Categories
Criminal Law

Criminal Law Resources

Canadian criminal law is codified under an Act of Federal Parliament called the Criminal Code:
https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html

The 1867 Constitution Act divides the authority to make criminal laws and the authority to investigate and prosecute crimes. Section 91(27) authorizes the federal government to create legislation in relation to criminal law. And section 92(14) authorizes the provincial and territorial governments to investigate and prosecute criminal offences in their courts, which are created by their respective provincial court acts.

Canadian Criminal Law links:

Categories
Court Rules

Judges may sanction lawyers for overreaching in the US

In the US Federal Court system, judges may sanction lawyers for overreaching under Rule 11:

Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

 

Sanction Definition

In law, a sanction is defined as:

  • a provision of a law enacting a penalty for disobedience or a reward for obedience.
  • the penalty or reward.

In international law, a sanction is an action by one or more states toward another state calculated to force it to comply with legal obligations.

Court Sanctions

Rule 11 has been effective in deterring lawyers from making  …

Categories
Lawyers

Conflict of Interest and Independent Legal Advice

What is a Conflict of Interest?

Conflict of Interest arises when our interest conflicts with another’s to whom we owe a duty. Two basic types of conflict of interest are:

  1. A person may have a conflict of interest when representing two parties who have conflicting interests with each other.
  2. If a person in a position of trust a competing personal or professional interest, they should recuse themselves, as they will also have a conflict of interest.

Rule 3.4 of the Rules of Professional Conduct of the Law Society of Upper Canada of Ontario states:

“3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.”

Common law jurisdictions, such as Ontario, use the adversarial legal problem-solving method, you need strict rules of confidentiality and solicitor and client privilege so that the lawyer and the client can talk openly between each other and the lawyer and decide on the best course of action to protect his or her client. The opposing party does the same and when the two cannot agree they take it to court for the Judgement of the court which evaluates the law and facts of each side and reaches a decision.

Conflict of Interest by a lawyer representing both sides in a courtroom before a judge and jury

This adversarial approach often creates acrimony between the disputing parties, especially when one lawyer tries to overreach and obtain a result for their client that a court would not ordinarily grant. Since overreaching is common, there is a need for civility in and out of the court room to ensure that the conflict is resolved with proper procedural rules. In some other jurisdictions, such as the US Federal Court system, Judges may sanction lawyers for overreaching by presenting to the court a pleading, written motion, or otherwise:

(1) Presenting something for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) Making unwarranted claims, defenses, and other legal contentions or by making a frivolous argument to extend, modify or reverse existing law or for establishing new law;

(3) Making factual contentions that have no evidentiary support or unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery; or

(4) Making unwarranted factual contentions on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

However, the adversarial system is better than the alternative: having a lawyer that you can’t trust to have your best interests in mind. Not everything is black and white and sometimes there are valid arguments to extend, modify or reverse existing law or for establishing new law. How could one person effectively argue for two competing clients? It is hard enough for a judge to remain impartial when parties are unrepresented.

Examples of a Conflict of Interest for Lawyers:

  • A lawyer acting for opposing parties in a dispute.
  • A lawyer asked to advise a client in respect of a matter in which the lawyer, the lawyer’s partner or associate or a family member has a material direct or indirect financial interest.
  • A lawyer may have a conflict of interest when representing two parties who have conflicting interests with each other.
    Eg. acting in a joint retainer where the interests of the parties diverge.
  • A lawyer cannot act directly adverse to the immediate legal interests of a current client, without the clients’ consent. This bright line rule applies even if the work done for the two clients is completely unrelated. Canadian National Railway Co. v. McKercher LLP, [2013] 2 S.C.R. 649
  • A lawyer representing both a husband and wife in family law matters will have a conflict of interest in divorce and separation matters.
  • A lawyer acting for more than one client in separate but related matters because of the nature of the retainers.
  • Anyone
  • A lawyer in a close relationship, sexual or otherwise, with the wife (bi or straight) and representing the husband and visa versa.
  • A lawyer in a close relationship, sexual or otherwise, with opposing counsel.
  • A lawyer representing both a buyer and seller in the sale of land.
  • A lawyer may not represent its firm against the interests of its former client.
  • A judge or arbitrator hearing a matter who would have a conflict representing either party or has a bias against either party.
  • A judge or arbitrator hearing a matter who represented a third party who had a conflict with either party.
  • Anyone acting for clients in unrelated matters where the duty of confidentiality owed to one client may be inconsistent with the duty of candor owed to another client depending on whether information obtained by the person during either retainer would be relevant to both clients. Eg. Lawyer, real estate agent, doctor, etc.
  • A real estate agent may have a conflict of interest when representing both the buyer and the seller.
  • An insurance adjuster will have a conflict of interest if they are rewarded for denying valid claims.
  • A doctor will have a conflict of interest when examining persons they don’t consider to be their patients if they are rewarded by insurance companies for providing reports that fail to describe the true nature and extent of a person’s injury.

A “Fantastic” Conflict of Interest Between Attorney And Client

Independent Legal Advice

Lawyers are required to ensure that parties to a transaction or matter get independent legal advice in a variety of scenarios.

  1. If a husband and wife insist on having one lawyer write a separation agreement, the lawyer can represent only the husband or the wife, and the other spouse will have to take the proposed separation agreement to another lawyer to get independent legal advice.

 

Conflicts Between Lawyer & Client

 

MPRE – Conflicts Between Lawyer & Client – Part 1

MPRE – Conflicts Between Lawyer & Client – Part 2

 

MPRE – Conflicts Between Lawyer & Client – Part 3

MPRE – Conflicts Between Client & 3rd Parties – Part 1

 

Categories
Criminal Cases

Unlawful assembly while wearing a mask or other disguise

Unlawful assembly while wearing a mask or other disguise is a criminal offence in Canada, under section 66(2) of the Criminal Code of Canada.

Punishment for unlawful assembly

66 (1) Every one who is a member of an unlawful assembly is guilty of an offence punishable on summary conviction.

Concealment of identity

(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 66; 2013, c. 15, s. 3.

Why is it illegal to wear a mask in an unlawful assembly?

Otherwise law-abiding citizens often become violent while wearing a mask.

In any violence done by a mask-wearer, the human is not considered responsible; everyone understands the crime was committed by the mask itself.

https://aeon.co/essays/how-masks-explain-the-psychology-behind-online-harassment

On August 20, 2017, Blackbloc and Antifa members assembled in Quebec City. They belligerently confronted Quebec French people and

 

Some Blackbloc and Antifa members even brutally assaulted an older Quebec Frenchman on the head in Quebec while he carried an old Quebec patriote flag on August 20, 2017.

Old French man in Quebec carried an old Quebec patriote flag on 2017 Aug

 

P flag https://en.wikipedia.org/wiki/Patriote_flag

The Patriote flag was used by the Patriote movement in Lower Canada (present-day Quebec) between 1832 and 1838.

Some theories about its origins claim that the colour green was adopted to represent the Irish of Lower Canada, the colour white for the “French Canadians,” and red the English of the territory. Some also say that the tricolour style was inspired by the French tricolour, symbol of the French Revolution that inspired the Patriotes.[citation needed] It became the national flag of the Republic of Lower Canada at the Declaration of Independence of Lower Canada in 1838. Currently, it is used by contemporary Quebec independence supporters as a symbol of their movement and ideal. It is often seen in crowds at Quebec National Day concerts and gatherings and was featured at the voting day assembly of YES supporters of the 1995 Quebec referendum on independence.

https://en.wikipedia.org/wiki/Patriote_movement

Why should a man exercising political speech be assaulted by masked criminals?

 

Categories
Rule of Law

Can family represent you in court?

The PEI Court of Appeal answered the question about whether can family represent you in court in Ayangma v. Charlottetown (City) et al., 2017 PECA 15. In considering whether a father could represent his son in court, the court of appeal said yes after reviewing the following criteria:

  1. The extent of the representation requested;
  2. Whether the agent has a family relationship with the litigant (Pacer Enterprises Ltd. v. Cummings2004 ABCA 28 (CanLII), at para.13; Steele v. Rendell, supra);
  3. The complexity of the case (Ofume, supra);
  4. Vulnerability and potential harm to the lay litigant (Ofume, supra);
  5. Competence.  A judge should not embark on a competence inquiry as that would raise insurmountable difficulties (R. v. Romanowicz, supra,  at paras.45-50), but that does not mean that competence is not a relevant consideration.  InOfume the court found “capability” of the agent to be a factor.  I will give two examples when competence would be a relevant factor.  The first is where a family litigant brings to court his/her family member/friend who is an accountant to assist in the examination or cross-examination of a witness on the issue of the income of a self-employed person.  All else being equal, the court may find that the agent’s particular competence would be helpful to both the litigant and the court.  The second is where the competence of the agent is so overwhelmed by the complexity of the trial, or the agent is so obviously incompetent that it would impugn the integrity of the process (Romanowicz, supra, para.83).  Mere unease about the agent’s competence will not suffice.
  6.       Whether the agent’s appearance would undermine the integrity of the proceedings. Romanowicz, supra, at paras 56 and 74, and R. v. Gouchie2006 NSCA 109 (CanLII), both provide a number of examples where the agent’s appearance could undermine the integrity of the proceedings.  For example, agents who are facing criminal charges involving interference with the administration of justice; or whose background demonstrates pervasive dishonesty or blatant disrespect for the law; or who have convictions for crimes of dishonesty or whose criminal record reveals offences or other discredible acts which permit the conclusion that they could not be relied upon to conduct a trial ethically; or agents who have a conflict of interest with the litigant; or who have demonstrated an intention not to be bound by the rules of procedure.  In any of these cases the motions judge might exercise his or her discretion to prohibit the agent from appearing.
  7.       Conditions.  In a proper case a judge might exercise the court’s inherent discretion to allow the agent to appear subject to conditions (Ofume).  For example, the respondent City states that one of the issues in this case will involve protection of an informant’s identity.  This invokes the issue of informer privilege which is a rule of fundamental importance to the workings of the criminal justice system.  As Bastarache J. stated inNamed Person v. Vancouver Sun2007 SCC 43 (CanLII), [2007] 3 S.C.R. 253, at para.30:… No case‑by‑case weighing of the justification for the privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time.
  8. Should a judge exercise the court’s inherent discretion to allow the father to appear in this case, the judge might consider a condition that the father not be permitted to ask any questions which might tend to reveal the identity of any police informant.  The informer privilege rule applies in civil cases as well as criminal cases.

[72]           I would allow the appeal and remit this matter back to the Supreme Court of Prince Edward Island for a determination of whether or not the court should exercise its inherent jurisdiction to allow the father to represent his son considering all the relevant factors.

Justice John K. Mitchell

I AGREE:      Chief Justice David H. Jenkins

I AGREE:     Justice Michele M. Murphy

https://www.canlii.org/en/pe/pescad/doc/2017/2017peca15/2017peca15.html

The decision shocked some lawyers because

Categories
SLAPP

File a defence or bring a motion to dismiss a SLAPP case?

Do I file a defence or bring a motion to dismiss a SLAPP case?

Ontario enacted an anti-SLAPP statute to stop “strategic lawsuits against public participation” defamation cases in 2015.

In United Soils Management Ltd. v. Katie Mohammed, 2017 ONSC 904, COURT FILE NO.: CV-16-560261, the Ontario Superior Court decided that since the defendant filed her motion to dismiss before she filed her Statement of Defence, she could not later file her defence until after her motion was heard. In the end, Justice Penny ruled:

[23]           Accordingly, I grant the appeal. The statement of defence and counterclaim ought not to have been delivered in the action after the defendant brought her motion to dismiss under s. 137.1. That step was contrary to s. 137.1(5) and must be set aside. However, the defendant shall be entitled to delivery a supplementary affidavit limited to attaching her proposed defence and counterclaim as an exhibit. This shall be done within 7 days. The plaintiff is at liberty to file a supplementary affidavit limited to filing its proposed reply and defence to counterclaim. This shall be done within a further 7 days. Each party may conduct one additional hour of cross-examination limited to new issues, not previously examined on, arising solely out of the proposed pleadings. There shall be no further motions before the return of the anti-SLAPP motion, subject only to the direction of the judge hearing the anti-SLAPP motion.

Costs

[24] The plaintiff was successful on the motion. However, it was an entirely technical and Phyrric victory given my disposition. The plaintiff turned a molehill into a mountain. The costs of this motion are fixed in the amount of $7,500 inclusive of all fees, disbursements and applicable taxes, payable to the defendant in the cause.

United Soils Management Ltd. v Katie Mohammed, 2017 ONSC 904

Katie Mohammed had been hit with the libel suit after she posted comments online regarding a gravel pit in her community.

