effectively denies an individual or group benefits or opportunities available to 

others because of a distinction relating to their personal attributes.


B. 

What is harassment 

Harassment means abusive and unwelcome comments or conduct and 

applies to a range of behaviour, including comments or conduct made on the 

basis of an individual's ancestry, colour, race, nationality, religion, age, sex, 

gender, sexual orientation, marital or family status or physical or mental disability. 

Sexual harassment means one of a series of incidents involving unwelcome sexual 

advances, requests for sexual favours, or other verbal or physical conduct of a 

sexual nature. 

C. 

What is the impact of discrimination and harassment 

Most employers know that a happy work environment is necessary for a 

productive and efficient workplace. Employees who are being discriminated 

against or harassed may suffer from stress, depression and other illnesses that 

either keep them away from work or reduce their well-being and productivity. If it 

is an ongoing problem, discrimination and harassment can affect morale, cause a 

decrease in the firm's productivity and lead to high staff turn-over. Working 

relationships can break down, work quality may drop, a firm may become a party 

in unwanted litigation and lawyers may have to respond to complaints about their 

conduct. Freeing the workplace from discrimination and harassment is essential 

for an effective and healthy work environment. 6 

Rule 5.03 of the Law Society of Manitoba Code of Professional Conduct 7 

prohibits harassment and discrimination. The rule states that “a lawyer has a 

special responsibility to respect the requirements of human rights laws in force in 

Canada, its provinces and territories and, specifically, to honour the obligations 

enumerated in human rights laws including the Human Rights Code, CCSM c 

H175.” Sexual harassment, harassment in general and discrimination are all 

prohibited. Specific examples of behaviours are then listed in the Code. These 

include jokes of a racist, sexist, ageist, etc. nature and unwelcome invitations or 

requests, particularly based on intimidation. Discrimination includes setting 

unnecessary hiring criteria that effectively exclude some job applicants on 

prohibited grounds (e.g. requiring a driver’s license could exclude persons with 

disabilities that prevent them from obtaining a licence) and failing to provide 

reasonable maternity and parental leave. 8 

6 

7 

8 

Marilyn Billinkoff & Brenlee Carrington Trepel, Equity Ombudsperson Brochure, (Winnipeg: The 

Law Society of Manitoba, 2002). 

The Law Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society of Manitoba, 

2011, p 87. 

Ibid.


IV. 

LAW SOCIETY OF MANITOBA EQUITY INITIATIVES 

My Equity Ombuds-counterparts and I frequently hear about articling 

interview questions which violate human rights laws. The Law Society of 

Manitoba has a number of model equity policies on the website including one 

entitled Best Practices for Employment Interviews. 9 This document provides 

helpful guidelines for conducting legal employment interviews. One example of a 

prohibited question that has been asked of articling students across the country is: 

“Are you married and do you plan to have children” 10 

Another prospective articling student was asked whether the fact that she had 

a child would interfere with her ability to do the job and work long hours. A male 

student characterized his articling interview experience as classic age 

discrimination. During an interview at a law firm, he was told: “We don’t hire 

people over the age of 35 for our articling program. It’s not good business.” 11 I’ve 

also had calls from female lawyers who have been told that if they want to have 

children, they should find another job. This kind of comment, devastating for the 

lawyer at whom it’s targeted, is also against the law. 

Implementing equity initiatives is good for business. Being known as a 

respectful and inclusive employer is an effective way to attract top staff and clients. 

Offices which have a reputation for valuing diversity, implementing equity 

initiatives and caring about their staff are considered desirable places for 

employees to work and desirable places for clients to place their faith and spend 

their money. 12 

V. 

