RSS FeedSafe injection facilities and arbitrary government decisions
I often talk to friends or strangers about law. I remember a debate I had with someone once about the government. Can it make arbitrary decisions? I said yes, and he said, rather indignantly, no. His logic was that arbitrary means capricious with a tinge of tyranny. Doesn’t our democratic government respect the rule of law and make decisions based on reason?
But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.
Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.
The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.
In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.
The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.
Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.
Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
What can the mayor of Toronto really do?
Toronto will go to the polls to elect its mayor on October 25 this year. There is a lot of media interest in mayoral candidates and scandals surrounding some of them. The incumbent mayor, David Miller, also attracted media attention and intense feelings among both his supporters and detractors. But is the mayor’s job really that important? What actual powers does the mayor of Toronto have? If we look at the law, the answer is rather surprising. Despite all the attention, the mayor of Toronto doesn’t decide much, and the city’s governance is mostly in the hands of the city council and ultimately the provincial legislature.
The word “Toronto” has two meanings: a place and a corporation. The second meaning refers to the organization that governs the city. This organization is a special corporation created by Ontario legislature through the City of Toronto Act. As a creature of statute, the city has only powers granted by the province. The same statute grants powers to the mayor and to the city council and authorizes the city council to delegate its powers to the mayor. That’s why to get a general idea of the mayor’s powers, you need to review both the City of Toronto Act and city council by-laws.
The city, the mayor, and the city council must exercise their powers within the limits set by Ontario legislature. All three owe their existence to provincial statute and can be abolished by provincial statute. The 1997 ruling in East York v. Ontario confirmed that municipalities do not have an “autonomous” constitutional status and are subject to the will of provincial parliaments. In that case, a group of Toronto residents and some of the municipalities making up the Metro Toronto area challenged amalgamation of cities around the old Toronto into the megacity where we live today. Their challenge failed and the appeal was dismissed.
In 1994, the Supreme Court ruled that the city of Vancouver may not boycott Shell for its cooperation with the apartheid South Africa. The Court’s majority decided that such boycott was not for a municipal purpose as set by British Columbia legislation, specifically the Vancouver Charter, which is the equivalent of the City of Toronto Act. These cases show that municipalities and their mayors are subject to provinces’ will and must act within the authority given by provinces.
The word “mayor” appears only five times in the City of Toronto Act. The statute grants the mayor only two roles: the head of the city council and the “chief executive officer of the City.” In the first role, the mayor’s powers are “to preside over meetings of council so that its business can be carried out efficiently and effectively; to provide leadership to council; to represent the City at official functions; to carry out the duties of the head of council;” and to give the council certain information and recommendations. As the city’s CEO, the mayor must “uphold and promote the purposes of the City; promote public involvement in the City’s activities; act as the representative of the City both within and outside the City, and promote the City locally, nationally and internationally; participate in and foster activities that enhance the economic, social and environmental well-being of the City and its residents.”
The powers of the highly-contested mayor’s office appear almost ceremonial. The mayor doesn’t control the police, cannot influence legislation in his jurisdiction as Premiers or the Prime Minister can, and cannot issue executive orders. And the mayor doesn’t run the city’s operations: it’s the city manager’s job.
The mayor does have one truly great power, but only in emergencies. The City of Toronto Act allows the city council to delegate its legislative authority in limited circumstances. Under Chapter 59, Article VI of the Toronto Municipal Code, the mayor takes over the council’s legislative authority in emergencies. That’s what happened in 1999, when then mayor Mel Lastman called in the Canadian Forces after a massive snowfall in Toronto blocked ambulances from reaching patients.
All in all, Ontario legislature leaves it for the city council to govern Toronto. The council is like a corporate board of directors and the city manager’s office is like managers of a corporation. The mayor can’t do much without the council or the city manager. But the nature and the powers of the mayor’s office certainly make for a lot of publicity, which probably explains why there is so much hoopla over Toronto mayor’s elections this fall.