Subsection 9 of the anti-SLAPP provisions of the Courts of Justice Act, s. 137.1, allows the court to award damages if the judge finds the plaintiff brought the proceeding in bad faith or for improper purpose.

In the end, Katie Mohammed won her motion to dismiss and the Justice Lederer awarded her an additional $7500 in damages.

See the details in these articles:

How an Ontario mom fended off a $120K libel lawsuit over her Facebook posts

http://www.cbc.ca/radio/asithappens/as-it-happens-friday-edition-1.4175492/how-an-ontario-mom-fended-off-a-120k-libel-lawsuit-over-her-facebook-posts-1.4175496

Stouffville woman awarded damages in SLAPP case

http://canadianlawyermag.com/legalfeeds/3941/stouffville-woman-awarded-damages-in-slapp-case.html

Sabrina Callaway represented Katie Mohammed.

Anti-SLAPP statute amended the Courts of Justice Act

This anti-SLAPP statute amended the Courts of Justice Act by inserting section 137.1:

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Procedural matters

Commencement

137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced. 2015, c. 23, s. 3.

Motion to be heard within 60 days

(2) A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court. 2015, c. 23, s. 3.

Hearing date to be obtained in advance

(3) The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served. 2015, c. 23, s. 3.

Limit on cross-examinations

(4) Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants. 2015, c. 23, s. 3.

Same, extension of time

(5) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Appeal to be heard as soon as practicable

137.3 An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Stay of related tribunal proceeding

137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal. 2015, c. 23, s. 3.

Notice

(2) The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a) notice of the stay; and

(b) a copy of the notice of motion that was filed with the tribunal. 2015, c. 23, s. 3.

Duration

(3) A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4). 2015, c. 23, s. 3.

Stay may be lifted

(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a) the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b) the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay. 2015, c. 23, s. 3.

Same

(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal. 2015, c. 23, s. 3.

Statutory Powers Procedure Act

(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Application

137.5 Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2015 received first reading. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Courts of Justice Act: https://www.ontario.ca/laws/statute/90c43

 

Categories
Definitions

Candor

Police officers and lawyers both have a duty of candor to a court, whether they are testifying under oath or not. This applies in Canada and the USA.

Duty of Candor

Duty of candor refers to duty of a public authority to disclose material facts. The general duty of candor requires attorneys to be honest and forthright with courts. The attorneys should also refrain from deceiving or misleading courts either through direct representations or through silence.

can·dor
ˈkandər/
noun
  1. the quality of being open and honest in expression; frankness.
    “a man of refreshing candor
    synonyms: franknessopennesshonesty, candidness, truthfulnesssincerity, forthrightness, directness, plain-spokenness, bluntness, straightforwardness, outspokenness;

    informal telling it like it is
    “I’m not sure he appreciated my candor”

Have you heard what every witness in the US says when they give an oath on TV?

Oath in California:

You do solemnly state that the testimony you may give in the case now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God.

Oath in the United States

Oath:

Do you solemnly (swear/affirm) that you will tell the truth, the whole truth, and nothing but the truth, (so help you God/under pains and penalties of perjury)?

Swear may be replaced with “affirm”, and either “so help you God” or “under pains and penalties of perjury” may be used; all oaths and affirmations are considered to be equivalent before the law.[13] These modifications to the oath were originally introduced in order to accommodate those who feel uncomfortable swearing religious oaths, such as Quakers and Catholics, as well as to accommodate the irreligious. Some Bibles instruct people to never swear an oath. Other versions say to not swear by anything, not even your Mother’s grave.

Matthew 5:34

But I tell you not to swear at all: either by heaven, for it is God’s throne;

34“But I say to you, make no oath at all, either by heaven, for it is the throne of God, 35or by the earth, for it is the footstool of His feet, or by Jerusalem, for it is THE CITY OF THE GREAT KING. 36“Nor shall you make an oath by your head, for you cannot make one hair white or black. 37“But let your statement be, ‘Yes, yes’ or ‘No, no’; anything beyond these is of evil.

http://biblehub.com/context/matthew/5-34.htm

James 5:12

New International Version http://biblehub.com/james/5-12.htm
Above all, my brothers and sisters, do not swear–not by heaven or by earth or by anything else. All you need to say is a simple “Yes” or “No.” Otherwise you will be condemned.

http://www.slate.com/articles/news_and_politics/explainer/2004/04/where_did_we_get_our_oath.html

 In United States v. Ward, the Ninth Circuit Court of Appeals ruled that certain other modifications of the oath were acceptable so long as they demonstrated “a moral or ethical sense of right and wrong”.[15]

Oath in Canada:

Affirmation:

I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth. Canada Evidence Act (R.S.C., 1985, c. C-5), s. 14

 

Categories
Criminal Cases

RCMP applicant arrested for being too honest

It is important that all RCMP officers display candor when completing forms and testifying. In this case, an RCMP applicant was arrested for being too honest, according to some women.

Ms. Barbara George applied to join the RCMP. Part of the screening process involved a questionnaire which asked if she had “ever engaged in sexual activity with someone who was under the age of 16”. Well, she was not sure, so she asked her 17-year-old son, “How old was your friend C.D.?” When she found out C.D. was not 17, but only 14, she “felt panic.” She nevertheless submitted the questionnaire and admitted to the RCMP that she had engaged in sexual activity with a minor. Consequently, she was charged with two Criminal Code offences: (1) sexual interference (s. 151 ); and (2) sexual assault (s. 271 ).

RCMP Applicant Denied Job

It is unfortunate because a trial court judge found that Ms. George was ultimately not guilty of any crime and she displayed an unusual level of candor that the RCMP desperately needs.

The Crown appealed. The majority opinion in the Court of Appeal allowed the appeal, quashed the acquittals, and ordered a new trial. Ms. George appealed to the Supreme Court of Canada:

Crown appeals against acquittals in proceedings by indictment are limited to questions of law alone. The trial judgment concerned indictable offences and contained no errors of law. As a result, the Court of Appeal lacked jurisdiction to interfere.

The appeal should be allowed and the acquittals restored.

The RCMP needs Honest Officers

I have cross-examined a former-RCMP officer who flat out lied under oath and his lawyers admitted it during a break in the cross-examination. The witness claimed that he was dismissed without cause from the RCMP after working for them for 3 years. However, his affidavits didn’t reveal this fact. In fact, he embellished his credentials in his affidavit. The witness was working an investigator and his evidence was instrumental in getting a Federal Court to transfer a very valuable domain name, michaels.ca, to a very rich corporation for the cost of some litigation. I hope to set aside that judgement soon.

 

SUPREME COURT OF CANADA: R. v. George, 2017 SCC 38

 

Citation: R. v. George, 2017 SCC 38 Appeal heard and Judgment rendered: April 28, 2017

Reasons delivered: July 7, 2017

Docket: 37372

 

Between:

Barbara George

Appellant

 

and

 

Her Majesty the Queen

Respondent

 

 

Coram: Abella, Moldaver, Karakatsanis, Gascon, and Côté JJ.

 

Reasons for Judgment:

(paras. 1 to 29)

Gascon J. (Abella, Moldaver, Karakatsanis and Côté concurring)

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

  1. v.george

Barbara George                                                                                              Appellant

v.

Her Majesty the Queen                                                                               Respondent

Indexed as: R. v. George

2017 SCC 38

File No.: 37372.

Hearing and judgment: April 28, 2017.

Reasons delivered: July 7, 2017.

Present: Abella, Moldaver, Karakatsanis, Gascon and Côté JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Defences — Mistake of age — Appeals — Jurisdiction of Court of Appeal — Verdict of acquittal — Accused charged with sexual offences against youth — Availability of mistake of age defence limited by requirement that accused took all reasonable steps to ascertain complainant’s age — Whether trial judge made legal errors in reasonable steps analysis — If so, whether errors were sufficiently material to justify appellate intervention — Criminal Code, R.S.C. 1985, c. C‑46, s. 150.1(4) .

When G was 35 years old, she had sex with C.D., a male youth who was approximately 14 and a half. At the time, she presumed that C.D. was around 17. G was charged with the offences of sexual interference and sexual assault. Her only available defence was mistake of age. Section 150.1(4)  of the Criminal Code  limits the availability of the mistake of age defence by requiring that the accused took all reasonable steps to ascertain the age of the complainant. The trial judge acquitted G of both offences based on a reasonable doubt about whether the Crown proved that she had failed to take all reasonable steps to determine C.D.’s age. The majority of the Court of Appeal allowed an appeal, quashed the acquittals and ordered a new trial.

Held: The appeal should be allowed and the acquittals restored.

Crown appeals against acquittals in proceedings by indictment are limited to questions of law alone. The trial judgment concerned indictable offences and contained no errors of law. As a result, the Court of Appeal lacked jurisdiction to interfere.

To convict an accused person who demonstrates an air of reality to the mistake of age defence, the Crown must prove beyond a reasonable doubt either that the accused person did not honestly believe the complainant was at least 16 or did not take all reasonable steps to ascertain the complainant’s age. Determining what raises a reasonable doubt is a highly contextual, fact‑specific exercise. The more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. In this case, the trial judge considered various factors, including C.D.’s physical appearance, behaviour and activities, the age and appearance of C.D.’s social group, and the circumstances in which G had observed C.D.

Whether an error is legal generally turns on its character, not its severity. The majority of the Court of Appeal erred by translating strong opposition to the trial judge’s factual inferences into supposed legal errors. The trial judge did not rely on C.D.’s level of sexual experience as revealed by the sexual encounter itself. Rather, the trial judge considered information known to G before sexual contact, such as how C.D. came to her bedroom uninvited and spoke with her for several hours about various topics, many reflecting maturity, others suggestive in nature. No legal error arises from this. This was a reference to C.D.’s conduct in the hours before the sexual contact, a factor reasonably informing G’s perception of C.D.’s age before sexual contact. The trial judge also did not err by considering evidence that did not precede the sexual encounter. Reasonable steps must precede the sexual activity but requiring that the evidence to prove reasonable steps must also precede the sexual activity conflates the fact to be proven with the evidence that may be used to prove it. When determining the relevance of evidence, both its purpose and its timing must be considered. Evidence properly informing the credibility or reliability of any witness, even if that evidence arose after the sexual activity in question, may be considered by the trial judge. Similarly, evidence demonstrating the reasonableness of the accused person’s perception of the complainant’s age before sexual contact is relevant, even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity.

Even if the trial judge had made legal errors, they would not have justified the intervention of the Court of Appeal. The threshold of materiality required to justify appellate intervention in a Crown appeal from an acquittal is an error about which there is a reasonable degree of certainty of its materiality. That threshold is not met in this case. There was no reasonable degree of certainty that the alleged errors were material to the trial judge’s verdict.

Cases Cited

Referred to: R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274; R. v. P. (L.T.) (1997), 113 C.C.C. (3d) 42; R. v. K. (R.A.) (1996), 106 C.C.C. (3d) 93; R. v. Tannas, 2015 SKCA 61, 21 C.R. (7th) 166; R. v. Gashikanyi, 2015 ABCA 1, 588 A.R. 386; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481; R. v. Osborne (1992), 17 C.R. (4th) 350; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Morrisey (1995), 97 C.C.C. (3d) 193; R. v. Mastel, 2011 SKCA 16, 84 C.R. (6th) 405; R. v. Morin, [1988] 2 S.C.R. 345.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 150.1(1) 150.1(2.1) 150.1(4) 151 153 271 273.1(2) (c), 676(1) (a).

Authors Cited

Benedet, Janine. Annotation to R. v. Mastel (2011), 84 C.R. (6th) 405.

Benedet, Janine. Comment on R. v. Tannas (2015), 21 C.R. (7th) 166.

Maleszyk, Anna. Crimes Against Children: Prosecution and Defence, vol. 1. Aurora, Ont.: Canada Law Book, 2001 (loose‑leaf updated April 2017, release 32).

Manning, Mewett & Sankoff: Criminal Law, 5th ed., by Morris Manning and Peter Sankoff. Markham, Ont.: LexisNexis, 2015.

Stewart, Hamish C. Sexual Offences in Canadian Law. Aurora, Ont.: Canada Law Book, 2004 (loose‑leaf updated March 2017, release 25).

Vandervort, Lucinda. “‘Too Young to Sell Me Sex?!’ Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker” (2012), 58 Crim. L.Q. 355.

APPEAL from a judgment of the Saskatchewan Court of Appeal (Richards C.J. and Jackson and Whitmore JJ.A), 2016 SKCA 155, 344 C.C.C. (3d) 543, [2016] S.J. No. 637 (QL), 2016 CarswellSask 754 (WL Can.), setting aside the accused’s acquittals for sexual interference and sexual assault entered by Kovach J. and ordering a new trial. Appeal allowed.

                    Ross Macnab and Thomas Hynes, for the appellant.