LAW FIRMS EMBRACE EQUITY INITIATIVES 

Stikeman Elliott was recently named 2011 Canadian Law Firm of the Year by 

the International Financial Law Review. On its website, the firm advertises that: 

Stikeman Elliot is committed to diversity amongst its lawyers, students, and staff to ensure 

that all firm members are supported, valued, respected. In his address about the firm's 

defining principles at our 50th Anniversary Retreat, Dick Pound encouraged us to: “Never 

lose sight of the need for diversity among us. We will need the broadest range of talents 

and backgrounds as we face a national and international future. Embrace and seek out 

differences; do not reject them.’ 13 

9 

10 

11 

12 

13 

Best Practices for Employment Interviews (Winnipeg: The Law Society of Manitoba, 2003) online: 

 

Brenlee Carrington Trepel, Workplace Human Rights Violations: Communique, (Winnipeg: The Law 

Society of Manitoba, May 2009). 

Brenlee Carrington Trepel, “Canada’s Legal Profession Still Striving for Equality”, The Lawyers 

Weekly, 26:24 (October 27, 2006). 

Ibid. 

“Stikeman Elliott – Careers (Ottawa Students)” online: Stikeman Elliott


Stikeman Elliott’s website goes on to state that “ensuring a diverse work 

environment at Stikeman Elliott has advanced our culture and overall business 

objectives and success in several ways. By seeking to attract and retain individuals 

from all of Canada's diverse communities, we ensure that our people are the best 

and the brightest that Canada has to offer.” 14 The Law Society of Manitoba 

website also has model policies for law offices on accommodation, maternity and 

parental leave, respectful workplaces, and alternative work schedules. 

When I started as Equity Ombudsperson, I approached the Law Society of 

Manitoba and the Manitoba Bar Association’s Constitutional/Human Rights Law 

Subsection about co-sponsoring a Continuing Professional Development program 

on the Duty to Accommodate. We have run this educational equity initiative 

almost every year since and attendance continues to grow, as does this area of 

human rights law. 

I also recommended the creation of a boundaries program for the Law 

Society of Manitoba. The boundaries program is a means of helping lawyers to 

avoid future charges of harassment against them. I connected the Law Society of 

Manitoba with the individuals administering a similar program for the medical 

profession and now the Law Society of Manitoba has the first such program of its 

kind in Canada for the legal profession. This is another positive equity initiative 

being used to assist lawyers in this province. 

Provincial Equity Ombuds and Law Society Equity staff regularly consult 

through the Law Society Equity Network so that equity experts from across 

Canada will be aware of one another’s initiatives and can brainstorm new ones. 

VI. 

NEW JUSTICIA PROJECT FOR MANITOBA 

One of the most exciting new equity initiatives is the National Justicia Project 

implementation committee. Law Society of Manitoba Deputy CEO Marilyn 

Billinkoff and I are both members of this committee. This very worthwhile project 

originated in the United States and was brought to Canada by the Law Society of 

Upper Canada. Law Societies across the country want to adopt the idea in their 

jurisdictions. I will help lead implementation of this initiative to retain women 

lawyers in Manitoba. The Justicia Project is designed to help law firms identify 

and adopt principles and best practices to promote the retention and 

advancement of women in private practice. Earlier this year, the Benchers of the 

Law Society of Manitoba approved in principle a resolution to implement the 

Justicia project here in Manitoba. 

14 

stikeman.com/cps/rde/xchg/se-en/hs.xsl/2963.htm> 

“Stikeman Elliott – Diversity” online: Stikeman Elliott .


According to the Law Society of Upper Canada’s website, more than 57 law 

firms across Ontario and one large firm outside the province have pledged their 

support to the project. It is the first project of its kind in Canada, and includes 

representatives from medium and large firms committed to identifying and 

adopting principles and best practices that promote the retention and 

advancement of women. 

