The common law is often depicted as slow (read: averse) to change. This isn’t surprising given it was founded on the doctrine of stare decisis, which literally means to stand by decisions made in the past. While this criticism may have held water in pre-Charter Canada, when the more controversial decisions were typically reserved for the legislature, a glimpse into our current legal landscape yields a slightly different picture
It’s not that the law is moving more quickly—in fact, our courts are notoriously plagued with excessive delays—but it is receptive to change. Many of our professors made names for themselves commenting on the issues brought about by the introduction of the Charter. To illustrate, under the Bill of Rights, only one federal statute was ever struck down by the Supreme Court of Canada (SCC); in contrast, around thirty-one federal and twenty-seven provincial laws were struck down during the first sixteen years after the introduction of the Charter. Judges appear increasingly comfortable with the idea that their role involves a certain amount of weighing interests and listening carefully to affected groups. More parties are consequently viewing the courts as a viable route to resolution of their disputes. The result is that we are now facing an interesting slew of decisions that it will soon be our role as lawyers to make sense of.
In 2017, we watched as our top Court grappled with issues arising out of technological innovation, globalization, and growing public awareness around topics such as human rights, mental illness, and sexual assault. The SCC brought our common law further into the twenty-first century by, for example, ruling that a text message conversation is capable of attracting a reasonable expectation of privacy under s. 8 (R. v. Marakah), and affirming that a tort claimant need not show a recognizable psychiatric illness as a precondition to recovery for mental injury (Saadati v. Moorhead).
This year promises to be equally eventful, if not more so, with heightened public and media attention on cases such as Trinity Western University v. Law Society of Upper Canada.
While these cases grabbed headlines, I thought I’d share some other upcoming decisions and appeals that caught my attention.
Supreme Court of Canada
Note: The average time lapse between the hearing of an appeal and release of judgment by the SCC in recent years has been around five months, but has been known to vary anywhere from four to eight months. This means that some of the decisions below will be released as early as February of this year.
|Who?||When?||What?||Why should we care?|
|R. v. Suter||Heard on Oct. 11||Sentencing
Suter, while driving and arguing with his spouse, inadvertently pressed hard on the gas pedal thinking it was the break. He drove his car onto a restaurant patio, killing a young child. Suter was pulled from his vehicle and beaten up by patrons. He was initially arrested for impaired driving causing bodily harm. By all accounts, he was sober at the time.
At the police station, Suter spoke to a lawyer and was advised not to provide a breath sample. He followed the advice. As it turns out, refusing to provide a breath sample with the knowledge that your driving just caused death is a criminal offence under s. 255(3.2) of the Criminal Code.
At trial, Suter pleaded guilty to this offence and was given a relatively lenient sentence of four months in jail and a five-year driving prohibition. The Crown appealed.
While on bail, Mr. Suter was kidnapped by vigilantes and had his thumb cut off.
The Court of Appeal reversed and imposed a harsher sentence of twenty-six months’ imprisonment.
|Since Suter pleaded guilty to the offence, the only issues concerned the sentence. The SCC rarely hears sentencing appeals, so this is an unusual occurrence.
The two main issues revolve around when and how the following factors can be considered as mitigating factors in sentencing, and therefore militate in favour of a more lenient sentence:
Mistake of law (mistakenly believing your actions to be lawful): The Court of Appeal rejected this as a mitigating factor in this case, asserting that a person must have an honest belief in the legality of the act. Suter’s defence argued that misunderstandings (i.e. something short of certainty) about legal advice have the potential to mitigate as long as the detainee subjectively believed in the legality of his or her action.
Vigilante justice: The Court of Appeal did not think this should be a mitigating factor. Suter’s defence argued that judges can consider collateral consequences in order to ensure that the sentence is proportionate. The Crown responded with a “floodgates” argument, raising concerns about the potential encouragement of vigilantism.
|Groia v. Law Society of Upper Canada||Heard on Nov. 6||Incivility
Mr. Groia is an experienced securities litigation counsel. He defended the accused in the case R. v. Felderhold, a high-profile insider-training prosecution, and his client was acquitted.
During trial, Mr. Groia made unfounded allegations of prosecutorial misconduct by the Ontario Securities Commission (OSC) prosecutors. In response, the OSC applied for judicial review, claiming Mr. Groia had engaged in uncivil conduct in violation of the Law Society’s Rules of Professional Conduct, and that the trial judge, by failing to control this conduct, lost jurisdiction. This application was dismissed.