                    Erin Bartsch, for the respondent.

 

The judgment of the Court was delivered by

 

Gascon J. —

[1]                              At the hearing, the Court allowed the appeal and restored Ms. George’s acquittals, with reasons to follow. These are those reasons.

  1. Overview

[2]                              Sexual crimes are disproportionately committed against vulnerable populations, including youth. The “reasonable steps” requirement in s. 150.1(4)  of the Criminal Code, R.S.C. 1985, c. C-46 — which requires an accused person who is five or more years older than a complainant who is 14 years of age or more but under the age of 16, to take “all reasonable steps to ascertain the age of the complainant” before sexual contact — seeks to protect young people from such crimes. It does so by placing the responsibility for preventing adult/youth sexual activity where it belongs: with adults. Parliament’s allocation of responsibility to adults is crucial for protecting young people from sexual crimes. However, through s. 676(1) (a) of the Criminal Code , Parliament limits Crown appeals against acquittals in proceedings by indictment to “question[s] of law alone.” As a result, Parliament has accepted that an acquittal at trial on an indictable offence cannot be overturned unless an error of law was made. As the trial judgment below concerned indictable offences and contained no errors of law, Ms. George’s acquittals were sustained and her appeal was allowed.

  1. Context

[3]                              Ms. George had sex with an adolescent boy, C.D. When the sexual activity took place, Ms. George was 35 years old; C.D. was approximately 14 and a half. The sexual activity was found to be apparently consensual, meaning that both partners willingly participated. In fact, C.D. instigated the sexual encounter, despite Ms. George’s genuine protestations. Still, C.D. was incapable of legally consenting because of the combination of his young age and his age disparity with Ms. George.

[4]                              The sexual activity happened after Ms. George’s son — who was 17 at the time — hosted a party at their apartment. Ms. George did not foresee sexual activity with C.D. For most of the party, she remained in her bedroom. However, after the party ended, C.D. came to the bedroom. They spoke for several hours about music, custody issues, C.D.’s relationships, and his difficulties meeting mature girlfriends.

[5]                              Ultimately, C.D. initiated sexual contact. He asked Ms. George if it “would be weird” if he kissed her. Almost simultaneously, C.D. leaned forward to kiss Ms. George. She backed away, but C.D. again moved towards her, and she let him complete a brief kiss. C.D. then “immediately” moved on top of Ms. George, removed the blankets which were covering her body, lowered his pants, and moved her underwear to the side. She asked him what he was doing. She also asked him to stop several times. But he ignored these requests and persisted. In the end, Ms. George “simply let him finish.” She described the sexual encounter as “weird, awkward, and quick.” Despite these facts, there was “no dispute that, although reluctant at first, Ms. George was a willing participant.” Further, before the Court, neither party contested Ms. George’s consent to the sexual activity.

[6]                              C.D. did not complain to any authorities about his sexual activity with Ms. George; he even proposed that they continue having sex once a week. Rather, the RCMP learned about Ms. George’s sexual activity with C.D. by happenstance. Ms. George applied to join the RCMP, and part of the screening process involved a questionnaire which asked if she had “ever engaged in sexual activity with someone who was under the age of 16”. At the time of the sexual activity, Ms. George had presumed that C.D. was around 17 because, in the several months she had known C.D., he looked that age, shaved, openly smoked cigarettes, easily bought cigarettes, and was a friend of her son (who was himself seventeen, typically socialized with older peers, and displayed less emotional maturity than C.D.). But the questionnaire prompted her to inquire as to C.D.’s exact age. When she learned that C.D. had actually been 14 and a half at the time of their sexual activity, she “felt panic.” She nevertheless submitted the questionnaire and admitted to the RCMP that she had engaged in sexual activity with a minor. Consequently, she was charged with two Criminal Code  offences: (1) sexual interference (s. 151 ); and (2) sexual assault (s. 271 ).

[7]                              For both offences, the Criminal Code  barred Ms. George from relying on C.D.’s consent as a defence, because C.D. was younger than 16 (s. 150.1(1) ) and Ms. George was more than five years his senior (s. 150.1(2.1) ). Accordingly, her only available defence — or, more accurately, her only available means of negating her criminal intent (mens rea) to have sex with a minor (H. C. Stewart, Sexual Offences in Canadian Law (loose-leaf), at p. 4-24) — was “mistake of age”, i.e. Ms. George believing that C.D. was at least 16. However, the Criminal Code  limits the availability of the mistake of age defence by requiring that “all reasonable steps” be taken to ascertain the complainant’s age:

150.1 . . .

       Mistake of age

(4) It is not a defence to a charge under section 151  or 152 subsection 160(3)  or 173(2) , or section 271 272  or273  that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

       Inadmissibilité de l’erreur

(4) Le fait que l’accusé croyait que le plaignant était âgé de seize ans au moins au moment de la perpétration de l’infraction reprochée ne constitue un moyen de défense contre une accusation portée en vertu des articles 151  ou 152 , des paragraphes 160(3) ou 173(2) ou des articles 271 272  ou 273  que si l’accusé a pris toutes les mesures raisonnables pour s’assurer de l’âge du plaignant.

[8]                              At common law, “true crimes” — like those at issue here — would have a purely subjective fault element. However, through statutory intervention, Parliament has imported an objective element into the fault analysis to enhance protections for youth (Stewart, at pp. 4-23 to 4-24). As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element) (Stewart, at p. 4-24; M. Manning, Q.C. and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 1113 (“Manning, Mewett & Sankoff”)).

[9]                              Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise (R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274, at para. 52; R. v. P. (L.T.)(1997), 113 C.C.C. (3d) 42 (B.C.C.A.), at para. 20; R. v. K. (R.A.) (1996), 106 C.C.C. (3d) 93 (N.B.C.A.), at p. 96; Stewart, at p. 4-25; A. Maleszyk, Crimes Against Children: Prosecution and Defence (loose-leaf), vol. 1, at p. 11-4). In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case (see e.g. R. v. Tannas, 2015 SKCA 61, 21 C.R. (7th) 166, at para. 27; R. v. Gashikanyi, 2015 ABCA 1, 588 A.R. 386, at para. 17). Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age (R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 17, 26, 45 and 51 (“Dragos”); L. Vandervort, “‘Too Young to Sell Me Sex?!’ Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker” (2012) 58 Crim. L.Q., 355 at pp. 360 and 375; J. Benedet, 21 C.R. (7th) 166, at p. 168 (“Benedet”); Stewart, at p. 4-26.1). Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence (R. v. Osborne(1992), 17 C.R. (4th) 350 (Nfld. C.A.) at para. 64 (“Osborne”)), and academic commentary (Manning, Mewett & Sankoff, at p. 1113).

III.        Judicial History

[10]                          At trial, Kovach J. acquitted Ms. George of both offences. He noted that the reasonable steps inquiry is contextual, and he considered various factors, including C.D.’s physical appearance, behaviour and activities, the age and appearance of C.D.’s social group, and the circumstances in which Ms. George had observed C.D. After a detailed review of these factors, Kovach J. ruled that there remained a reasonable doubt about whether the Crown proved that she had failed to take all reasonable steps to determine C.D.’s age.

[11]                          The Court of Appeal’s judgment included majority and dissenting opinions. They were divided on two points: (1) whether Kovach J. had made any legal errors, a statutory requirement for Crown appeals from acquittals for indictable offences (Criminal Code, s. 676(1) (a); R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24 (“J.M.H.”)); and (2) whether those errors were sufficiently material to the verdict, a jurisprudential requirement for such appeals (R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14).

[12]                          Richards C.J.S., writing for the majority, allowed the appeal, quashed the acquittals and ordered a new trial (2016 SKCA 155, 344 C.C.C. (3d) 544, at paras. 50-51). He held that Kovach J. had erred in law in two ways: (1) by considering evidence from during or after the sexual encounter in assessing the reasonableness of the steps taken by Ms. George before the encounter; and (2) by relying on questionable factual inferences regarding whether C.D. may have looked mature for his age at the time of the sexual activity (paras. 41-46). He also ruled that those legal errors were “central” to Kovach J.’s analysis, thus demonstrating their materiality to the verdict and justifying appellate intervention (paras. 48-49).

[13]                          In contrast, Jackson J.A., dissenting, would have dismissed the appeal and upheld the acquittals (para. 100). In her view, Kovach J. had made no legal errors (para. 89). Specifically, the errors which Richards C.J.S. alleged to be legal related instead to disagreement over factual inferences drawn by the trial judge (paras. 77-80, 85-88 and 92). In the alternative, Jackson J.A. held that the errors which Richard C.J.S. identified, if legal, were insufficiently material to justify appellate intervention because she was not satisfied that the verdict would not “necessarily” have been the same without those errors (paras. 73, 94 and 99). At multiple points in her reasons, Jackson J.A. also felt it necessary to remark that this case lacked the hallmarks of sex crimes involving children, such as grooming and deliberate exploitation of vulnerability (paras. 65-67, 96(d) to (f) and 97).

  1. Issues

[14]                          This case raises two issues: (1) whether the trial judge made any legal errors in his reasonable steps analysis; and (2) if he did, whether those errors were sufficiently material to justify appellate intervention.

  1. Analysis

[15]                          A careful review of the trial judge’s reasons reveals no legal errors. As a result, the Court of Appeal lacked jurisdiction to interfere with the trial judgment.

[16]                          I note, at the outset, that the trial judge correctly articulated the governing legal principles and cited multiple leading authorities. Of course, simply stating the correct legal test does not exhaust our inquiry and cannot insulate a trial judge from legal errors. But it helpfully orients our remaining analysis to whether the trial judge’s application of those principles reveals any legal errors.

[17]                          Whether an error is “legal” generally turns on its character, not its severity (J.M.H., at paras. 24-39). In this case, the majority confused these two concepts; it translated its strong opposition to the trial judge’s factual inferences (severity) into supposed legal errors (character). Here, that was an improper approach, and it disregarded the restraint required by Parliament’s choice to limit Crown appeals from acquittals in proceedings by indictment to “question[s] of law alone” (Criminal Code, s. 676(1) (a)).

[18]                          First of all, it goes without saying that an accused person cannot rely on the impugned sexual activity itself as a reasonable step in ascertaining the complainant’s age before the sexual activity. With this in mind, the majority claimed that the trial judge had improperly relied on “C.D.’s level of sexual experience as revealed by the sexual encounter itself” in determining whether Ms. George had taken all reasonable steps before the sexual activity (para. 47). However, this misconstrues the trial judge’s reasons when they are read as a whole and in context, as required (R. v. Morrisey (1995), 97 C.C.C. (3d) 193, at pp. 203-204). The trial judge explained:

The most compelling activity engaged in by [C.D.] suggestive of a level of maturity beyond his years, was the sexual encounter itself. Not the mere fact of sexual intercourse with a significantly older female partner, but, rather, the obvious level of comfort with which he approached the encounter. [Emphasis added.]

 

(Trial Transcript, A.R., at p. 11)

[19]                          Considered in conjunction with the trial judge’s unambiguous recognition that all reasonable steps must precede sexual contact, C.D.’s “obvious level of comfort” with how he “approached” the encounter must refer to how C.D. came to Ms. George’s bedroom uninvited and spoke with her for several hours about various topics, many reflecting maturity, and others suggestive in nature. All of this information was known to Ms. George before the sexual contact. According to the trial judge, this was one of many factors reasonably informing her perception of C.D.’s age before sexual contact. No legal error arises from this.

[20]                          Admittedly, the trial judge considered other evidence that did not precede the sexual encounter. The majority considered this to be a further legal error. But it is not. As noted, Ms. George’s reasonable steps must precede her sexual activity with C.D.; the trial judge expressly recognized this. But it does not follow that the evidence she tenders must also precede her sexual activity with C.D. Such an interpretation conflates the fact to be proven with the evidence that may be used to prove it.

[21]                          When determining the relevance of evidence in this context, both its purpose and its timing must be considered. Evidence demonstrating steps taken after the sexual activity to ascertain a complainant’s age — for example, the accused person checking the complainant’s photographic identification immediately after the sexual activity — is irrelevant to the reasonable steps inquiry. As a result, considering such evidence would amount to a legal error, as it reveals a “misapprehension of . . . legal principle” (J.M.H., at para. 29). However, evidence properly informing the credibility or reliability of any witness, even if that evidence arose after the sexual activity in question, may be considered by the trial judge. Similarly, evidence demonstrating the reasonableness of the accused person’s perception of the complainant’s age before sexual contact is relevant to adjudicating the reasonableness of the steps taken by the accused person (Duran, at paras. 51-54), even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity (see e.g. Osborne, at paras. 22(4) to (5)).

