Baril v. Obelnicki,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Steel and Freedman, JJ.A.
• Neutral Citation: 2007 MBCA 40
• Citation: 2007 MBCA 40,(2007), 214 Man.R.(2d) 7 (CA),279 DLR (4th) 304,[2007] 6 WWR 304,[2007] MJ No 110 (QL),156 CRR (2d) 181,214 Man R (2d) 7,214 Man.R.(2d) 7,279 D.L.R. (4th) 304,[2007] M.J. No 110 (QL),214 ManR(2d) 7,(2007), 214 ManR(2d) 7 (CA)
• Date: 23 April 2007
• Court: Court of Appeal (Manitoba)

Baril v. Obelnicki (2007), 214 Man.R.(2d) 7 (CA);

      395 W.A.C. 7

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. AP.029

Michelle Lynn Baril (applicant/respondent) v. Peter Obelnicki (respondent/respondent) and Attorney General of Manitoba (appellant)

(AI 04-30-05869; 2007 MBCA 40)

Indexed As: Baril v. Obelnicki

Manitoba Court of Appeal

Scott, C.J.M., Steel and Freedman, JJ.A.

April 23, 2007.

Summary:

Baril obtained an ex parte protection order under the Domestic Violence and Stalking Prevention, Protection and Compensation Act on the ground that her neighbour was "stalking" her. When served, the neighbour applied for a review of the merits, challenging the order on its merits and on constitutional grounds. The review was dismissed on its merits, as the court was not satisfied that the neighbour established, on a balance of probabilities, that the order should be set aside. On the constitutional issues, the neighbour submitted that (1) the Act was in pith and substance criminal law and ultra vires the province as Parliament had exclusive jurisdiction over the criminal law (Constitution Act, s. 91(27)); (2) the province impermissibly conferred powers on justices of the peace normally exercised by s. 96 judges; and (3) portions of the Act violated ss. 2, 7, 9 and 11 of the Charter.

The Manitoba Court of Queen's Bench, in a judgment reported (2004), 183 Man.R.(2d) 118; 2004 MBQB 92, held that (1) the Act was not ultra vires the exclusive federal jurisdiction over the criminal law (Constitution Act, s. 91(27)), as the Act was not in pith and substance criminal; (2) the Act was not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act; (3) provisions of the Act violated freedom of expression (Charter, s. 2(b)) and liberty rights not in accordance with the principles of fundamental justice (s. 7). The review provisions (reverse onus) were unfair and not justified as a reasonable limit prescribed by law. The appropriate remedy was to strike down ss. 12(2) and 12(3) of the Act, leaving the balance of the Act intact. The review process would then put the onus on the complainant to prove her complaint on the review rather than requiring the person subject to the order to prove that the order should be set aside. The Attorney General of Manitoba appealed the finding that ss. 12(2) and 12(3) infringed ss. 2(b) and 7 of the Charter and were not saved under s. 1 as a reasonable limit prescribed by law. The neighbour cross-appealed the decision respecting the constitutional division of powers and s. 96 of the Constitution Act, 1867.

The Manitoba Court of Appeal allowed the appeal and dismissed the cross-appeal. The court held that (1) the Act was not ultra vires the exclusive federal jurisdiction over the criminal law (Constitution Act, s. 91(27)), as the Act was not in pith and substance criminal; (2) the Act was not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act; (3) provisions of the Act violated freedom of expression (Charter, s. 2(b)), but were saved as a reasonable limit prescribed by law (Charter, s. 1); and (4) provisions of the Act violated liberty rights in a manner not in accordance with the principles of fundamental justice only if s. 12(2) was a true reverse onus provision (which the court determined it was not), in which case the infringement would be remedied by reading down s. 12(2) as placing only an evidentiary burden on the person seeking to have the court exercise its discretion to set aside the order.