Pulat Yunusov is a Toronto civil litigation lawyer.
(Post sponsored by AdviceScene)
Hypnosis evidence and murder
Man admits committing 1992 murder
A former Canada Post supervisor admitted today to the 1992 killing of his girlfriend, two years after the Supreme Court of Canada threw out his conviction in a landmark decision because key evidence was obtained through hypnosis.
No bail for Conrad Black
Lord Black fails in bid for bail
Disgraced peer Lord Conrad Black will remain in jail pending an appeal over his fraud conviction, the US Supreme Court has ruled.
Major criminal law Charter cases to be released Friday: Grant, Suberu, Harrison
I have huge news for anyone interested in criminal law (and indeed, many accused persons).
After years of anticipation, the Supreme Court of Canada is finally set to release some of the most important criminal law Charter of Rights decisions since the Charter was introduced. This will have implications across Canada for thousands of criminal cases currently before the courts.
According to the latest bulletin, decisions in the following cases will be released on Friday, July 17, 2009:
- Musibau Suberu v. Her Majesty the Queen (Crim.) (Ont.) (31912)
- Donnohue Grant v. Her Majesty the Queen (Crim.) (Ont.) (31892)
- Curtis Shepherd v. Her Majesty the Queen (Crim.) (Sask.) (32037)
- Bradley Harrison v. Her Majesty the Queen (Crim.) (Ont.) (32487)
These cases promise to redefine the way that evidence is excluded from a criminal trial after a Charter breach has been found. The application of Charter, s. 24(2), and specifically the test for whether the adminstration of justice would be brought into disrepute by the admission of the evidence, is expected to be significantly different after Friday. The old test in R. v. Collins, [1987] 1 S.C.R. 265 was certainly overdue for a review after over twenty years of application and modification by trial and appellate courts.
Summaries of the four cases and the issues can be found here.
Political ad bans on transit are unconstitutional
Top court strikes down bus ad ban
Here is the text of the ruling.
(post sponsored by advicescene.com)
Amicus Curiae sits down with Justice Binnie of the Supreme Court of Canada
Ahmed Farahat of UWO’s new law paper interviews Justice Ian Binnie. From the February issue of Amicus.
If I can start by asking you: when did you first decide to embark on a career in law?
I think when I was in college. I arrived at it by a process of elimination. I could see all sorts of jobs that I was congenitally incapable of doing. I did a lot of debating in my undergraduate years, and becoming a barrister seemed like fun.
I noticed in your biography on the Supreme Court’s website that you did your LL.B. in Cambridge. Why did you get your law degree from the UK?
At the time I went, Ontario accepted entry to the British bar to go straight to the Bar Admission Course. So I thought: here is an opportunity to see another part of the world and get an educational qualification that is recognized in Ontario. Unfortunately, when I was away they changed the rules and when I came back, they said well, now you have to get an LL.B. from an Ontario law school. Seemed like a good idea at the beginning.
How was the Cambridge experience different from the one you had here at the University of Toronto?
The experience in the UK is totally different from University of Toronto. In the UK, they studied medieval English, Roman law, and all kinds of topics that were absolutely of no practical importance whatsoever. Toronto, when I got there, was experiencing quite a golden age with Bora Laskin and many interesting professors. So there was eventually no duplication at all between the three years I spent at Cambridge and the two years I spent at Toronto. And there is no doubt that Toronto’s education was of a higher order. The English system has law as an undergraduate degree, so you go straight from high school to law, whereas in Canada, students already completed their undergraduate degree. In England, there was no real reason to go into law other than escaping history and literature and all the other courses you performed poorly in during high school.
International influence of supreme courts
The U.S. Supreme Court is now guiding fewer nations says the New York Times.
And whose constitutional influence is on the rise at the same time? Several experts quoted by the article point at the Canadian Supreme Court.