[22]                          For example, consider a photograph of an underage complainant taken a week after impugned sexual activity, in which the complainant looks as old as 21. The adult charged with assaulting the complainant could not have relied on viewing the photograph itself as one of their reasonable steps, because it was taken after the sexual activity occurred. But that is not the purpose for which the photograph would be tendered as evidence. Rather, the photograph would be tendered as evidence for the purpose of proving the complainant’s physical appearance around the time of the sexual activity, which could, depending on the circumstances, be relevant to the reasonableness of the accused person’s perception of the complainant’s age.

[23]                          The evidence arising after the sexual activity considered by the trial judge in this case, to which the majority objected (at para. 34), did not detract from and was consistent with Ms. George’s testimony as to how C.D. appeared to her and acted in her presence during the several months they knew each other before the sexual encounter. To that extent, it was admissible for the purpose of assessing her credibility at large, which included her testimony as to how the complainant appeared to her in the months preceding the sexual activity.

[24]                          While one may disagree with the weight the trial judge gave this evidence, no legal error arises from mere disagreements over factual inferences or the weight of evidence (J.M.H., at para. 28). Indeed, many of the majority’s comments reveal that its discomfort with this evidence was not because it was irrelevant (which would have illustrated a misconception of principle, a legal issue: ibid., at para. 29), but because its relevance was marginal (a factual issue). The trier of fact is best situated to assign weight to evidence. In any event, if the Crown objects to inferences about a complainant’s physical appearance at a younger age, it is permitted to tender direct evidence of that physical appearance (for example, a photograph). The majority’s view that the trial judge could not draw such an inference because Ms. George had failed to tender evidence proving that C.D.’s appearance “had not changed” between ages 14 and 17 (para. 46) suggests that the trier of fact is prohibited from drawing factual inferences. To the contrary, factual inferences are a necessary means through which triers of fact consider all of the evidence (direct and indirect) before them.

[25]                          Given the above, the Court of Appeal lacked jurisdiction to review the trial judge’s decision. On that basis, the Court allowed the appeal. That said, two final points arising from the dissent merit brief consideration.

[26]                          First, the dissenting judge felt it necessary to comment on how this case lacks the hallmarks of sex crimes against children, including grooming and exploitation of vulnerability (paras. 65-67, 96(d) to (f) and 97). But no such hallmarks are required for the offences at issue. It is a criminal offence to sexually touch a child who is 14 years of age or more but younger than 16 when you are five or more years their senior, even if you honestly believe they are older than 16, unless you have taken “all reasonable steps” to ascertain their age; nothing more is required (Benedet, at p. 167). Indeed, to suggest that exploitation is a requirement for the offence belies (1) the scheme of the Criminal Code , which already prohibits sexual exploitation (s. 153 ) and sexual activity where “consent” is procured through abuse of trust, power or authority (s. 273.1(2) (c)); and (2) Parliament’s recognition that adult/youth sexual relationships are inherently exploitative. To the extent that the dissent was suggesting that such ancillary considerations are necessary in proving all sex crimes against children, I reject that proposition. To be clear, overt indicia of exploitation may diminish the credibility of an accused person’s purported mistaken belief in the complainant’s age, or the reasonableness of the steps taken by that accused person (see e.g. Dragos, at para. 52; R. v. Mastel, 2011 SKCA 16, 84 C.R. (6th) 405, at para. 18; J. Benedet, Annotation to R. v. Mastel (2015), 84 C.R. (6th) 405, at p. 406), but they are not required for the offence itself to be made out.

[27]                          Second, the dissent stated that, to overturn an acquittal, an appellate court must be satisfied that the verdict would “not necessarily have been the same” without the trial judge’s legal errors (paras. 74 and 99, see also paras. 73 and 94). If the dissent was implying that an appellate court can overturn an acquittal where it is merely possible that the verdict would have changed, that is too low a threshold. This Court has used various phrasings to articulate the threshold of materiality required to justify appellate intervention in a Crown appeal from an acquittal. An “abstract or purely hypothetical possibility” of materiality is below the threshold (Graveline, at para. 14). An error that “would necessarily” have been material is above the threshold (ibid., at paras. 14-15; R. v. Morin, [1988] 2 S.C.R. 345, at p. 374 (“Morin”)). And an error about which there is a “reasonable degree of certainty” of its materiality is at the required threshold (Graveline, at paras. 14-15; Morin, at p. 374).

[28]                          That threshold is not met here. The allegations of errors on the trial judge’s part that have arguable merit relate to two pieces of corroborative evidence. Further, that evidence was surrounded by alternate evidence — including C.D.’s physical appearance, behaviour and activities, the age and appearance of C.D.’s social group, and the circumstances in which Ms. George had observed C.D. — all of which supported the trial judge’s view that reasonable doubt remained in respect of whether the Crown had proven that Ms. George failed to meet the reasonable steps requirement. In my view, there was no reasonable degree of certainty that the trial judge’s controversial inferences were material to his verdict. It follows that, even if these inferences had amounted to legal errors, they would not have justified appellate intervention in any event.

  1. Conclusion

[29]                          As explained in these reasons, the trial judge’s factual inferences did not amount to legal errors conferring appellate jurisdiction in this case. This is why, at the hearing, the Court allowed the appeal, and restored Ms. George’s acquittals.

 

Appeal allowed.

Solicitors for the appellant: Gerrand Rath Johnson, Regina.

Solicitor for the respondent: Attorney General of Saskatchewan, Regina.

 

Categories
Supreme Court Cases

Equustek worldwide injunction against Google

Google lost its appeal to the Supreme Court of Canada on June 28, 2017. The case is called Google Inc. v. Equustek Solutions Inc., et al. And the decision solidifies the worldwide injunction made against Google by a Canadian superior court in British Columbia, Canada.

The Supreme Court of Canada decision in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, with the majority holding in the 7-2 decision: Held (Côté and Rowe JJ. dissenting): The appeal is dismissed and the worldwide interlocutory injunction against Google is upheld.

The majority wrote that the trial judge should be given deference in determining an interlocutory injunction, and where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world, including in this case against third-party Google. The underlying proceeding related to passing off and trade secret infringement by a defendant which was conducted outside B.C. through a series of changing websites.

So, Canada’s highest court upheld an injunction ordering Google to remove certain websites ruled to be infringing intellectual property from its search engine, GLOBALLY!

Status:

Google has filed a lawsuit in California federal court against Equustek.

Google brings this action to prevent enforcement in the United States of a Canadian order that prohibits Google from publishing within the United States search result information about the contents of the internet,” states the introduction in the complaint (courtesy of Wired).

Issue in Google v Equustek Interim Injunction:

                    Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.: The issue is whether Google can be ordered, pending a trial, to globally de‑index D’s websites which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.

Problems with Interim Injunctions and Preliminary Injunctions

  • Lack of a sunset clause:
    • Since the Defendant left the jurisdiction and was noted in default, Equustek may never set the matter down for trial.
    • Google will have a never ending obligation to block the Defendant’s successive websites selling any modem products.
  • Lack of analysis of the merits in the underlying action:
    • Without a trial, no judge has taken a hard look at the facts and the causes of action.
  • The Worldwide Injunction sets a strong precedent for courts in other countries
  • The injunction results in an absurd result that is not legally sound.
    • Equustek v Google is a strange trade secrets case to limit global sales of a tech product without any patent.
    • The global reach seems absurd that the defendant can’t design or sell any modems or routers anywhere in the world.
    • Trade Secrets are not global patents.
    • The injuction should be limited to the P’s rights in the jurisdiction. See France v eBay.
    • The public has right to see what is on the web in other countries.
    • The order is like a SOPA order. The US Congress rejected SOPA due to public opinion.
    • If a Russian court prohibited Google from displaying search results about Russian hacking of a US election, should Google honor it worldwide?
    • Hollywood forum-shopping its piracy cleanup north of the border? The film and music industries intervened to ensure that Equustek got what it wanted.
    • Europe looking to impose a “right to be forgotten” worldwide?

Majority Opinion Summary

                    The decision to grant an interlocutory injunction is a discretionary one and entitled to a high degree of deference. Interlocutory injunctions are equitable remedies that seek to ensure that the subject matter of the litigation will be preserved so that effective relief will be available when the case is ultimately heard on the merits. Their character as “interlocutory” is not dependent on their duration pending trial. Ultimately, the question is whether granting the injunction is just and equitable in the circumstances of the case.

                    The test for determining whether the court should exercise its discretion to grant an interlocutory injunction against Google has been met in this case: there is a serious issue to be tried; E is suffering irreparable harm as a result of D’s ongoing sale of its competing product through the Internet; and the balance of convenience is in favour of granting the order sought.

                    Google does not dispute that there is a serious claim, or that E is suffering irreparable harm which it is inadvertently facilitating through its search engine. Nor does it suggest that it would be inconvenienced in any material way, or would incur any significant expense, in de‑indexing D’s websites. Its arguments are that the injunction is not necessary to prevent irreparable harm to E and is not effective; that as a non‑party it should be immune from the injunction; that there is no necessity for the extraterritorial reach of the order; and that there are freedom of expression concerns that should have tipped the balanceagainst granting the order.

                    Injunctive relief can be ordered against someone who is not a party to the underlying lawsuit. When non‑parties are so involved in the wrongful acts of others that they facilitate the harm, even if they themselves are not guilty of wrongdoing, they can be subject to interlocutory injunctions. It is common ground that D was unable to carry on business in a commercially viable way without its websites appearing on Google. The injunction in this case flows from the necessity of Google’s assistance to prevent the facilitation of D’s ability to defy court orders and do irreparable harm to E. Without the injunctive relief, it was clear that Google would continue to facilitate that ongoing harm.

                    Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. If the injunction were restricted to Canada alone or to google.ca, the remedy would be deprived of its intended ability to prevent irreparable harm, since purchasers outside Canada could easily continue purchasing from D’s websites, and Canadian purchasers could find D’s websites even if those websites were de‑indexed on google.ca.

                    Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible.

                    D and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. E has made efforts to locate D with limited success. D is only able to survive — at the expense of E’s survival — on Google’s search engine which directs potential customers to D’s websites. This makes Google the determinative player in allowing the harm to occur. On balance, since the world‑wide injunction is the only effective way to mitigate the harm to E pending the trial, the only way, in fact, to preserve E itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non‑existent, the interlocutory injunction should be upheld.

Dissent

                    Per Côté and Rowe JJ. (dissenting): While the court had jurisdiction to issue the injunctive order against Google, it should have refrained from doing so. Numerous factors affecting the grant of an injunction strongly favour judicial restraint in this case.

The Google Order is Effectively a Final Order

                    First, the Google Order in effect amounts to a final determination of the action because it removes any potential benefit from proceeding to trial. In its original underlying claim, E sought injunctions modifying the way D carries out its website business. E has been given more injunctive relief than it sought in its originating claim, including requiring D to cease website business altogether. Little incentive remains for E to return to court to seek a lesser injunctive remedy. This is evidenced by E’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so. The Google Order provides E with more equitable relief than it sought against D and gives E an additional remedy that is final in nature. The order against Google, while interlocutory in form, is final in effect. The test for interlocutory injunctions does not apply to an order that is effectively final. In these circumstances, an extensive review of the merits of this case was therefore required but was not carried out by the court below, contrary to caselaw. The Google Order does not meet the test for a permanent injunction. Although E’s claims were supported by a good prima facie case, it was not established that D designed and sold counterfeit versions of E’s product, or that this resulted in trademark infringement and unlawful appropriation of trade secrets.

Google is a Non‑party

                    Second, Google is a non‑party to the proceedings between E and D. E alleged that Google’s search engine was facilitating D’s ongoing breach by leading customers to D’s websites. However, the prior order that required D to cease carrying on business through any website was breached as soon as D established a website to conduct its business, regardless of how visible that website might be through Google searches. Google did not aid or abet the doing of the prohibited act.

Google Order is mandatory and requires ongoing modification and supervision

                    Third, the Google Order is mandatory and requires ongoing modification and supervision because D is launching new websites to replace de‑listed ones. Courts should avoid granting injunctions that require such cumbersome court‑supervised updating.

Google Order Has Not Been Effective

                    Furthermore, the Google Order has not been shown to be effective in making D cease operating or carrying on business through any website. Moreover, the Google Order does not assist E in modifying D’s websites, as E sought in its originating claim for injunctive relief. The most that can be said is the Google Order might reduce the harm to E. But it has not been shown that the Google Order is effective in doing so. D’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word‑of‑mouth, or other indirect means. D’s websites are open for business on the Internet whether Google searches list them or not.

Alternative Remedies Are Available

                    Finally, there are alternative remedies available to E. E sought a world‑wide Mareva injunction to freeze D’s assets in France, but the Court of Appeal for British Columbia urged E to pursue a remedy in French courts. There is no reason why E cannot do what the Court of Appeal urged it to do. E could also pursue injunctive relief against the ISP providers. In addition, E could initiate contempt proceedings in France or in any other jurisdiction with a link to the illegal websites. Therefore, the Google Order ought not to have been granted.