Civil Rights - Topic 660.5

Liberty - Limitations on - Anti-stalking legislation - The Manitoba Court of Appeal held that provisions of the Domestic Violence and Stalking Prevention, Protection and Compensation Act potentially infringed liberty interests under s. 7 of the Charter - At issue was whether the infringement was contrary to the principles of fundamental justice - The Act provided for an ex parte protection order based on unchallenged evidence - After notice was given to the person subject to the order, a review process permitted the evidence at the ex parte hearing to be used and required the person subject to the order to establish, on a balance of probabilities, that the protection order should be set aside - A without notice hearing was not contrary to the principles of fundamental justice, where the unchallenged evidence was under oath, was recorded, a prima facie case was required, the order was not enforceable until notice was given and the order was reviewable and subject to revocation or variation by the court - The use of evidence from the without notice hearing (not subject to contemporaneous cross-examination), was also not contrary to the principles of fundamental justice, as the Queen's Bench Rules provided for cross-examination - The court held that the burden on the person subject to the order to establish, on a balance of probabilities, that the order should be set aside was not a "reverse onus" provision (no requirement to prove anything) - If it was a reverse onus, the denial of rights contrary to the principles of fundamental justice was remedied by reading down the section so that the person bore only an evidentiary burden to raise an issue demonstrating that the judge should exercise his or her discretion to set aside the order - See paragraphs 65 to 128.

Civil Rights - Topic 1842.3

Freedom of speech or expression - Limitations on - Anti-stalking legislation - The Manitoba Court of Appeal affirmed that s. 7(1)(b) of the Domestic Violence and Stalking Prevention, Protection and Compensation Act, which provided for an ex parte protection order based on unchallenged evidence, infringed freedom of expression (Charter, s. 2(b)) by prohibiting one person from communicating with another - As to whether s. 7(1)(b) was a reasonable limit prescribed by law (Charter, s. 1), the court agreed "that restriction on expression that has no valid social purpose, and indeed causes harm to others, will require little by way of external justification" - The infringement was saved as a reasonable limit prescribed by law - See paragraphs 58 to 64.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - The Domestic Violence and Stalking Prevention, Protection and Compensation Act provided for the obtention of an ex parte protection order from a justice of the peace - The Attorney General submitted that the Act should not be subjected to Charter scrutiny "on the basis that a judicial order resolving a dispute between private parties in not government action as contemplated under s. 32 of the Charter" - The Manitoba Court of Appeal disagreed - This was not a dispute between private parties based on the common law - Sections of a provincial statute were being challenged - The Charter applied to statutes setting out rights under civil law between individuals - See paragraphs 53 to 54.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 660.5 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1842.3 ].

Civil Rights - Topic 8380.18

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading down - [See Civil Rights - Topic 660.5 ].

Constitutional Law - Topic 6515

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Anti-stalking legislation - The Manitoba Court of Appeal affirmed that the Domestic Violence and Stalking Prevention, Protection and Compensation Act was not ultra vires the province as infringing Parliament's exclusive jurisdiction over the criminal law under s. 91(27) of the Constitution Act - The Act was not in pith and substance criminal, but "the prevention of crime and the creation of civil remedies for crime or objectionable behaviour that might lead to crime" - The provinces had jurisdiction under several heads of power under s. 92 respecting crime prevention and personal safety - See paragraphs 32 to 42.