Follow-up: SCC tosses “dead fly” appeal
Yesterday I explained the background to the Mustapha v. Culligan of Canada cases. As expected, the Supreme Court issued its decision today. The full text of the lovely (read: short) decision can be be found here: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
In a unanimous decision written by McLachlin CJC, the court threw out the appeal against Culligan. The reasons for judgment differed from those of the Ontario Court of Appeal (2006 CanLII 41807), with the Supreme Court finding that the negligence action failed at the remoteness of damages stage.
Here’s a summary:
Duty of care (para 6): As a manufacturer, Culligan owed a duty of care to the consumers of its products as per Donoghue v. Stevenson, [1932] A.C. 562 (HL).
Standard of care (para 7): The court was a little light on its reasons here, because the issue was not seriously argued after the trial level. The trial judge heard evidence that apparently flies were present in the bottling room and (obviously) could get into the bottles in spite of safeguards implemented by the company. Gross.
The Supreme Court concluded simply that Culligan breached the standard of care expected of it by not ensuring that water intended for consumption would be free of contaminants.
Damages (paras 8-10): The SCC reiterated that minor upset, anxiety, disgust, etc. are not recoverable in tort. However, Mr. Mustapha suffered recognizable and serious psychiatric trauma (namely a major depressive disorder coupled with anxiety and phobia). As such, Mr. Mustapha’s psychological injuries were very serious and sufficiently interfered with his quality of life to be recoverable.
Causation (paras 11-18): This was the crux of the SCC’s judgment:
“in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do.” (para 18, my emphasis)
The trial judge was mistaken in applying a subjective standard which took into account Mr. Mustapha’s past history, circumstances, and cultural factors.
The chief justice did make one important qualification to the objective standard. At para 17, she writes:
“In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant.”
Conclusion (para 20): Mr. Mustapha’s appeal was dismissed with costs.
So there we have it.
“Dead fly in water bottle” case to be decided by Supreme Court tomorrow
One of the more interesting cases from first year Contracts/Torts class concerned a man, Mustapha, who sued Culligan Water after discovering a dead fly in one of its 5-gallon bottles. The facts of the case are sort of like Canada’s version of Donaghue v. Stevenson, [1932] A.C. 562 (HL).
According to the trial decision, (Mustapha v. Culligan of Canada Ltd., 2005 CanLII 11990 (ON S.C.)), Mr. Mustapha kept what can only be described as a meticulously sanitized house. Both he and his wife were obsessive about cleanliness. He purchased water from Culligan relying on the promise that it was cleaner and healthier than regular water.
When Mr. Mustapha’s wife was opening a new bottle and placing it in the dispenser, she noticed something dark floating in it. Upon closer inspection, she discovered to her horror that it was a dead fly. She immediately vomited. Mr. Mustapha also vomited. This went on for some time.
Mustapha developed a psychiatric illness in response to seeing the fly, and he suffered for months. He would have nightmares involving dead flies. He could not sleep for more than four hours per night. He could not drink water, and he needed therapy before he could take a proper shower. He even lost interest in sex.
Finally, Mr. Mustapha sued.
Despite the trial court’s characterization of Mr. Mustapha’s reaction as “objectively bizarre” (at para 180), he was awarded $342,000 in damages.
Culligan appealed (2006 CanLII 41807), and the Court of Appeal for Ontario reversed the trial decision.
As Blair J.A. explained, the extent of Mr. Mustapha’s psychological trauma was completely out of proportion and therefore could not have been reasonably foreseen by the defendant company (at para. 20):
“The issue of tort law raised on this appeal is whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident – the sight of a dead fly in a bottle of consumer water. In my view, the answer to this question is no.”
The test for tort liability set out in Mustapha was summarized at para. 49:
“Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care – and, therefore, for liability – in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant�s careless conduct. That is what reasonable foreseeability means.”
The Court of Appeal overturned Mr. Mustapha’s damage award and ordered him to pay $30,000 in costs to Culligan.
Mustapha then appealed up the chain.
The Supreme Court granted leave in June of last year. It is expected to deliver its judgment tomorrow. This should be interesting.