The Interim Injunction is a Fiction

[63]                          As for the Google Order, it provides Equustek with an additional remedy, beyond the December 2012 Order and beyond what was sought in its original claim. In our view, granting of the Google Order further erodes any remaining incentive for Equustek to proceed with the underlying action. The effects of the Google Order are final in nature. Respectfully, the pending litigation assumed by our colleague Abella J. is a fiction. The Google Order, while interlocutory in form, is final in effect. Thus, it gives Equustek more relief than it sought.

Equustek's Worldwide Injunction Against Google

Webcast of the Supreme Court of Canada hearing on 2016-12-06

 

Cases Cited

By Abella J.

Applied: RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048; consideredNorwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133; Mareva Compania Naviera SA v. International Bulkcarriers SA, [1975] 2 Lloyd’s Rep. 509; referred to: Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Seaward v. Paterson, [1897] 1 Ch. 545; York University v. Bell Canada Enterprises(2009), 311 D.L.R. (4th) 755; Cartier International AG v. British Sky Broadcasting Ltd., [2016] EWCA Civ 658, [2017] 1 All E.R. 700; Warner‑Lambert Co. v. Actavis Group PTC EHF, [2015] EWHC 485 (Pat.), 144 B.M.L.R. 194; Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2; Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., 2007 SCC 20, [2007] 1 S.C.R. 867; Mooney v. Orr(1994), 98 B.C.L.R. (2d) 318; Babanaft International Co. S.A. v. Bassatne, [1990] 1 Ch. 13; Republic of Haiti v. Duvalier, [1990] 1 Q.B. 202; Derby & Co. v. Weldon, [1990] 1 Ch. 48; Derby & Co. v. Weldon (Nos. 3 and 4), [1990] 1 Ch. 65.

By Côté and Rowe JJ. (dissenting)

                    RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Fourie v. Le Roux, [2007] UKHL 1, [2007] 1 All E.R. 1087; Guaranty Trust Co. of New York v. Hannay & Co., [1915] 2 K.B. 536; Cartier International AG v. British Sky Broadcasting Ltd., 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949; Mercedes Benz A.G. v. Leiduck, [1996] 1 A.C. 284; John Deere Ltd. v. Firdale Farms Ltd. (1987), 45 D.L.R. (4th) 641; Parkin v. Thorold (1852), 16 Beav. 59, 51 E.R. 698; Schooff v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680; McIsaac v. Healthy Body Services Inc., 2009 BCSC 1716; Plouffe v. Roy, 2007 CanLII 37693; Spiller v. Brown (1973), 43 D.L.R. (3d) 140; 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643; MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048; Seaward v. Paterson, [1897] 1 Ch. 545; Acrow (Automation) Ltd. v. Rex Chainbelt Inc., [1971] 1 W.L.R. 1676; Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133; National Commercial Bank of Jamaica Ltd. v. Olint Corp., [2009] 1 W.L.R. 1405; Redland Bricks Ltd. v. Morris, [1970] A.C. 652; Co‑operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1; Attorney General v. Observer Ltd., [1990] 1 A.C. 109.

Statutes and Regulations Cited

Digital Millennium Copyright Act, Pub. L. No. 105‑304, 112 Stat. 2680 (1998).

Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36.

Law and Equity Act, R.S.B.C. 1996, c. 253, s. 39(1).

Authors Cited

Bean, David, Andrew Burns and Isabel Parry. Injunctions, 11th ed. London: Sweet & Maxwell, 2012.

Berryman, Jeffrey. The Law of Equitable Remedies, 2nd ed. Toronto: Irwin Law, 2013.

Black, Vaughan, and Edward Babin. “Mareva Injunctions in Canada: Territorial Aspects” (1997), 28 Can. Bus. L.J. 430.

Fraser, Peter G., John W. Horn and Susan A. Griffin. The Conduct of Civil Litigation in British Columbia, 2nd ed. Markham, Ont.: LexisNexis, 2007 (loose‑leaf updated December 2016, release 24).

Pitel, Stephen G. A., and Andrew Valentine. “The Evolution of the Extra‑territorial Mareva Injunction in Canada: Three Issues” (2006), 2 J. Priv. Int’l L. 339.

Riordan, Jaani. The Liability of Internet Intermediaries. Oxford: Oxford University Press, 2016.

Sharpe, Robert J. Injunctions and Specific Performance, loose‑leaf ed. Toronto: Canada Law Book, 1992 (updated November 2016, release 25).

Spry, I. C. F. The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 9th ed. Pyrmont, N.S.W.: Lawbook, 2014.

APPEAL from a judgment of the British Columbia Court of Appeal (Frankel, Groberman and Harris JJ.A.), 2015 BCCA 265, 75 B.C.L.R. (5th) 315, 373 B.C.A.C. 240, 641 W.A.C. 240, 39 B.L.R. (5th) 175, 71 C.P.C. (7th) 215, 135 C.P.R. (4th) 173, 386 D.L.R. (4th) 224, [2015] 11 W.W.R. 45, [2015] B.C.J. No. 1193 (QL), 2015 CarswellBC 1590 (WL Can.), affirming a decision of Fenlon J., 2014 BCSC 1063, 63 B.C.L.R. (5th) 145, 28 B.L.R. (5th) 265, 374 D.L.R. (4th) 537, [2014] 10 W.W.R. 652, [2014] B.C.J. No. 1190 (QL), 2014 CarswellBC 1694 (WL Can.), granting an interlocutory injunction against Google. Appeal dismissed, Côté and Rowe JJ. dissenting.

                    William C. McDowellMarguerite F. Ethier and Scott M. J. Rollwagen, for the appellant.

                    Robbie Fleming and Michael Sobkin, for the respondents.

                    Jeffrey G. Johnston, for the intervener the Attorney General of Canada.

                    Sandra NishikawaJohn Corelli and Brent Kettles, for the intervener the Attorney General of Ontario.

                    Mathew Good, for the intervener the Canadian Civil Liberties Association.

                    Cynthia Khoo, for the intervener the OpenMedia Engagement Network.

                    Written submissions only by Iris Fischer and Helen Richards, for the interveners the Reporters Committee for Freedom of the Press, the American Society of News Editors, the Association of Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., the First Amendment Coalition, First Look Media Works, Inc., the New England First Amendment Coalition, the News Media Alliance (formerly known as the Newspaper Association of America), AOL Inc., the California Newspaper Publishers Association, The Associated Press, The Investigative Reporting Workshop at American University, the Online News Association and the Society of Professional Journalists.

                    Written submissions only by Paul Schabas and Kaley Pulfer, for the interveners Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software Freedom Law Centre and the Center for Technology and Society.

                    Written submissions only by David T. S. Fraser and Jane O’Neill, for the intervener the Wikimedia Foundation.

                    Justin Safayeni and Carlo Di Carlo, for the intervener the British Columbia Civil Liberties Association.

                    David Wotherspoon and Daniel Byma, for the intervener the Electronic Frontier Foundation.

                    Dan Glover and Miranda Lam, for the interveners the International Federation of the Phonographic Industry, Music Canada, the Canadian Publishers’ Council, the Association of Canadian Publishers, the International Confederation of Societies of Authors and Composers, the International Confederation of Music Publishers and the Worldwide Independent Network.

                    Gavin MacKenzie and Brooke MacKenzie, for the intervener the International Federation of Film Producers Associations.

 

The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. was delivered by

 

Abella J. —

[1]                              The issue in this appeal is whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company. The answer turns on classic interlocutory injunction jurisprudence: is there a serious issue to be tried; would irreparable harm result if the injunction were not granted; and does the balance of convenience favour granting or refusing the injunction. Ultimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case.

Background

[2]                              Equustek Solutions Inc. is a small technology company in British Columbia. It manufactures networking devices that allow complex industrial equipment made by one manufacturer to communicate with complex industrial equipment made by another manufacturer.

[3]                              The underlying action between Equustek and the Datalink defendants (Morgan Jack, Datalink Technology Gateways Inc., and Datalink Technologies Gateways LLC – “Datalink”) was launched by Equustek on April 12, 2011. It claimed that Datalink, while acting as a distributor of Equustek’s products, began to re-label one of the products and pass it off as its own. Datalink also acquired confidential information and trade secrets belonging to Equustek, using them to design and manufacture a competing product, the GW1000. Any orders for Equustek’s product were filled with the GW1000. When Equustek discovered this in 2011, it terminated the distribution agreement it had with Datalink and demanded that Datalink delete all references to Equustek’s products and trademarks on its websites.

[4]                              The Datalink defendants filed statements of defence disputing Equustek’s claims.

[5]                              On September 23, 2011, Leask J. granted an injunction ordering Datalink to return to Equustek any source codes, board schematics, and any other documentation it may have had in its possession that belonged to Equustek. The court also prohibited Datalink from referring to Equustek or any of Equustek’s products on its websites. It ordered Datalink to post a statement on its websites informing customers that Datalink was no longer a distributor of Equustek products and directing customers interested in Equustek’s products to Equustek’s website. In addition, Datalink was ordered to give Equustek a list of customers who had ordered an Equustek product from Datalink.

[6]                              On March 21, 2012, Fenlon J. found that Datalink had not properly complied with this order and directed it to produce a new customer list and make certain changes to the notices on their websites.

[7]                              Datalink abandoned the proceedings and left the jurisdiction without producing any documents or complying with any of the orders. Some of Datalink’s statements of defence were subsequently struck.

[8]                              On July 26, 2012, Punnett J. granted a Mareva injunction freezing Datalink’s worldwide assets, including its entire product inventory. He found that Datalink had incorporated “a myriad of shell corporations in different jurisdictions”, continued to sell the impugned product, reduced prices to attract more customers, and was offering additional services that Equustek claimed disclosed more of its trade secrets. He concluded that Equustek would suffer irreparable harm if the injunction were not granted, and that, on the balance of convenience and due to a real risk of the dissipation of assets, it was just and equitable to grant the injunction against Datalink.

[9]                              On August 3, 2012, Fenlon J. granted another interlocutory injunction prohibiting Datalink from dealing with broader classes of intellectual property, including “any use of whole categories of documents and information that lie at the heart of any business of a kind engaged in by both parties”. She noted that Equustek’s “earnings ha[d] fallen drastically since [Datalink] began [its] impugned activities” and concluded that “the effect of permitting [Datalink] to carry on [its] business [would] also cause irreparable harm to [Equustek]”.

[10]                          On September 26, 2012, Equustek brought an application to have Datalink and its principal, Morgan Jack, found in contempt. No one appeared on behalf of Datalink. Groves J. issued a warrant for Morgan Jack’s arrest. It remains outstanding.

[11]                          Despite the court orders prohibiting the sale of inventory and the use of Equustek’s intellectual property, Datalink continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world.

[12]                          Not knowing where Datalink or its suppliers were, and finding itself unable to have the websites removed by the websites’ hosting companies, Equustek approached Google in September 2012 and requested that it de-index the Datalink websites. Google refused. Equustek then brought court proceedings seeking an order requiring Google to do so.

[13]                          When it was served with the application materials, Google asked Equustek to obtain a court order prohibiting Datalink from carrying on business on the Internet. Google told Equustek it would comply with such an order by removing specific webpages. Pursuant to its internal policy, Google only voluntarily de-indexes individual webpages, not entire websites. Equustek agreed to try this approach.

[14]                          On December 13, 2012, Equustek appeared in court with Google. An injunction was issued by Tindale J. ordering Datalink to “cease operating or carrying on business through any website”. Between December 2012 and January 2013, Google advised Equustek that it had de-indexed 345 specific webpages associated with Datalink. It did not, however, de-index all of the Datalink websites.

[15]                          Equustek soon discovered that de-indexing webpages but not entire websites was ineffective since Datalink simply moved the objectionable content to new pages within its websites, circumventing the court orders.

[16]                          Google had limited the de-indexing to those searches that were conducted on google.ca. Google’s search engine operates through dedicated websites all over the world. The Internet search services are free, but Google earns money by selling advertising space on the webpages that display search results. Internet users with Canadian Internet Protocol addresses are directed to “google.ca” when performing online searches. But users can also access different Google websites directed at other countries by using the specific Uniform Resource Locator, or URL, for those sites. That means that someone in Vancouver, for example, can access the Google search engine as though he or she were in another country simply by typing in that country’s Google URL. Potential Canadian customers could, as a result, find Datalink’s websites even if they were blocked on google.ca. Given that the majority of the sales of Datalink’s GW1000 were to purchasers outside of Canada, Google’s de-indexing did not have the necessary protective effect.