Each of the participating Ontario firms has signed written commitments to 

achieve ambitious goals in four core areas: tracking gender demographics, flexible 

work arrangements, networking and business development and mentoring and 

leadership skills development for women. 15 

The creation of the Justicia Project resulted from a cross-Canada trend 

concerning women in the legal profession. While law schools feature female 

students in numbers equal to or even greater than male students, most provinces 

report a “disproportionate loss of women at the senior associate level and 

significantly fewer women than men as partners.” 16 

LSUC Justicia Working Group Co-Chair Thomas Conway stated: “From a 

business perspective, law firms’ ability to compete for clients and the best talent is 

critical. Clients today expect law firms not only to be committed to equality, but 

also to actively promote diversity in the workplace.” 17 

Marilyn Billinkoff, Deputy CEO of the Law Society of Manitoba, stressed the 

importance of implementing the Justicia Project here in Manitoba 

…because women lawyers are leaving private practice in Manitoba in record numbers and 

using their law degrees and legal skills to work in government, corporate and other business 

settings. This exacerbates the difficulties many members of the public are already 

experiencing in accessing legal services, particularly in smaller Manitoba centres where 

“baby boomers” are starting to retire and there are no young lawyers interested in taking 

over their practices. The Law Society is also hoping that tackling the problem of retaining 

and advancing of women will lead to the advancement and retention of men and women 

from under-represented communities. 18 

The Justicia Project has unlimited possibilities for success here in Manitoba 

and across Canada’s legal profession, just as it is currently enjoying in Ontario. 

15 

16 

17 

18 

“Justicia Project” online: Law Society of Upper Canada 

Retention of Women in Law Task Force, The Business Case For Retaining and Advancing Women 

Lawyers in Private Practice (Vancouver: The Law Society of British Columbia, July 2009) at 4, 

online: . 

Law Society of Upper Canada, News Release, “Law Society launches cutting-edge think tank to 

retain and advance women in legal profession” (14 October 2008) online: . 

E-mail from Marilyn Billinkoff, July 12, 2011.


All the files which the Equity Ombudsperson office handles require a great 

deal of time, effort and sensitivity. The Equity Ombudsperson was honoured to 

receive an Honourable Mention in 2010 from LEAF National as one of a total of 

25 women lawyers from across Canada who have made a positive difference 

through the law through mentorship, their legal practice or the advancement of 

women’s equality. In 2007, the Manitoba Bar Association awarded the Equity 

Ombudsperson with an equality award for helping to promote equality within the 

legal profession. The Law Society of Manitoba website now features links to many 

of the Equity Ombudsperson’s articles, which is another effective communication 

and education tool. 

Thanks are extended to Law Society of Manitoba’s CEO Allan Fineblit and 

the Law Society of Manitoba for their support of this service and in particular to 

Deputy CEO Marilyn Billinkoff for all of her assistance and wise counsel. Thanks 

as well to the Equity Committee for its hard work. 

Simply by establishing and maintaining the Equity Ombudsperson program, 

the Law Society of Manitoba is sending a positive reminder to the legal profession 

about the importance of treating everyone equally, with respect and dignity. 

Achieving this goal is crucial to ensuring a thriving legal profession for the future. 

If you have any questions or concerns about respectful workplaces, just call 

the Equity Ombudsperson at 942-2002 or toll free at 1-866-771-2002. Or e-mail 

me at . If you would like to take part in the parental 

leave support program, please contact me. If you have accommodation issues, or 

any concerns relating to discrimination or harassment, I can help with those as 

well. If you would like to implement any equity policies or initiatives, I am happy 

to consult with you. I am also available to do free training at your office. All 

communication is strictly confidential and all services are provided free of charge.


Recent Themes in English Criminal Justice 

History * 

G R E G T . S M I T H * * 

T 

he three books under consideration here illustrate some of the important 

themes developing in the history of English criminal justice. The first book 

presents a careful study of the legal profession at a key moment when both 

the institutions of legal administration and the law itself were undergoing 

significant revision and reform. The second studies how recent advances in 

gender and literary theory might suggest a re-examination of the nature and 

patterns of criminality in early modern England. The third explores the 

interaction between the state and those living on the margins of society and traces 

the spread of social and institutional networks in a period of rapid urbanization 

and industrialization. Although the three books deal with distinct topics in 

various locales and in different time periods, each makes important contributions 

to the study of crime and law in the past, while also speaking to questions about 

the administration of justice in the present. 

