Law Times

Law Times • apriL 10, 2017 Page 7 www.lawtimesnews.com Fluid border isn't new BY PHILIP GIRARD T he sleepy town of Emerson, Man. has been much in the news re- cently as the entry point to Can- ada for refugees f leeing Donald Trump's America. But this is not the first time Emerson's role as a border town has thrust it into the limelight. In 1876, U.S. soldier Eugene Shinkle decided to cross into Canada at Emerson, where he proceeded to get very drunk and disorderly in a bar. Shinkle no doubt assumed he could blow off some steam beyond the reach of American military law. However, a U.S. army officer who was searching for deserters got wind of the in- cident and asked a friend of his, a lawyer in Emerson named Thomas Bevans, to seize Shinkle. The U.S. army officer and Bev- ans entered the bar and Bevans subdued Shinkle, who was bundled into a sleigh and soon found himself back on the U.S. side of the border at Fort Pembina where he would be disciplined. Upon returning to Emerson and finding there was a war- rant for his arrest, Bevans himself slipped back across the U.S. border until the heat was off. And it soon was, because the pro- vincial government dropped the charges against Bevans, aware that cross-border abduction of deserters and troublemakers was an accepted practice. The f luidity of the border prior to 1930, when the Depression gave rise to stricter controls, made it tempting for criminals to escape the consequences of their acts in one country by f leeing to the other. The Webster-Ashburton Treaty of 1842 aimed to prevent this, but it covered just seven offences. Its limited reach in turn inspired a little-known form of historic trans-border co- operation, whereby local law enforcement officials in one country would detain, even kidnap, miscreants wanted in the other country and deliver them back to that country's law enforcement officials. All of this took place without the direction or involvement of national governments, though the latter sometimes winked at or implicitly ap- proved such actions. This co-operation, revealed in cases such as Shinkle's, is examined in a recent book by UBC history professor Brad- ley Miller, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819-1914 (2016). Miller points out that such co-operation involved a well-understood set of protocols and rituals that, far from being lawless, was understood as a form of supranational justice. Although this form of "low law" violat- ed the formal law of extradition, it actual- ly aimed to confirm national sovereignty by returning the criminal to be dealt with by the justice system of the appropriate country. Although it had elements of self- help, it was not vigilantism as any eventu- al punishment was administered accord- ing to law, not by the kidnappers. The kidnappings usually involved nationals or officials of the host country doing the work of detention, with a sher- iff or military officer of the other juris- diction merely acting as observers until they reached the border with the accused, at which time they would be handed over. This process aimed to prevent any obvious challenge to national sovereignty. Thus, it was the Canadian lawyer Bevans who detained Shinkle and arranged for his transport to the border. Once such incidents became known to the national govern- ments involved, the one whose sovereignty was allegedly vio- lated by the kidnapping on its soil would demand an apology, the other government would comply and the matter would usually end there. Fugitive slaves posed a particular problem prior to the U.S. Civil War. The Webster-Ashburton Treaty severely limit- ed the number of extraditable offences in part in order to avoid numerous claims by slave holders whose slaves had committed minor crimes and then f led to Canada. The regime of cross-border co- operation often did not work in such cases because the return of slaves to the U.S. — even those who may have commit- ted serious crimes — was resisted by local black communities, sometimes assisted by whites. Thus, when Tennessee slave owner Thomas James showed up in Chatham, Ont. in 1857 seeking the return of two of his slaves who had f led there, the black community protected them and the may- or of Chatham refused to intervene, leav- ing James to return empty-handed. The dominant theme of 19 th -century cross-border law, according to Miller, was the paramountcy of protecting local com- munities from crime and the consequent under-valuing of individual rights or civil liberties. It was this congruence of goals as between national governments and local communities that permitted the regime of cross-border co-operation to remain in place for so long. In the later 20 th and 21 st centuries, the expansion of formal extra- dition regimes and the rise of refugee law has given much more protection to indi- vidual rights. Much of the autonomous role played by local decision-makers in the 19 th century has migrated higher up in the legal hierarchy. In some ways, this is a positive devel- opment. While today's border crossers at Emerson are not criminals, one can imag- ine local resistance to racialized outsiders being galvanized if communities were left to their own devices. Rights to claim asy- lum based on international law are taken seriously today and protected by repre- sentatives of the federal state. Informal cross-border co-operation still happens, but it occurs higher up in the state hierar- chy and, unlike the 19 th -century kidnap- pings, outside of the public eye. It can thus take on a much darker aspect, as we found out in the case of Maher Arar, a Syrian- born Canadian who was wrongly accused as a terrorist by the RCMP and sent by the U.S. to Syria, where he was tortured be- fore being released to Canada. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His email ad- dress is pgirard@osgoode.yorku.ca. To strike or not to strike BY NADIA CAMPION A motion to strike is an important tool in the litigator's arsenal, often used to achieve a speedy end to litigation. The courts have repeatedly held that the test is whether it is plain and obvious that the pleading, construed gener- ously, discloses no reasonable cause of action or defence assuming the facts pleaded to be true. But what happens when the court is faced with a novel claim — one that does not fit neatly into the traditional confines of exist- ing legal doctrines, such as negligence? The answer is that public policy considerations must move in to fill the gap. Over the last few years, there has been a series of novel claims advanced against various public authori- ties, some of which have survived motions to strike and others that have failed. The common thread running through these cases is the court's careful consideration of its duty not to cross into the role of lawmaker, a role reserved for elected representatives. Balanced against that is the role of the court to consider claims founded upon an evolution of the common law. As observed in Paradis Honey Ltd. v. Canada, 2015 FCA 89, "The common law — and particularly public law — is not a petrified forest." In deciding whether to allow a novel claim to proceed, the courts weigh whether public pol- icy considerations support expanding the common law to accommodate such claims. Take the example of the beekeepers' case in Para- dis Honey Ltd., which involved a proposed class action against, among others, the minister of Agriculture. The complaint was that since 2007 the government had ad- opted a blanket policy prohibition on the importation of bee "packages," which are cereal-box-sized containers holding small colonies used to replace colonies lost in the winter. The beekeepers sought monetary relief for what they described as an "unauthorized, scientifically unsup- ported blanket policy" preventing them from exercising their legal rights to apply for importation permits. The Federal Court of Appeal characterized the claim as "novel" and stated that it should not be re- stricted to principles underlying the tort of negligence. The court criticized past attempts to apply the analyti- cal framework for negligence to cases involving public authorities, stating, "[W]e have been using a screw- driver to turn a bolt." It reviewed the beekeepers' claim under the umbrella of administrative and public law and concluded that it was not plain and obvious that a court would exercise its discretion against giving the beekeepers monetary relief. Approximately two months later, a decision involv- ing a claim against the Toronto Police Services Board surfaced in Patrong v. Banks et al, 2015 ONSC 3078. The claim involved a man who was shot in a drive-by shooting. The shooter was a violent criminal known to the police. Notwithstanding arrest orders from senior officers, the shooter was not arrested. The injured man issued a claim against the police for compensation. A motion to strike was filed. The motion was dismissed. While the court concluded that the claim was a viable claim in negligence, it also determined that the claim for monetary relief was supported by broader public law principles. The court observed that "the common law is f lexible enough to develop principles that fit cas- es brought against government actors." Fast forward to the recent decision of the Supreme Court of Canada in Ernst v. Alberta Energy Regula- tor, 2017 SCC 1, where the plaintiff claimed that the regulator breached her right to freedom of expression and sought damages under s. 24(1) of the Charter. The plaintiff was a critic who often spoke to the media about her concerns in respect of oil and gas develop- ment near her home. She characterized the regulator's conduct as punitive, falling outside the scope of an ad- judicative function. The judge at first instance struck the claim as barred by an immunity provision con- tained in s. 3 of the Energy Resources Conservation Act. The Court of Appeal agreed and dismissed the plaintiff 's appeal. At the Supreme Court of Canada, the plaintiff argued that s. 43 was unconstitutional because it pur- ported to bar her claim for Charter damages. Focusing on the constitutionality of s. 43, the majority dismissed the appeal. The dissent, by contrast, focused on the test for striking out claims. Characterizing the plaintiff 's claim as novel, it determined that it was not plain and obvious that the alleged conduct taken purely to pun- ish a member of the public would necessarily be barred by s. 43. It viewed the allegations made by the plaintiff as serious, which, if proved, could rise to the level of abuse of power by a public authority aimed at curtail- ing freedom of expression. While the general rule is that courts must err on the side of permitting novel but arguable claims to pro- ceed, these cases demonstrate that one of the primary driving forces behind novel claims is public policy: the protection against bad faith and improper govern- ment action in Paradis Honey Ltd., the protection of the public from violent criminals in Patrong and the importance of Charter compliance as a foundational principle of good governance in the dissent in Ernst. Where there are significant public policy issues at stake, room will be made for novel claims. Thus, for lawyers and judges alike faced with claims involving maladministration or conduct offensive to public law values, the question is whether it is fair and reasonable that the public authority ought to compen- sate the injured parties for the losses alleged. If the an- swer is yes, then the claim, no matter how novel, should likely persist. If the answer is no, then the claim should likely perish. Either way, novel claims and the lawyers who pursue them are what ultimately allow the devel- opment of the common law to march forward. LT uNadia Campion is a partner and litigator at Polley Faith LLP. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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