A West Coast Outlook on the Law?

Different courts take different approaches to the law. While the extent to which varying judicial perspectives on the interpretation of the law lead to dissimilar substantive results is difficult to quantify, the task of analyzing patterns in judgements offers the promise of a deeper understanding of judicial decision-making. In the US, the Ninth Circuit Court of Appeals (the federal appellate court covering the entire west coast) has been the focus of regular debate over its supposedly “activist” judiciary. Canada’s appellate courts have not been the subject of similar discussion, despite discernible trends in decisions from province to province – and particularly in British Columbia.

In an article published in the Osgoode Hall Law Journal in Spring 2009 (“Appealing Outcomes: A Study of the Overturn Rate of Canada’s Appellate Courts,” (2009) 47 Osgoode Hall L.J. 131), Michael Lubetsky and Joshua Krane undertook an empirical analysis of the number of appeals to the SCC which were made, heard, and allowed on a province-by-province basis. The study revealed that the rates for appeals to the SCC from BC were significantly higher than the national average. Further, based on the authors’ “comprehensive overturn rate” calculations, British Columbia’s Court of Appeal was overturned more often than those of all other provinces but Newfoundland (whose high rate of appeal stemmed from the unique situation of having a large number of appeals as of right in criminal matters resulting from a divided NLCA bench).

The authors found that the data from the BCCA was “consistent with the image of an avant-garde court providing the country’s most cutting edge jurisprudence.” An analysis of the most recent appeals to the SCC hailing from BC’s top court supports this conclusion. In each of the last five BCCA decisions ultimately heard by the SCC, the BCCA has taken what can be fairly characterized as an interpretation of the law favouring parties in positions of relative weakness or subject to the coercive power of the state. All but one of these decisions have been overturned by our top court.

R. v. Ellard
In R. v. Ellard (2008 BCCA 341, rev’d 2009 SCC 27), the BCCA heard an appeal from the third trial of Kelly Ellard, the woman ultimately convicted in the notorious beating death of Reena Virk. The BCCA allowed Ellard’s appeal from a conviction at trial and ordered a new trial. The crux of the majority’s decision was an evidentiary determination relating to the admissibility of prior consistent statements and the trial judge’s responsibility to instruct the jury with regards to the limited use of such statements. Under the law of evidence, a prior consistent statement of a witness is prima facie inadmissible, unless it is made in order to rebut an allegation of recent fabrication. In Ellard, the trial judge permitted the Crown to adduce evidence of a prior consistent statement made by a key witness, but failed to instruct the jury on the limited use that can be made of such a statement (it can only be used to rebut fabrication, not as evidence of the truth of the statement itself or to otherwise support a witness’ credibility). In allowing the appeal, the concurring majority judgments concluded that the witness’ prior consistent statement may have influenced the jury’s estimation of the reliability of the witness’ testimony in general, and that as such a limiting instruction from the judge was “imperative.”

The SCC ultimately overturned the BCCA in Ellard, restoring Ellard’s conviction on the basis that there was no real possibility that the prior consistent statement itself had any impact on the jury’s verdict (discussed on TheCourt.ca by Sona Dhawan here). The SCC also took a more restrictive interpretation of the potential for the prior consistent statement to support the witness’ reliability. Because the statements did not relate to an issue in dispute, the SCC found they did not bolster the witness’ reliability in the eyes of the jury; accordingly, the trial judge’s failure to give a limiting instruction was of little import.

The BCCA decision in Ellard suggests that the BCCA was willing to adopt a more lenient approach to assessing the potential for a jury to be improperly influenced about the reliability of prosecution evidence, and specifically the likelihood that a jury might draw a link between a prior consistent statement and the reliability of a witness’ evidence in general. The BCCA therefore protected the need for specific instructions to the jury about the limited use of prior consistent statements – a need which here worked to the benefit of a universally and deservedly reviled accused. Conversely, the SCC took a more pragmatic approach focused on the fact that there was no real chance that the trial judge’s error had any impact on the jury’s reasoning.