Garthine Walker 

Crime, Gender and Social Order in Early Modern England 

Cambridge: Cambridge University Press, 2003 

Garthine Walker’s deliberately provocative study presents an important 

example of how the considerable historiography on gender can be integrated with 

studies on crime to forge a deeper understanding of the criminal justice system in 

early modern England. Her principal concern is to bridge the work of an earlier 

generation of quantitative historians with more recent work in history informed 

by post-structuralism, literary theory and gender theory. 

* 

** 

The observant reader may notice that the publication dates on the books herein reviewed belie 

the title of the review itself. Though Dr. Smith submitted the article in a timely fashion, it was 

accidentally omitted from the issue in which it was supposed to appear. We apologize to Dr. 

Smith for the inconvenience, and are sure our readers will still find the article of interest. 

Greg T. Smith, PhD, Associate Professor, Department of History, University of Manitoba.


Walker has more than one bone to pick with early historiography. In her 

survey of the previous literature and in her analysis and interpretation of the data 

she has collected (chiefly for the county of Cheshire), she argues for the existence 

of a much more prominent role for women when it comes to historical criminal 

activity. Walker argues that much of the previous historiography of crime and the 

law was misdirected by present-day assumptions about gender stereotypes. This led 

to a reading of the available evidence as prone to both misinterpretations and 

underestimations of the role played by women as both victims and perpetrators of 

crime. Historians who have relied on quantitative analyses of the existing court 

data (in other words, nearly all practitioners in the field since the late 1960s) are 

charged with having adopted a research methodology which has repeated the 

error of categorizing crime in a manner that automatically discounts women from 

assuming a statistically significant role. Since fewer women in the seventeenth 

century moved far enough along in the process of arrest, indictment, trial and 

conviction for their criminal acts to be recorded, it was impossible for later 

historians who aggregated available statistics to find female participation in any 

significant numbers. Criminal justice historians should certainly acknowledge this 

point, but Walker suggests they also reconsider the reasons why it was that women 

who had made it to trial and were convicted seemed to suffer much more harshly 

than did men. 

There can be some debate over Walker’s sources and the quantitative 

methodologies she relied on to draw these striking conclusions. While it may be 

true that women who were in the end convicted and punished for serious offences 

suffered serious penalties at a high rate, Walker is less forthcoming about what 

could happen in the steps along the path from being accused of a crime to being 

convicted, and what might happen to men as compared to women. As other 

historians have shown, there were many opportunities and incentives for women 

to step out of the process and avoid the formal trial. Women were forced away 

from the trial courts by various mechanisms of mercy and mitigation, not to 

mention partial verdicts or outright acquittals against the evidence when they did 

come to trial. Surely this is indicative of some measure of deliberate leniency on 

the part of a male-dominated criminal justice system. 

A second issue brought up by Walker is the gendered language used to define 

crime by which male criminal behaviour became the normative standard, and 

against which female criminality was measured and judged unusual or 

exceptional. Walker argues that this assumption, backed by the reliance of 

historians upon the official records of crime, has constructed female criminal 

activity as the exception to the rule and led to a flawed perception of the criminal 

justice systems in the past as one that was easier on female offenders. The idea of 

the leniency of the courts towards women accused of “male” crimes is in need of 

revision. She supports this challenge by pointing to the outcomes of a number of 

trials of female offenders before the Cheshire courts for crimes of violence and

Recent Themes in English Criminal Justice History 287 

crimes against property and the punishments meted out. Her methodology leads 

to claims that in some instances women suffered disproportionately severe 

punishments for similar offences to men. In the case of homicide for example, 

Walker found that no convicted women in her sample were pardoned while more 

than three quarters of convicted men were (136). The statistical sample upon 

which these conclusions rest yields a small absolute number of cases, and it would 

have been helpful had Walker included her sample size along with the aggregate 

percentages in her tables for added clarity. 