[17]                          Equustek therefore sought an interlocutory injunction to enjoin Google from displaying any part of the Datalink websites on any of its search results worldwide. Fenlon J. granted the order (374 D.L.R. (4th) 537 (B.C.S.C.)). The operative part states:

Within 14 days of the date of this order, Google Inc. is to cease indexing or referencing in search results on its internet search engines the [Datalink] websites …, including all of the subpages and subdirectories of the listed websites, until the conclusion of the trial of this action or further order of this court. [Emphasis added]

[18]                          Fenlon J. noted that Google controls between 70-75 percent of the global searches on the Internet and that Datalink’s ability to sell its counterfeit product is, in large part, contingent on customers being able to locate its websites through the use of Google’s search engine. Only by preventing potential customers from accessing the Datalink websites, could Equustek be protected. Otherwise, Datalink would be able to continue selling its product online and the damages Equustek would suffer would not be recoverable at the end of the lawsuit.

[19]                          Fenlon J. concluded that this irreparable harm was being facilitated through Google’s search engine; that Equustek had no alternative but to require Google to de-index the websites; that Google would not be inconvenienced; and that, for the order to be effective, the Datalink websites had to be prevented from being displayed on all of Google’s search results, not just google.ca. As she said:

On the record before me it appears that to be effective, even within Canada, Google must block search results on all of its websites. Furthermore, [Datalink’s] sales originate primarily in other countries, so the Court’s process cannot be protected unless the injunction ensures that searchers from any jurisdiction do not find [Datalink’s] websites.[1]

[20]                          The Court of Appeal of British Columbia dismissed Google’s appeal (386 D.L.R. (4th) 224). Groberman J.A. accepted Fenlon J.’s conclusion that she had in personam jurisdiction over Google and could therefore make an order with extraterritorial effect. He also agreed that courts of inherent jurisdiction could grant equitable relief against non-parties. Since ordering an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court’s several orders, and since there were no identifiable countervailing comity or freedom of expression concerns that would prevent such an order from being granted, he upheld the interlocutory injunction.

[21]                          For the following reasons, I agree with Fenlon J. and Groberman J.A. that the test for granting an interlocutory injunction against Google has been met in this case.

Analysis

[22]                          The decision to grant an interlocutory injunction is a discretionary one and entitled to a high degree of deference (Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 155-56). In this case, I see no reason to interfere.

[23]                          Injunctions are equitable remedies. “The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited” (Ian Spry, The Principles of Equitable Remedies (9th ed. 2014), at p. 333).  Robert Sharpe notes that “[t]he injunction is a flexible and drastic remedy. Injunctions are not restricted to any area of substantive law and are readily enforceable through the court’s contempt power” (Injunctions and Specific Performance (loose-leaf ed.), at para. 2.10).

[24]                          An interlocutory injunction is normally enforceable until trial or some other determination of the action. Interlocutory injunctions seek to ensure that the subject matter of the litigation will be “preserved” so that effective relief will be available when the case is ultimately heard on the merits (Jeffrey Berryman, The Law of Equitable Remedies (2nd ed. 2013), at pp. 24-25). Their character as “interlocutory” is not dependent on their duration pending trial.

[25]                          RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, sets out a three-part test for determining whether a court should exercise its discretion to grant an interlocutory injunction: is there a serious issue to be tried; would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and is the balance of convenience in favour of granting the interlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific.

[26]                          Google does not dispute that there is a serious claim. Nor does it dispute that Equustek is suffering irreparable harm as a result of Datalink’s ongoing sale of the GW1000 through the Internet. And it acknowledges, as Fenlon J. found, that it inadvertently facilitates the harm through its search engine which leads purchasers directly to the Datalink websites.

[27]                          Google argues, however, that the injunction issued against it is not necessary to prevent that irreparable harm, and that it is not effective in so doing.  Moreover, it argues that as a non-party, it should be immune from the injunction. As for the balance of convenience, it challenges the propriety and necessity of the extraterritorial reach of such an order, and raises freedom of expression concerns that it says should have tipped the balance against granting the order. These arguments go both to whether the Supreme Court of British Columbia had jurisdiction to grant the injunction and whether, if it did, it was just and equitable to do so in this case.

[28]                          Google’s first argument is, in essence, that non-parties cannot be the subject of an interlocutory injunction. With respect, this is contrary to the jurisprudence. Not only can injunctive relief be ordered against someone who is not a party to the underlying lawsuit, the contours of the test are not changed. As this Court said in MacMillan Bloedel Ltd. v. Simpson [1996] 2 S.C.R. 1048, injunctions may be issued ‘“in all cases in which it appears to the court to be just or convenient that the order should be made . . . on terms and conditions the court thinks just”’ (para. 15, citing s. 36 of the Law and Equity Act, R.S.B.C. 1979, c. 224). MacMillan Bloedel involved a logging company seeking to restrain protesters from blocking roads. The company obtained an interlocutory injunction prohibiting not only specifically named individuals, but also “John Doe, Jane Doe and Persons Unknown” and “all persons having notice of th[e] order” from engaging in conduct which interfered with its operations at specific locations. In upholding the injunction, McLachlin J. noted that

[i]t may be confidently asserted . . . that both English and Canadian authorities support the view that non-parties are bound by injunctions: if non-parties violate injunctions, they are subject to conviction and punishment for contempt of court. The courts have jurisdiction to grant interim injunctions which all people, on pain of contempt, must obey. [Emphasis added; para. 31]

 

See also Berryman, at pp. 57-60; Sharpe, at paras. 6.260 to 6.265.

[29]                          In other words, where a non-party violates a court order, there is a principled basis for treating the non-party as if it had been bound by the order. The non-party’s obligation arises “not because [it] is bound by the injunction by being a party to the cause, but because [it] is conducting [itself] so as to obstruct the course of justice” (MacMillan Bloedel, at para. 27, quoting Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.), at p. 555).

[30]                          The pragmatism and necessity of such an approach was concisely explained by Fenlon J. in the case before us when she offered the following example:

. . . a non-party corporation that warehouses and ships goods for a defendant manufacturing company might be ordered on an interim injunction to freeze the defendants’ goods and refrain from shipping them. That injunction could affect orders received from customers around the world. Could it sensibly be argued that the Court could not grant the injunction because it would have effects worldwide? The impact of an injunction on strangers to the suit or the order itself is a valid consideration in deciding whether to exercise the Court’s jurisdiction to grant an injunction. It does not, however, affect the Court’s authority to make such an order.[2]

[31]                          Norwich orders are analogous and can also be used to compel non-parties to disclose information or documents in their possession required by a claimant (Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), at p. 175). Norwich orders have increasingly been used in the online context by plaintiffs who allege that they are being anonymously defamed or defrauded and seek orders against Internet service providers to disclose the identity of the perpetrator (York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.)).  Norwich disclosure may be ordered against non-parties who are not themselves guilty of wrongdoing, but who are so involved in the wrongful acts of others that they facilitate the harm. In Norwich, this was characterized as a duty to assist the person wronged (p. 175; Cartier International AG v. British Sky Broadcasting Ltd., [2017], 1 All E.R. 700 (C.A.), at para. 53). Norwich supplies a principled rationale for granting injunctions against non-parties who facilitate wrongdoing (see Cartier, at paras. 51-55; and Warner-Lambert Co. v. Actavis Group PTC EHF, 144 B.M.L.R. 194 (Ch.)).

[32]                          This approach was applied in Cartier, where the Court of Appeal of England and Wales held that injunctive relief could be awarded against five non-party Internet service providers who had not engaged in, and were not accused of any wrongful act. The Internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of the plaintiff’s trademarks. (See also Jaani Riordan, The Liability of Internet Intermediaries (2016), at pp. 412 and 498-99.)

[33]                          The same logic underlies Mareva injunctions, which can also be issued against non-parties. Mareva injunctions are used to freeze assets in order to prevent their dissipation pending the conclusion of a trial or action (Mareva Compania Naviera SA v. International Bulkcarriers SA, [1975] 2 Lloyd’s Rep. 509 (C.A.); Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2). A Mareva injunction that requires a defendant not to dissipate his or her assets sometimes requires the assistance of a non-party, which in turn can result in an injunction against the non-party if it is just and equitable to do so (Stephen Pitel and Andrew Valentine, “The Evolution of the Extra-territorial Mareva Injunction in Canada: Three Issues” (2006), 2 J. Priv. Int’l L. 339, at p. 370; Vaughan Black and Edward Babin, “Mareva Injunctions in Canada: Territorial Aspects” (1997), 28 Can. Bus. L.J. 430, at pp. 452-53; Berryman, at pp. 128-31). Banks and other financial institutions have, as a result, been bound by Mareva injunctions even when they are not a party to an underlying action.

[34]                          To preserve Equustek’s rights pending the outcome of the litigation, Tindale J.’s order of December 13, 2012 required Datalink to cease carrying on business through the Internet. Google had requested and participated in Equustek’s obtaining this order, and offered to comply with it voluntarily. It is common ground that Datalink was unable to carry on business in a commercially viable way unless its websites were in Google’s search results. In the absence of de-indexing these websites, as Fenlon J. specifically found, Google was facilitating Datalink’s breach of Tindale J.’s order by enabling it to continue carrying on business through the Internet. By the time Fenlon J. granted the injunction against Google, Google was aware that in not de-indexing Datalink’s websites, it was facilitating Datalink’s ongoing breach of Tindale J.’s order, the purpose of which was to prevent irreparable harm to Equustek.

[35]                          Much like a Norwich order or a Mareva injunction against a non-party, the interlocutory injunction in this case flows from the necessity of Google’s assistance in order to prevent the facilitation of Datalink’s ability to defy court orders and do irreparable harm to Equustek. Without the injunctive relief, it was clear that Google would continue to facilitate that ongoing harm.

[36]                          Google’s next argument is the impropriety of issuing an interlocutory injunction with extraterritorial effect. But this too contradicts the existing jurisprudence.

[37]                          The British Columbia courts in these proceedings concluded that because Google carried on business in the province through its advertising and search operations, this was sufficient to establish the existence of in personam and territorial jurisdiction. Google does not challenge those findings. It challenges instead the global reach of the resulting order. Google suggests that if any injunction is to be granted, it should be limited to Canada (or google.ca) alone.

[38]                          When a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world. (See Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., [2007] 1 S.C.R. 867, at para. 6; Berryman, at p. 20; Pitel and Valentine, at p. 389; Sharpe, at para. 1.1190; Spry, at p. 37.) Marevainjunctions have been granted with worldwide effect when it was found to be necessary to ensure their effectiveness. (See Mooney v. Orr (1994), 98 B.C.L.R. (2d) 318 (S.C.); Berryman, at pp. 20 and 136; Babanaft International Co. S.A. v. Bassatne, [1990] 1 Ch. 13 (C.A.); Republic of Haiti v. Duvalier, [1990] 1 Q.B. 202 (C.A.); Derby & Co. v. Weldon, [1990] 1 Ch. 48 (C.A.); and Derby & Co. v. Weldon (Nos. 3 and 4) [1990] 1 Ch. 65 (C.A.); Sharpe, at paras. 1.1190 to 1.1220.)

[39]                          Groberman J.A. pointed to the international support for this approach:

I note that the courts of many other jurisdictions have found it necessary, in the context of orders against Internet abuses, to pronounce orders that have international effects. Several such cases are cited in the arguments of [International Federation of Film Producers Associations and International Federation of the Phonographic Industry], including APC v. Auchan Telecom, 11/60013, Judgment (28 November 2013) (Tribunal de Grande Instance de Paris); McKeogh v. Doe (Irish High Court, case no. 20121254P); Mosley v. Google, 11/07970, Judgment (6 November 2013) (Tribunal de Grande Instance de Paris); Max Mosley v. Google (see “Case Law, Hamburg District Court: Max Mosley v. Google Inc. online: Inform’s Blog https://inforrm.wordpress.com/ 2014/02/05/case-law-hamburg-district-court-max-mosley-v-google-inc-google-go-down-again-this-time-in-hamburg-dominic-crossley/) and ECJ Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González, C-131/12 [2014], CURIA.[3]

[40]                          Fenlon J. explained why Equustek’s request that the order have worldwide effect was necessary as follows:

The majority of GW1000 sales occur outside Canada. Thus, quite apart from the practical problem of endless website iterations, the option Google proposes is not equivalent to the order now sought which would compel Google to remove the [Datalink] websites from all search results generated by any of Google’s websites worldwide. I therefore conclude that [Equustek does] not have an out-of-court remedy available to [it].[4]

 

. . .

 

. . . to be effective, even within Canada, Google must block search results on all of its websites.[5]

As a result, to ensure that Google did not facilitate Datalink’s breach of court orders whose purposes were to prevent irreparable harm to Equustek, she concluded that the injunction had to have worldwide effect.