Greater Vancouver Transportation Authority v. Canadian Federation of Students

The BCCA was called upon to consider the limits to the Charter’s s. 2(b) guarantee of freedom of expression in Greater Vancouver Transportation Authority v. Canadian Federation of Students (2006 BCCA 529, aff’d 2009 SCC 31). The case involved a constitutional challenge to the policies of the Vancouver and BC transit authorities, policies which prohibited advertising likely “to cause offence to any person or group of persons or create controversy”, or which “advocates or opposes any ideology or political philosophy, point of view, policy or action, or which conveys information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office”. The Canadian Federation of Students and the BC Teachers’ Federation had attempted to place ads on the sides of buses encouraging young people to vote (the familiar “Rock the Vote” campaign) and raising awareness about the underfunding of schools, respectively, but were refused based on the above-mentioned policies.

After considering the factors laid out in the City of Montreal case (2005 SCC 62), the BCCA found that the complainants’ right to freedom of expression had been violated and declared the impugned policy to be of no force and effect. Central to the BCCA’s decision was its finding that the historical use of the advertising space was not a requirement for a finding that it was a “public place”. After engaging in its own analysis using the City of Montreal factors and s. 1 of the Charter, the SCC upheld the BCCA’s decision (discussed on TheCourt.ca by Daniel Del Gobbo here). While the BCCA and SCC decisions in Greater Vancouver are important in that they flesh out the analytical framework for considering violations of s. 2(b), the facts of the case hardly push the limits of freedom of expression. The advertising policies were so absurdly expansive and the proposed advertising so innocuous that the BCCA was not called upon to come to a more controversial determination on s. 2(b). Perhaps if it had been, the SCC would not have agreed – and the only SCC decision upholding the BCCA in the last five appeals heard from that province would have been decided differently.

United States of America v. Anekwu

In United States of America v. Anekwu (2008 BCCA 138, rev’d 2009 SCC 41),the BCCA again resolved evidentiary issues in favour of an accused, this time in the context of extradition proceedings. Anekwu was wanted in the US in regard to a series of telemarketing frauds. The Attorney General consented to his extradition and undertook the necessary steps to see that he was turned over to US authorities, which included seeking an order of committal from the Supreme Court of BC. In support of the committal order, the AG prepared a summary of evidence which might by used by the US in its prosecution of Anekwu. Anekwu challenged the admissibility of the summary of evidence gathered in Canada as being in violation of the rule against hearsay evidence.

The majority of the BCCA found in favour of Anekwu, setting aside the committal and surrender orders and ordering a new extradition hearing, and ruling that evidence to be used in an extradition proceeding must comply with the hearsay rule as applied in other domestic proceedings. In so doing, the BCCA effectively extended the protections of criminal law into the context of extradition proceedings. The SCC came to a different conclusion, interpreting the Extradition Act as giving rise to a modified approach to the hearsay rule which permitted the admission of evidence in summary form even though it did not meet the strictures of the traditional hearsay rule. The SCC’s decision (discussed on TheCourt.ca by Ankur Bhatt here) was based in large measure on practical concerns with the delay and expense of transposing the hearsay rule into extradition proceedings whole hog, whereas the BCCA’s exercise in statutory interpretation had led to a result which extended the benefits of the law of evidence to individuals subject to Canada’s power to turn over suspects to foreign authorities, regardless of procedural costs.

Galambos v. Perez

In Galambos v. Perez (2008 BCCA 91, rev’d 2009 SCC 48), the BCCA took it upon itself to ease the requirements for the existence of a fiduciary relationship, facilitating the finding of such a relationship in favour of a more vulnerable party in a relationship of imbalanced power with a potential fiduciary. The SCC unanimously reined in this expansion of fiduciary obligations (discussed on TheCourt.ca by Benjy Radcliffe here). The case involved a bookkeeper who had made substantial loans to the law firm where she was employed, and who found herself an unsecured creditor unable to recover her loans when the firm went bankrupt.