Where Walker is most at ease is in her subtle discussion of the situational 

contexts of criminality and the analysis of the discourses of crime. Walker 

demonstrates a keen ear in hearing the “subject positions” as she calls them, 

deployed by female and male litigants in various cases, in order to construct their 

versions of the events in question. This literary analysis of court documents proves 

an effective way of revealing the gendered nature of the language of accusation, of 

appeal, of defence, or of contrition. Her analysis reveals that women were active in 

many forms of criminal activity and that they engaged in forms of crime that was 

far from “petty”. Women could be as brutal, devious and incorrigible as men, 

while women also participated in criminal activities that exploited their particular 

economic and social roles in society and drew upon their common knowledge of 

prices, value and marketability. For example, it became necessary to fence stolen 

goods. Walker builds on her previous work to show that conventional 

assumptions that women were dependent on male guidance in their criminal 

activity fall short of the evidence, and that male and female criminality in the past 

had much more in common than hitherto perceived. 

Allyson N. May 

The Bar and the Old Bailey, 1750-1850 

Chapel Hill and London: The University of North Carolina Press, 2003 

In most of the trials featured in Walker’s study, lawyers would have rarely 

made an appearance, a fact that was common in most early modern trials. The 

more frequent appearance of lawyers in criminal trials was not to begin until the 

eighteenth century. Allyson May offers the first comprehensive study of the 

creation of a professional cohort of lawyers working at London’s storied Old 

Bailey court in the eighteenth and nineteenth centuries. The Old Bailey was 

London’s principal criminal court in the eighteenth century and was the crucible 

for many significant changes in attitudes towards crime, legislative reform, and 

changes in the practical administration of justice. May’s study traces the 

increasingly central role that lawyers played in the trial experience and the 

development of professional sensibilities among a core group of London lawyers. 

She covers a broad range of primary and secondary material in order to piece


together micro-biographies of many of the key lawyers who toiled in and around 

the Old Bailey. The result is a carefully argued, well-crafted, and illuminating 

study of the personal and professional experience of advocacy work over the 

century after 1750, an age of significant social and cultural change. May’s book is 

one of a handful of recent, important studies of the legal profession and the 

emergence of the modern, adversarial trial and will stand as one of a trio of mustread 

books on lawyers. 1 

May’s central concern is the history of the criminal bar at the Old Bailey. 

Based on her meticulous research May has been able to reconstruct the careers of 

several London practitioners. Men such as William Garrow, who developed a 

reputation in the late eighteenth century as a tough defence counsel, and Charles 

Phillips, a prominent barrister and Victorian anti-death penalty campaigner, each 

get extensive treatment. May also includes a helpful appendix containing brief 

biographies of all her key players; but this is no hagiography. May shows how 

professionalization and the creation of an Old-Bailey-centred practice was fraught 

with multiple problems, grounded in the larger eighteenth century questions of 

how the legal system operated and what role should be assigned to lawyers in that 

system. What she reveals is an accidental history, in that the community that 

emerged was created as the result of a culmination of piecemeal reforms and 

changes rather than from any concerted, coordinated effort. 

Lawyers had traditionally been absent from felony trials in early modern 

England and the trial was largely a contest between the victim (as prosecutor) and 

the defendant. When lawyers were actively involved in trials, it was on behalf of 

the prosecution. Defendants had no right to legal counsel. As more victims began 

to hire prosecution counsel in the increasingly commercialized world of 

eighteenth-century London, the former mode of trial between two often equally 

unprepared and un-coached litigants began to disappear, resulting in a lopsided 

trial. Lawyers gained greater familiarity with the needs of defendants in felony 

trials and the way the defendants’ rights and reputations were threatened by their 

ignorance of the law and inadequate preparation for trial. Both lawyers and judges 

came to understand the advantages held by a prosecutor with counsel in tow, and 

developed a more sensitive appreciation for the role that defence counsel could 

play within the criminal trial. Defence counsel began to receive permission to 

appear in limited roles by the discretionary authority of the presiding judges from 

the 1720s but it is not until the 1750s, May argues, that a collective of minor 

lawyers (and occasional stars) began to take on defence work at the Old Bailey as a 

regular part of their jobs. 