[41]                          I agree. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.

[42]                          The interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the Internet, a business which would be commercially impossible without Google’s facilitation. The order targets Datalink’s websites — the list of which has been updated as Datalink has sought to thwart the injunction — and prevents them from being displayed where they do the most harm: on Google’s global search results.

[43]                          Nor does the injunction’s worldwide effect tip the balance of convenience in Google’s favour. The order does not require that Google take any steps around the world, it requires it to take steps only where its search engine is controlled. This is something Google has acknowledged it can do — and does — with relative ease. There is therefore no harm to Google which can be placed on its “inconvenience” scale arising from the global reach of the order.

[44]                          Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction is, with respect, theoretical. As Fenlon J. noted, “Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong”.[6]

[45]                          And while it is always important to pay respectful attention to freedom of expression concerns, particularly when dealing with the core values of another country, I do not see freedom of expression issues being engaged in any way that tips the balance of convenience towards Google in this case. As Groberman J.A. concluded:

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

 

. . . the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.[7]

[46]                          If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application.

[47]                          In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google.

[48]                          This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.

[49]                          And I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites. As for the balance of convenience, the only obligation the interlocutory injunction creates is for Google to de-index the Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily”.[8] Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.

[50]                          Google did not suggest that it would be inconvenienced in any material way, or would incur any significant expense, in de-indexing the Datalink websites. It acknowledges, fairly, that it can, and often does, exactly what is being asked of it in this case, that is, alter search results. It does so to avoid generating links to child pornography and websites containing “hate speech”. It also complies with notices it receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998) to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders.

[51]                          As for the argument that this will turn into a permanent injunction, the length of an interlocutory injunction does not, by itself, convert its character from a temporary to a permanent one. As previously noted, the order requires that the injunction be in place “until the conclusion of the trial of this action or further order of this court”. There is no reason not to take this order at face value. Where an interlocutory injunction has been in place for an inordinate amount of time, it is always open to a party to apply to have it varied or vacated. Google has brought no such application.

[52]                          Datalink and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. Equustek has made efforts to locate Datalink with limited success. Datalink is only able to survive — at the expense of Equustek’s survival — on Google’s search engine which directs potential customers to its websites. In other words, Google is how Datalink has been able to continue harming Equustek in defiance of several court orders.

[53]                          This does not make Google liable for this harm. It does, however, make Google the determinative player in allowing the harm to occur. On balance, therefore, since the interlocutory injunction is the only effective way to mitigate the harm to Equustek pending the resolution of the underlying litigation, the only way, in fact, to preserve Equustek itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non-existent, the interlocutory injunction should be upheld.

[54]                          I would dismiss the appeal with costs in this Court and in the Court of Appeal for British Columbia.

 

The following are the reasons delivered by

 

Côté and Rowe JJ. —

[55]                          Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc. (“Equustek”) seek a novel form of equitable relief ― an effectively permanent injunction, against an innocent third party, that requires court supervision, has not been shown to be effective, and for which alternative remedies are available. Our response calls for judicial restraint. While the court had jurisdiction to issue the June 13, 2014 order against Google Inc. (“Google Order”) (2014 BCSC 1063, 374 D.L.R. (4th) 537, per Fenlon J.), in our view it should have refrained from doing so. The authority to grant equitable remedies has always been constrained by doctrine and practice. In our view, the Google Order slipped too easily from these constraints.

[56]                          As we will explain, the Google Order is effectively final redress against a non-party that has neither acted unlawfully, nor aided and abetted illegal action. The test for interlocutory injunctions established in RJR  MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, does not apply to an order that is effectively final, and the test for a permanent injunction has not been satisfied. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and there are alternative remedies available to Equustek.

  1. Judicial Restraint

[57]                          The power of a court to grant injunctive relief is derived from that of the Chancery courts of England (Fourie v. Le Roux, [2007] UKHL 1, [2007] 1 All E.R. 1087, at para. 30), and has been confirmed in British Columbia by the Law and Equity Act, R.S.B.C. 1996, c. 253, s. 39(1):

39 (1) An injunction or an order in the nature of mandamus may be granted or a receiver or receiver manager appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made.

[58]                          In Fourie, Lord Scott explained that “provided the court has in personam jurisdiction over the person against whom an injunction, whether interlocutory or final, is sought, the court has jurisdiction, in the strict sense, to grant it” (para. 30). However, simply because a court has the jurisdiction to grant an injunction does not mean that it should. A court “will not according to its settled practice do so except in a certain way and under certain circumstances” (Lord Scott, at para. 25, quoting from Guaranty Trust Co. of New York v. Hannay & Co., [1915] 2 K.B. 536, at p. 563; see also Cartier International AG v. British Sky Broadcasting Ltd., 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949, at paras. 98-100). Professor Spry comes to similar conclusions (I. C. F. Spry, The Principles of Equitable Remedies (9th ed. 2014), at p. 333):

The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. [Footnote omitted.]

[59]                          The importance of appropriately modifying judicial restraint to meet the needs of justice was summarized by Lord Nicholls in Mercedes Benz A.G. v. Leiduck, [1996] 1 A.C. 284 (P.C.), at p. 308: “As circumstances in the world change, so must the situations in which the courts may properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice.”

[60]                          Changes to “settled practice” must not overshoot the mark of avoiding injustice. In our view, granting the Google Order requires changes to settled practice that are not warranted in this case: neither the test for an interlocutory nor a permanent injunction has been met; court supervision is required; the order has not been shown to be effective; and alternative remedies are available.

  1. Factors Suggesting Restraint in This Case

A.           The Effects of the Google Order Are Final

[61]                          In RJR  MacDonald, this Court set out the test for interlocutory injunctions ― a serious question to be tried, irreparable harm, and the balance of convenience ― but also described an exception (at pp. 338-39):

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.

 

. . .

 

The circumstances in which this exception will apply are rare. When it does, a more extensive review of the merits of the case must be undertaken. Then when the second and third stages of the test are considered and applied the anticipated result on the merits should be borne in mind. [Emphasis added.]

[62]                          In our view, the Google Order “in effect amount[s] to a final determination of the action” because it “remove[s] any potential benefit from proceeding to trial”. In order to understand this conclusion, it is useful to review Equustek’s underlying claim. Equustek sought, in its Further Amended Notice of Civil Claim against Datalink, damages, declarations, and:

A temporary and permanent injunction restraining the Defendants from:

 

  1. using the Plaintiffs’ trademarks and free-riding on the goodwill of any Equustek products on any website;

 

  1. making statements disparaging or in any way referring to the Equustek products;

 

  1. distributing the offending manuals and displaying images of the Plaintiff’s products on any website; and

 

  1. selling the GW1000 line of products which were created by the theft of the Plaintiff’s trade secrets;

 

and obliging them to:

 

  1. immediately disclose all hidden websites;

 

  1. display a page on all websites correcting [their] misrepresentations about the source and continuing availability of the Equustek products and directing customers to Equustek.

In short, Equustek sought injunctions modifying the way in which Datalink carries out its website business, along with damages and declarations. On June 20, 2012, Datalink’s response was struck and Equustek was given leave to apply for default judgment. It has not done so. On December 13, 2012, Justice Tindale ordered that

[t]he Defendants Morgan Jack, Datalink Technologies Gateways Inc. and Datalink Technologies Gateways LLC (the “Datalink Defendants”) cease operating or carrying on business through any website, including those contained in Schedule “A” and all associated pages, subpages and subdirectories, and that these Defendants immediately take down all such websites, until further order of this court. [“December 2012 Order”]

The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether. In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so.

[63]                          As for the Google Order, it provides Equustek with an additional remedy, beyond the December 2012 Order and beyond what was sought in its original claim. In our view, granting of the Google Order further erodes any remaining incentive for Equustek to proceed with the underlying action. The effects of the Google Order are final in nature. Respectfully, the pending litigation assumed by our colleague Abella J. is a fiction. The Google Order, while interlocutory in form, is final in effect. Thus, it gives Equustek more relief than it sought.

[64]                          Procedurally, Equustek requested an interlocutory order in the course of its litigation with Datalink. While Equustek’s action against Datalink could technically endure indefinitely (G.P. Fraser, J.W. Horn and S.A. Griffin, The Conduct of Civil Litigation in British Columbia (2nd ed. (loose-leaf)), at § 14.1) ― and thus the interlocutory status of the injunction could technically endure indefinitely ― it does not follow that the Google Order should be considered interlocutory. Courts of equity look to substance over form, because “a dogged devotion to form has often resulted in injustice” (John Deere Ltd. v. Firdale Farms Ltd. (1987), 45 D.L.R. (4th) 641 (Man. C.A.), at p. 645). In Parkin v. Thorold (1852), 16 Beav. 59, 51 E.R. 698, at p. 701, Lord Romilly explained it thus:

. . . Courts of Equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and, if [they do] find that by insisting on the form, the substance will be defeated, [they hold] it to be inequitable to allow a person to insist on such form, and thereby defeat the substance.

In our view, the substance of the Google Order amounts to a final remedy. As such, it provides Equustek with more equitable relief than it sought against Datalink, and amounts to final resolution via Google. It is, in effect, a permanent injunction.

[65]                          Following RJR ― MacDonald (at pp. 338-39), an extensive review of the merits is therefore required at the first stage of the analysis (Schooff v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680, at paras. 26-27). Yet this was not done. When Justice Fenlon considered Equustek’s application for an interim injunction enjoining Google to cease indexing or referencing Datalink’s websites, she did not conduct an extensive review of the merits. She did however note that Equustek had raised an arguable case, and that Datalink was presumed to have admitted the allegations when its defenses were struck (para. 151). The rule is not immutable that if a statement of defense is struck, the defendant is deemed to have admitted the allegations contained in the statement of claim. While the facts relating to Datalink’s liability are deemed to be admitted, the court can still exercise its discretion in assessing Equustek’s claims (McIsaac v. Healthy Body Services Inc., 2009 BCSC 1716, at paras. 42 and 44 (CanLII); Plouffe v. Roy, 2007 CanLII 37693 (Ont. S.C.J.), at para. 53; Spiller v. Brown (1973), 43 D.L.R. (3d) 140 (Alta. S.C. (App. Div.)), at p. 143). Equustek has avoided such an assessment. Thus, an extensive review of the merits was not carried out.

[66]                          The Google Order also does not meet the test for a permanent injunction.  To obtain a permanent injunction, a party is required to establish: (1) its legal rights; (2) that damages are an inadequate remedy; and (3) that there is no impediment to the court’s discretion to grant an injunction (1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 74-80; Spry, at pp. 395 and 407-8). Equustek has shown the inadequacy of damages (damages are ascertainable but unlikely to be recovered, and the wrong is continuing). However, in our view, it is unclear whether the first element of the test has been met. Equustek’s claims were supported by a good prima facie case, but it was not established that Datalink designed and sold counterfeit versions of its product, or that this resulted in trademark infringement and unlawful appropriation of trade secrets.

[67]                          In any case, the discretionary factors affecting the grant of an injunction strongly favour judicial restraint. As we will outline below, the Google Order enjoins a non-party, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies.

B.            Google Is a Non-Party

[68]                          A court order does not “technically” bind non-parties, but “anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court” (MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, at paras. 23 and 27). In MacMillan Bloedel, the injunction prohibiting named individuals from blocking a logging road also caused non-parties to face contempt proceedings for doing the act prohibited by the injunction.

[69]                          The instant case is not one where a non-party with knowledge of a court order deliberately disobeyed it and thereby deprecated the court’s authority. Google did not carry out the act prohibited by the December 2012 Order. The act prohibited by the December 2012 Order is Datalink “carrying on business through any website”. That act occurs whenever Datalink launches websites to carry out business ― not when other parties, such as Google, make it known that such websites exist.

[70]                          There is no doubt that non-parties also risk contempt proceedings by aiding and abetting the doing of a prohibited act (Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.); D. Bean, A. Burns and I. Parry, Injunctions (11th ed. 2012), at para. 9-08). Lord Denning said in Acrow (Automation) Ltd. v. Rex Chainbelt Inc., [1971] 1 W.L.R. 1676 (C.A.), at p. 1682:

It has long been held that the court has jurisdiction to commit for contempt a person, not a party to the action, who, knowing of an injunction, aids and abets the defendant in breaking it. The reason is that by aiding and abetting the defendant, he is obstructing the course of justice.