The BCCA’s would-be expansion of ad hoc fiduciary duties came in two forms: first, the finding that a power-dependency relationship may, in and of itself, give rise to a fiduciary duty (without a mutual understanding that one party would act in the other’s interests); and, second, the implication that a fiduciary duty may arise without the potential fiduciary having discretionary power to affect the potential beneficiary’s interests. The SCC rejected both propositions, confirming the traditional position that a power-dependency relationship is not sufficient and that discretionary power is necessary to ground a fiduciary duty. The BCCA’s novel attempt to expand the potential use of fiduciary duties for the benefit of ostensibly weaker parties was thus definitively rebuffed by the SCC.

R. v. Basi

The most recent BCCA decision reviewed by the SCC is R. v. Basi (2008 BCCA 297, rev’d 2009 SCC 52), a case involving criminal charges of corruption, fraud and breach of trust in relation to the privatization of BC Rail. The accused sought disclosure, and the Crown duly provided partially censored materials. The accused’s subsequent request for disclosure of unredacted copies of the material was met with a claim of informer privilege, accompanied by a request for an in camera and ex parte hearing to establish the claim of privilege. The trial judge declined to allow the accused to be present at the in camera hearing, but permitted the accused’s counsel to attend, subject to the giving of an undertaking not to disclose the information to the accused. The BCCA dismissed an appeal from the trial judge’s decision to permit the attendance of defence counsel, reasoning that the trial judge’s decision did not amount to a “disclosure order” (and was thus not subject to appeal under the Canada Evidence Act) or alternatively, if the decision was in fact a disclosure order, the trial judge’s device of excluding the accused persons and requiring an undertaking from counsel was sufficient to protect the informer privilege.

The SCC overturned the BCCA (discussed on TheCourt.ca by Ahsan Mirza here), primarily because of the top court’s conclusion the trial judge’s order effectively eviscerated the informer privilege, since the identity of the informer would almost inevitably be revealed to defence counsel – exactly what the privilege was intended to prevent. This analysis was buttressed by the practical reality that granting defence counsel knowledge of pertinent information without allowing them to disclose it to their client would place them in an “awkward and professionally undesirable position.” The SCC’s decision in Basi once again upheld the traditional boundaries of the law and, in this case, defended against an erosion of the well-established principle of informer privilege. Conversely, the BCCA decision appeared to allow for a creative circumvention of the informer privilege – to the benefit of accused persons’ ability to make full answer and defence to charges against them.

Conclusions

In each of the last five BCCA cases ultimately heard by the SCC, the BCCA has resolved the diverse issues raised in favour of the party in a position of weakness vis-à-vis their opponents: criminal accused, those seeking to enforce their rights under the Charter, those subject to extradition, and those harmed by virtue of a relationship with an arguable power imbalance. This is not explicitly reflected in the reasoning behind the BCCA decisions, but the results of the cases suggest a willingness to resolve ambiguities in the law in favour of the less powerful party. Although it would be imprudent to draw any inflexible generalizations based on such a small sample size, in combination with Lubetsky and Krane’s broader analysis these recent cases paint a picture of a progressive court willing to engage in significant judicial innovation.

The BCCA decisions have been met with almost universal disfavour at the SCC –a particularly interesting fact given McLachlin’s CJC’s former tenure on the BCCA. The SCC has taken a more restrictive approach to the development of the law, and appears to have given greater weight to pragmatic implications, such as: the irrelevance of a jury instruction which would not change the outcome of the case, the procedural burden of extending evidentiary rules into extradition proceedings, and the practical effect of allowing counsel to attend a hearing convened in camera specifically for the purpose of denying information to their client. While more research is needed to come to any firm conclusions, the interplay between the BCCA and SCC hints at fundamental philosophical differences about the application and development of the law.