1 

The other two being David Lemmings, Professors of the Law: Barristers and English Legal Culture in 

the Eighteenth Century (Oxford: Oxford University Press, 2000) and John H Langbein, The Origins 

of Adversary Criminal Trial (Oxford: Oxford University Press, 2003).


By and large these barristers were not interested in driving forward significant 

reforms to the trial process. Indeed, barristers were reluctant to promote and 

accept a bill protecting the right of defendants to be represented by legal counsel. 

May attributes this to a combination of self-interest and conservatism within the 

legal profession (one that is generally resistant to change), coupled with a larger 

concern over the balance of sides in the trial. The Prisoners’ Counsel Act of 1836, 

which granted the accused the right to be represented by legal counsel and 

allowed counsel to speak to the jury on behalf of their client, was a development 

imposed from on high. May shows that it was Whig politicians who saw political 

advantages in pushing this change as part of a larger reform agenda that brought 

about this change, rather than any response to calls from the courtroom. Many of 

the Old Bailey counsel feared the new act would give rather too much power to 

the defendants and by encouraging “professional adversarialism” (p 201) the trial 

would only move further from its true objective: to arrive at the truth. 

The moral complications that arose from this new legislation that now 

imposed the defendant’s right to counsel emerged most dramatically in a case 

where Charles Phillips, for the defence, heard his client, who was on trial for 

murder, confess in the midst of the trial. The client refused to alter his plea to 

guilty, forcing Philips to balance his moral qualms with a professional 

responsibility newly constructed by a law that he did not support in the first place. 

May contends that Philips took an important position for the profession and for 

the modern criminal trial by continuing for the defence and maintaining that the 

defendant had not yet been convicted by the court. 

Peter King 

Crime and Law in England, 1750-1840: Remaking Justice from the Margins 

Cambridge: Cambridge University Press, 2006 

Peter King’s collection of both new and previously published essays brings 

together five of his most important and influential earlier articles with five new 

chapters based on new research. The essays are organized into four themes: youth, 

gender, violent crime, and attacks on customary rights. The themes provide an 

organizational framework for the book; but it is the very fine introductory essay 

distilling King’s ideas of where the field of criminal justice history should turn 

that is of most interest. The subtitle of the book is “Redressing Justice from the 

Margins”, a topic in which King hopes to see further research and fresh work 

done. 

Criminal justice historians have explained the operation of the English courts 

from the medieval period to the present and have offered substantial insights into 

the workings of the Assizes and the quarter sessions. We are now much better 

informed with regard to the patterns of crime, prosecution, and punishment, but


most of that work has relied on the records of the courts, from the quarter 

sessions upwards to the high courts. Much of the work (though by no means all) 

has been quantitative and administrative in methodology and subject, and less has 

been done to integrate the work of the courts with the work of other institutions 

concerned with the control of crime, the regulation of the parish and county, and 

the management of the poor. In his new essays, King continues the argument 

developed in his book Crime, Justice and Discretion (Oxford, 2001) that by focusing 

on the work of the lesser courts, particularly the summary complaints presided 

over by magistrates around the country, as well as the interventions made by 

charitable institutions and by local officials, historians can begin to open up the 

ways in which the law presented a “multi-use right” (as King says elsewhere) to 

people from all social classes. 

Historians, King argues, have paid a rather lopsided attention to the role of 

Parliament and the decisions of the high courts in making and revising legislation, 

especially in the first half of the nineteenth century. The origins of that legislation 

are too easily ascribed to the efforts of reform-minded individuals and key 

parliamentarians. In King’s view, men like Robert Peel or Lord Sidmouth and 

other reform-minded MP’s responsible for legislative changes to the law owe more 

than has yet been appreciated to the undocumented work of the people associated 

with those on the margins of society (meaning physically those outside of London 

and socio-economically those at the bottom rungs of the social ladder). Their 

intimate knowledge of the hardships of life for the vast majority of the population 

came through their daily work in an array of public and private institutions and 

their modifications and experiments with implementing the law on the ground 

often preceded new legislation by years or decades. 