Constitutional Law - Topic 8630

Judicial power - Appointment of judges (s. 96) - Anti-stalking legislation - The Manitoba Court of Appeal affirmed that provisions of the Domestic Violence and Stalking Prevention, Protection and Compensation Act were not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act - The court stated, inter alia, that "I agree ... that this legislation relates to the prevention of crimes and is in the nature of preventive justice and, as such, it is valid because, historically, the province shared original jurisdiction over such problems" - See paragraphs 43 to 52.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Baril obtained an ex parte protection order under the Domestic Violence and Stalking Prevention, Protection and Compensation Act on the ground that her neighbour was "stalking" her - When served, the neighbour applied for a review of the merits, challenging the order on its merits and on constitutional grounds - The review was dismissed on its merits, as the court was not satisfied that the neighbour established, on a balance of probabilities, that the order should be set aside - A subsequent challenge to the constitutionality of the Act under the Charter (ss. 2(b) and 7) and the Constitution Act, 1867 (ss. 91(27) and 96) was allowed in part - Provisions of the Act violated freedom of expression (Charter, s. 2(b)) and liberty rights not in accordance with the principles of fundamental justice (s. 7) - The review provisions (reverse onus) were unfair and not justified as a reasonable limit prescribed by law - The appropriate remedy was to strike down ss. 12(2) and 12(3) of the Act, leaving the balance of the Act intact - The Attorney General of Manitoba, a party under the Constitutional Questions Act, appealed - The protection order had been terminated with the consent of the parties and the Act had been amended to address some of the concerns raised - The Manitoba Court of Appeal held that the appeal was not moot - Notwithstanding the termination of the order and the statutory amendments, the Attorney General was a party with a right of appeal on questions of law or jurisdiction (Constitutional Questions Act, s. 25(1)) - See paragraphs 24 to 31.

Family Law - Topic 1142

Domestic violence or exploitation - Anti-stalking legislation - Validity of legislation - The Domestic Violence and Stalking Prevention, Protection and Compensation Act provided for the obtention of an ex parte protection order from a justice of the peace - After the person subject to the order was given notice, that person was entitled to a review of the order, but had the onus of establishing, on a balance of probabilities, that the protection order should be set aside (s. 12(2)) - Further, the evidence before the justice of the peace was evidence at the hearing and the person subject to the order could present additional evidence (s. 12(3)) - The Manitoba Court of Appeal held that (1) the Act was not ultra vires the exclusive federal jurisdiction over the criminal law (Constitution Act, s. 91(27)), as the Act was not in pith and substance criminal; (2) the Act was not ultra vires the province for purporting to confer on designated justices of the peace powers reserved to superior court judges under s. 96 of the Constitution Act; (3) provisions of the Act violated freedom of expression (Charter, s. 2(b)), but were saved as a reasonable limit prescribed by law (Charter, s. 1); and (4) provisions of the Act violated liberty rights in a manner not in accordance with the principles of fundamental justice only if s. 12(2) was a true reverse onus provision (which the court determined it was not), in which case the infringement would be remedied by reading down s. 12(2) as placing only an evidentiary burden on the person seeking to have the court exercise its discretion to set aside the order.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Cases Noticed:

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 28].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 28].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 33].

Bédard v. Dawson, [1923] S.C.R. 681; 40 C.C.C. 404, refd to. [para. 36].

Reference Re Adoption Act (Ont.), [1938] S.C.R. 398, refd to. [para. 36].

McNeil v. Nova Scotia Board of Censors, [1978] 2 S.C.R. 662; 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128, refd to. [para. 36].

Dupond v. Montreal (City), [1978] 2 S.C.R. 770; 19 N.R. 478, refd to. [para. 36].

Canada (Attorney General) v. Montreal (City) - see Dupond v. Montreal (City).

R. v. Chiasson (1982), 39 N.B.R.(2d) 631; 103 A.P.R. 631; 66 C.C.C.(2d) 195 (C.A.), affd. [1984] 1 S.C.R. 266; 56 N.R. 213; 77 N.B.R.(2d) 179; 195 A.P.R. 179, refd to. [para. 36].

Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 37].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 39].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 41].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91; 62 C.C.C.(3d) 385, refd to. [para. 44].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 45].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1, refd to. [para. 45].

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.) et al., [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271; 57 D.L.R.(4th) 1, refd to. [para. 45].

MacKenzie v. Martin, [1954] S.C.R. 361, refd to. [para. 48].

Reference Re Family Relations Act - see Family Relations Act of British Columbia, Re.

Family Relations Act of British Columbia, Re, [1982] 1 S.C.R. 62; 40 N.R. 206, refd to. [para. 50].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 51].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 54].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 54].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 56].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 59].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1; 70 C.C.C.(3d) 129, refd to. [para. 60].