[71]                          In our view, Google did not aid or abet the doing of the prohibited act. Equustek alleged that Google’s search engine was facilitating Datalink’s ongoing breach by leading customers to Datalink websites (Fenlon J.’s reasons, at para. 10). However, the December 2012 Order was to cease carrying on business through any website. That Order was breached as soon as Datalink established a website to conduct its business, regardless of how visible that website might be through Google searches. If Equustek’s argument were accepted, the scope of “aids and abets” would, in our view, become overbroad. It might include the companies supplying Datalink with the material to produce the derivative products, the companies delivering the products, or as Google argued in its factum, it might also include the local power company that delivers power to Datalink’s physical address. Critically, Datalink breached the December 2012 Order simply by launching websites to carry out business, regardless of whether Google searches ever reveal the websites.

[72]                          We agree with our colleague Justice Abella that Mareva injunctions and Norwich orders can operate against non-parties. However, we respectfully disagree that the Google Order is similar in nature to those remedies. Mareva injunctions are granted to freeze assets until the completion of a trial ― they do not enforce a plaintiff’s substantive rights (Mercedes Benz, at p. 302). In contrast, the Google Order enforces Equustek’s asserted intellectual property rights by seeking to minimize harm to those rights. It does not freeze Datalink’s assets (and, in fact, may erode those assets).

[73]                          Norwich orders are made to compel information from third parties. In Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), at p. 175, Lord Reid identified

a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.

Lord Reid found that “without certain action on [Customs’] part the infringements could never have been committed” (at 174). In spite of this finding, the court did not require Customs to take specific action to prevent importers from infringing the patent of Norwich Pharmacal; rather the court issued a limited order compelling Customs to disclose the names of importers. In Cartier, the court analogized from Norwich to support an injunction requiring Internet service providers (“ISPs”) to block access to trademark-infringing websites because “it is via the ISPs’ services” that customers view and purchase the infringing material (para. 155). That injunction did not extend to parties merely assisting in finding the websites.

[74]                          In the case at bar, we are of the view that Google does not play a role in Datalink’s breach of the December 2012 Order. Whether or not the December 2012 Order is violated does not hinge on the degree of success of the prohibited website business. Rather, the December 2012 Order is violated merely by Datalink conducting business through a website, regardless of the visibility of that website or the number of customers that visit the website. Thus Google does not play a role analogous to Customs in Norwich nor the ISPs in Cartier. And unlike the order in Norwich, the Google Order compels positive action aimed at the illegal activity rather than simply requiring the provision of information to the court.

C.            The Google Order Is Mandatory

[75]                          While the distinction between mandatory and prohibitive injunctions has been questioned (see National Commercial Bank of Jamaica Ltd. v. Olint Corp., [2009] 1 W.L.R. 1405 (P.C.), at para. 20), courts have rightly, in our view, proceeded cautiously where an injunction requires the defendant to incur additional expenses to take positive steps (Redland Bricks Ltd. v. Morris, [1970] A.C. 652 (H.L.), at pp. 665‑66; J. Berryman, The Law of Equitable Remedies (2nd ed. 2013), at pp. 199-200). Also relevant to the decision of whether to grant a mandatory injunction is whether it might require continued supervision by the courts, especially where the terms of the order cannot be precisely drawn and where it may result in wasteful litigation over compliance (Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1 (H.L.).

[76]                          The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace de-listed ones. In fact, the Google Order has been amended at least seven times to capture Datalink’s new sites (orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015; September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts should avoid granting injunctions that require such cumbersome court-supervised updating.

D.           The Google Order Has Not Been Shown To Be Effective

[77]                          A court may decline to grant an injunction on the basis that it would be futile or ineffective in achieving the purpose for which it is sought (Spry, at pp. 419‑20; Berryman, at p. 113). For example, in Attorney General v. Observer Ltd., [1990] 1 A.C. 109 (H.L.), the Spycatcher memoirs of an M.I.5 agent were already readily available, thus making a perpetual injunction against publication by the defendant newspapers ineffective.

[78]                          In our view, the Google Order is not effective in enforcing the December 2012 Order. It is recalled that the December 2012 Order requires that Datalink “cease operating or carrying on business through any website” — it says nothing about the visibility or success of the website business. The December 2012 Order is violated as soon as Datalink launches websites to carry on business, regardless of whether those websites appear in a Google search. Moreover, the Google Order does not assist Equustek in modifying the Datalink websites, as Equustek sought in its originating claim for injunctive relief.

[79]                          The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order.

[80]                          Moreover, the quest for elusive effectiveness led to the Google Order having worldwide effect. This effect should be taken into consideration as a factor in exercising discretion. Spry explains that territorial limitations to equitable jurisdiction are “to some extent determined by reference to questions of effectiveness and of comity” (p. 37). While the worldwide effect of the Google Order does not make it more effective, it could raise concerns regarding comity.

E.            Alternatives Are Available

[81]                          Highlighting the lack of effectiveness are the alternatives available to Equustek. An equitable remedy is not required unless there is no other appropriate remedy at law (Spry, at pp. 402-3). In our view, Equustek has an alternative remedy in law. Datalink has assets in France. Equustek sought a world-wide Mareva injunction to freeze those assets, but the Court of Appeal for British Columbia urged Equustek to pursue a remedy in French courts: “At present, it appears that the proposed defendants reside in France . . . . The information before the Court is that French courts will assume jurisdiction and entertain an application to freeze the assets in that country” (2016 BCCA 190, 88 B.C.L.R. (5th) 168, at para. 24). We see no reason why Equustek cannot do what the Court of Appeal urged it to do. Equustek could also pursue injunctive relief against the ISPs, as was done in Cartier, in order to enforce the December 2012 Order. In addition, Equustek could initiate contempt proceedings in France or in any other jurisdiction with a link to the illegal websites.

III.        Conclusion

[82]                          For these reasons, we are of the view that the Google Order ought not to have been granted. We would allow the appeal and set aside the June 13, 2014 order of the Supreme Court of British Columbia.

 

Appeal dismissed with costs, Côté and Rowe JJ. dissenting.

Solicitors for the appellant: Lenczner Slaght Royce Smith Griffin, Toronto.

Solicitors for the respondents: Robert Fleming Lawyers, Vancouver; Michael Sobkin, Ottawa.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Blake, Cassels & Graydon, Vancouver.

Solicitor for the intervener the OpenMedia Engagement Network: Cynthia Khoo, Vancouver.

Solicitors for the interveners the Reporters Committee for Freedom of the Press, the American Society of News Editors, the Association of Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., the First Amendment Coalition, First Look Media Works, Inc., the New England First Amendment Coalition, the News Media Alliance (formerly known as the Newspaper Association of America), AOL Inc., the California Newspaper Publishers Association, The Associated Press, The Investigative Reporting Workshop at American University, the Online News Association and the Society of Professional Journalists: Blake, Cassels & Graydon, Toronto.

Solicitors for the interveners Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software Freedom Law Centre and the Center for Technology and Society: Blake, Cassels & Graydon, Toronto.

Solicitors for the intervener the Wikimedia Foundation: McInnes Cooper, Halifax.

Solicitors for the intervener the British Columbia Civil Liberties Association: Stockwoods, Toronto.

Solicitors for the intervener the Electronic Frontier Foundation: MacPherson Leslie & Tyerman, Vancouver; Fasken Martineau DuMoulin, Vancouver.

Solicitors for the interveners the International Federation of the Phonographic Industry, Music Canada, the Canadian Publishers’ Council, the Association of Canadian Publishers, the International Confederation of Societies of Authors and Composers, the International Confederation of Music Publishers and the Worldwide Independent Network: McCarthy Tétrault, Toronto.

Solicitors for the intervener the International Federation of Film Producers Associations: MacKenzie Barristers, Toronto.

[1] Para. 148.

[2] Para. 147.

[3] Para. 95.

[4] Para. 76.

[5] Para. 148.

[6] Para. 144.

[7] Paras. 93-94.

[8] Para. 137.

 

Noteable comments about the worldwide injunction against Google:

http://www.cbc.ca/news/canada/british-columbia/google-ruling-1.4181322?cmp=news-digests-canada-and-world-evening

  • “This is the first case to grant a global de-indexing order against the search engine to require it to de-index a site that is making available goods that violate copyright,” said Barry Sookman, the lawyer for Music Canada.
Categories
Criminal Cases

Douglas Garland trial: killed an inventor and his wife and grandson

Prosecutors told a Calgary court that Douglas Garland killed a Calgary couple and grandson over a “petty grudge,” over a patent dispute and burned their bodies in a barrel after killing them.

In her opening statement, Crown prosecutor Vicki Faulkner said Garland was angry with Alvin Liknes over a 2007 dispute relating to a patent for a pump.

Alvin Liknes filed 5 Canadian patent applications for pumps between 2000 and 2009:

Patent Number Title

  1. 2676833           APPARATUS FOR PUMPING FLUIDS FROM A WELL, filed 2009-08-27
  2. 2478953           METHOD AND PUMP APPARATUS FOR REMOVING LIQUIDS FROM WELLS, filed 2004-08-24
  3. 2313617            METHOD AND APPARATUS FOR DE-WATERING PRODUCING GAS WELLS
  4. 2350453           METHOD AND APPARATUS FOR REMOVING WATER FROM WELL-BORE OF GAS WELLS TO PERMIT EFFICIENT PRODUCTION OF GAS
  5. 992801             APPARATUS FOR INCINERATING COMBUSTIBLE WASTES

Alvin Liknes also filed 6 USPTO patent applications for pumps between 2000 and 2011:

Method And Apparatus For Removing Liquids From Wells, US 20060045767 A1, filed on 7 Oct 2004

Apparatus For Pumping Fluids From A Well, US 20100071891 A1, filed on 22 Sep 2008

US20100071891A1-20100325-D00000-Alvin Liknes-well-pump

Douglas Garland is not named in any Canadian patent applications.

Douglas Garland, 56, is charged with three counts of first-degree murder in connection with the missing family members who were last seen June 29, 2014, namely, Alvin Liknes, his wife Kathy Liknes, and their grandson, Nathan O’Brien.

He said “not guilty” in a loud, clear voice when asked for a plea at the outset of his trial.

In her opening statement, the prosecutor told the jury that when Garland learned through internet searches that Alvin and his wife, Kathy Liknes, were planning to leave Calgary, Garland finally decided to act on his grudge.

Forensic analysis of Garland’s computer hard drive will be presented as evidence, said Faulkner, showing research on murder, “how to kill without emotion,” torture and autopsies.

Five-year-old Nathan O’Brien was at his grandparents’ home, having an impromptu sleepover, when the trio was taken.

Nathan’s mother, Jennifer O’Brien testified, that the morning after the sleepover she found a “bloody scene” inside the home with blood on the beds, walls and in the kitchen.

“I immediately saw pools of blood and hand marks of blood on the wall.”

Jurors heard evidence was later found “all over” a rural property just north of Calgary, where Garland lived with his parents.

Alvin and Garland’s relationship sours in 2007

Allen Liknes was prosecution’s second witness.

  • Allen Liknes is Alvin Liknes’ son. He was married to Douglas Garland’s sister Patti at the time the family disappeared.
  • Both Allen and Patti were instrumental in alerting police to information that caused Garland to become a suspect the day the trio was discovered missing, according to the Crown’s opening statement.
  • Allen testified that he, Alvin and Garland had worked together around 2006-2007, when his father hired Garland to do some wiring for a pump the father and son were developing.
  • Alvin Liknes patented the oil and gas pump in 2006 and 2007.
  • Garland worked on wiring for the pump, but the relationship soured around 2007, and by 2010, Alvin Liknes stopped speaking to Garland, his son told jurors.
  • The relationship between Alvin and Garland disintegrated beginning in 2007 when Garland became upset that he had been let go from the business after he stopped answering the phone, Liknes testified.
  • By 2010, he and his father stopped talking to Garland because Alvin had had enough.
  • Allen told officers about the long-standing grudge Garland held against Alvin on June 30, 2014.
  • In cross examination, Allen Likes told defence lawyer Kim Ross that Garland never threatened his father.
  • “He’s not confrontational at all. If anything he’s sneaky.”

Archie Garland’s testimony:

  • Archie Garland, 86, is Douglas Garland’s father:
  • Douglas Garland was upset with Alvin Liknes because of work they’d done together on an oil and gas pump.
  • “Alvin didn’t pay Dougie some money and that didn’t sit well.”

Prosecutors Shane Parker and Vicki Faulkner expect to call about 60 witnesses.

The defence lawyers Kim Ross and Jim Lutz have not stated whether they will call any evidence.

Douglas Garland Trial Headlines:

Read a CBC reporter’s live tweets about the Douglas Garland triple murder trial

Douglas Garland had book on how to dispose of dead bodies, triple-murder trial hears 2017 Jan 24

On the same day triple-murder suspect Douglas Garland was arrested and photographed with injuries covering his body, officers were scouring the farm where he lived and seizing a number of items prosecutors would later introduce as evidence.

Douglas Garland had book on how to dispose of dead bodies, triple-murder trial hears