King is interested in exploring the interaction of legal authorities with 

officials who worked in and on behalf of private institutions such as charities, 

hospitals and other facilities or organizations who shared similar concerns with 

state authorities over the life experiences of those on the margins of society. 

England’s growing population meant a gradual increase in the proportion of 

women, children, the sick and the poor in need of assistance and protection at 

various points in their lives. One subject that King has examined before, and 

develops in two new essays here, is the emerging interest in the late eighteenth 

and early nineteenth centuries in the lives of children on the margins. The new 

essays reveal the increasingly important role of the reformatories, such as the 

London Refuge for the Destitute and other institutions, in dealing with juvenile 

offenders. King traces with great care the intricacies of the emerging social 

networks of charity and philanthropy and offers a sense of the flow of particularly 

young, impoverished people through various public and private institutions whose 

limited resources were under constant pressure to change and adapt. The 

extension of the reformatory school idea was thus a practical response to


impromptu experiments in sentencing tried by local magistrates desperate to nip 

an apparently growing social problem in the bud. 

The decline of customary rights in an age of increasing individualism and 

anonymity is another theme pursued here. King’s two essays dealing with rural 

disputes over property rights and the customary practice by the rural poor of 

gleaning the fields after the harvest speak to the kinds of challenges to customary, 

communal practices that the spread of capitalism brought. Following Edward 

Thompson, King shows how two groups – the landowners and the rural poor – 

made use of the law and the courts to contest competing understandings of rights. 

He demonstrates that despite the disproportionate power accorded to landowners 

and the extension of legal protections for property rights that favoured the elite, 

the rural poor continued to exert their customary rights to glean and turned to 

collective action when their rights were threatened. He thus shows how the legally 

disenfranchised were able to exert power and to defy the strict interpretation of 

the law through a locally-based process of negotiation and ongoing social conflict. 

The cases he cites are clear examples of how the law made at the centre by way of 

high court rulings, does not always translate into an immediate alteration of 

traditional practice. 

Overall, King makes the case for the margins both creating and reforming the 

law. The drive behind initiatives to make new legislation very often came as a 

result of the day-to-day business of the magistrates, jury men, parish authorities, 

overseers and other low-level officials who were the workhorses of the criminal 

justice system. It was their daily work that highlighted the strengths and 

weaknesses of the early modern state and it was out of the localized, pragmatic 

and practical decision-making by these men and women that the law was forged. 

King shows just how important the piecemeal modifications of routine procedure 

to fit local circumstances were to gradually effecting changes in the law. 

Though legislation was written by elite experts at the political centre of 

English society, the application of the law is what matters to King. It was, he 

argues, the use of the law as a framework for dispute resolution and problem 

solving that was important. Those representatives of the state – the local justices 

of the peace most notably, but also parish and poor law officials, overseers, and 

later the police – who were face to face with the problems of social life were the 

real agents of the state in putting the law into practice. As King’s collection 

soundly demonstrates, when the work of these “less formal law-based aspects of 

justicing practice” (page 69) is situated in conjunction with the workings of the 

formal criminal justice system, the sources and motivations for shaping and 

remaking the law can be more fully appreciated. 

All three books make important contributions to the fields of criminal justice 

history, historical criminology, as well as institutional, political, social and legal 

history. These are three examples of top quality historical scholarship, based on 

careful and detailed research of a range of archival and printed sources, written in


clear and convincing style. Students and scholars will find the books of much use, 

but practitioners might also find in these books a number of historical insights 

into key questions of relevance to the administration of the law today – from the 

proper and best role for lawyers in the courtroom, the persistence of systemic 

gender biases in various institutional structures, to the role of the minor players in 

the overall network of people involved in making, shaping and using the law.

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