R. v. Davis (A.A.) (1999), 143 Man.R.(2d) 105 (Q.B.), refd to. [para. 62].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 65].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 65].

Rombaut et al. v. New Brunswick (Minister of Health and Community Services) et al. (2001), 240 N.B.R.(2d) 258; 622 A.P.R. 258; 2001 NBCA 75, refd to. [para. 66].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 70].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 69].

R. v. Budreo (W.) (2000), 128 O.A.C. 105; 46 O.R.(3d) 481; 142 C.C.C.(3d) 225 (C.A.), leave to appeal refused (2001), 271 N.R. 197; 149 O.A.C. 399 (S.C.C.), refd to. [para. 69].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 71].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 74].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 79].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 79].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para.79].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 81].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 81].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 91].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 91].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 92].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 96].

Beally v. Allsopp (2000), 149 Man.R.(2d) 277; 2000 MBQB 142, refd to. [para. 107].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 110].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 111].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 111].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 52 Q.A.C. 1; 77 C.C.C.(3d) 124. addendum 147 N.R. 335; refd to. [para. 112].

Chaboyer v. Thera (2002), 162 Man.R.(2d) 288; 2002 MBQB 81, refd to. [para. 120].

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241; 94 C.C.C.(3d) 385, refd to. [para. 122].

R. v. Laba - see R. v. Johnson et al.

Statutes Noticed:

Constitution Act, 1867, sect. 96 [para. 43].

Constitutional Questions Act, S.M. 1986-87, c. 31; C.C.S.M., c. C-180, sect. 7(6) [para. 26].

Domestic Violence and Stalking Prevention, Protection and Compensation Act, S.M. 1998, c. 41; C.C.S.M., c. D-93, sect. 2(2), sect. 2(3) [para. 11]; sect. 12(2) [para. 108]; sect. 12(3) [para. 99].

Rules of Court (Man.), Queen's Bench Rules, rule 39.03(4), rule 39.03(5) [para. 105].

Authors and Works Noticed:

Abrams, Karen M., and Erlick Robinson, Gail, Stalking Part I: An Overview of the Problem (1998), 43 Can. J. Psychiatry 473, generally [para. 82].

Abrams, Karen M., and Erlick Robinson, Gail, Stalking Part II: Victims' Problems With the Legal System and Therapeutic Considerations (1998), 43 Can. J. Psychiatry 477, generally [para. 82].

England, Law Commission, Binding Over, Report No. 222 (1994), generally [para. 48].

Hansard (Man.) - see Manitoba, Hansard, Legislative Assembly Debates and Proceedings.

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2006Looseleaf Supp.), vols. 1, para. 16.4(a) [para. 41]; vol. 2, para. 34.2(c) [para. 54].

Lavoie Inquiry - see Schulman, Perry W., A Study of Domestic Violence and the Justice System in Manitoba.

Magone, C.R., Power of Justices and Magistrates to Dispense Preventive Justice (1949), 93 Can. C.C. 161, generally [para. 48].

Manitoba, Hansard, Legislative Assembly Debates and Proceedings, No. 47 (May 13, 1998), p. 2978 [para. 35].

Manitoba, Law Reform Commission, Report on Stalking, Report No. 98 (1997), pp. 52 [para. 83]; 53 [para. 89].

Milton, F., The English Magistracy (1967), p. 90 [para. 48].

Pedlar, Dorothy, The Domestic Violence Review into the Administration of Justice in Manitoba (Pedlar Report) (1991), generally [para. 6].

Schulman, Perry W., A Study of Domestic Violence and the Justice System in Manitoba (Lavoie Inquiry) (1997), p. 165 [para. 48].

Counsel:

E.B. Szach, for the appellant;

R.K. Hnatiuk, for the respondent, P. Obel-nicki.

This appeal was heard on June 13-14, 2006, before Scott, C.J.M., Steel and Freedman, JJ.A., of the Manitoba Court of Appeal.

On April 23, 2007, Steel, J.A., delivered the following judgment for the Court of Appeal.