After trial, LSUC initiated disciplinary proceedings against Mr. Groia alleging professional misconduct (despite the fact that neither the OSC nor the trial judge had complained to LSUC).
The Hearing Panel imposed a penalty of two months’ suspension. The decision was appealed three times, with limited success.
|Future defence lawyers are going to want to pay special attention to this one.
When does being a “zealous advocate” cross the line into professional misconduct? Various tests for answering this question were proposed by the parties and interveners.
Defence counsel proposed the following test: If criminal defence counsel have an honestly held good faith belief in submissions made in court to a presiding judge— and if the judge receives these submissions without complaint and employs none of the many tools available to sanction counsel—a law society should defer to the judge’s conduct of that trial.
LSUC argued for a test that would require allegations made by one lawyer against another to have a reasonable basis, otherwise they would constitute professional misconduct. McLachlin CJ raised concerns during the hearing that this would effectively ask LSUC to act as trial judge.
According to the Toronto Star, “Legal observers say it could be one of the most important Supreme Court rulings for defence lawyers in recent memory.”
|R. v. Comeau||Heard on Dec. 6–7||Interprovincial trade
Mr. Comeau, a New Brunswick resident, was caught driving home from Quebec with fourteen cases of beer and three bottles of liquor. He bought the alcohol at a cheaper price than he would have paid at home. He was stopped and charged under the province’s Liquor Control Act for exceeding the limit on alcoholic beverages that could be brought into New Brunswick from another province. He was fined under $300 and decided to fight the ticket in court.
Mr. Comeau argued that the provincial law was unenforceable as it was inconsistent with s. 121 of the Constitution Act 1867, which states that all “Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall … be admitted free into each of the other Provinces.”
The Provincial Court of New Brunswick agreed with Mr. Comeau and declared the law unconstitutional.
The Court of Appeal denied leave to appeal.
The New Brunswick Government appealed to the SCC.
|This case is poetically Canadian. What began as one man’s mission to buy cheaper booze has triggered a heated debate going to the heart of Canadian federalism. This debate culminated in a two-day hearing during which the SCC heard from two dozen interested parties.
This decision could drastically alter Canada’s current commercial framework. Most provinces currently set limits on the amount of alcohol a person can bring back from another province for personal consumption.
If fully accepted by the SCC, the lower court’s ruling could lead to unrestricted interprovincial trade in all goods.
Wineries, breweries, and cannabis companies tend to support Comeau’s position, while farmers and governments tend to object.
The provinces argued that the Constitution does not prohibit non-tariff barriers to interprovincial trade. This narrow reading is consistent with how s. 121 has been interpreted since 1921. It remains to be seen whether the SCC will overrule this long-standing precedent.
|Mikisew Cree First Nation v. Canada||Heard on Jan. 15||Duty to consult
In 2012, legislative amendments were made by Parliament that had the potential to affect Mikisew Cree First Nation’s treaty rights. Mikisew sought judicial review, alleging that the federal government had a duty to consult Mikisew before enacting laws that could affect their treaty rights.
The Federal Court ruled that the Crown was indeed under a duty to consult Mikisew when the bills were introduced in Parliament.
The Federal Court of Appeal reversed, expressing concern that importing the the duty to consult into the legislative process offended the doctrine of the separation of powers and the principle of parliamentary privilege. Mikisew appealed.
|According to the CBC, this decision could “force lawmakers across the country to give First Nations a role in drafting legislation that affects treaty rights.”
The Crown’s duty to consult with Indigenous groups, the subject of two important SCC decisions released in 2017, typically arises in the context of decisions made by regulatory bodies. This case seeks recognition that the duty to consult is present not only when laws are applied, but also when laws are being made.
In other words, this decision could mark an important step towards reconciliation at all levels of government.
|Who?||When?||What?||Why should we care?|
|Wardak v. Froom||Judgment of the Ontario Superior Court of Justice released Feb. 17 (2017)||Social host liability
Mr. and Mrs. Froom hosted a party for their son’s nineteenth birthday. Wardak, eighteen years old at the time, attended the party. The Frooms did not serve alcohol but knew that there would be drinking at the party. Mr. Froom noticed that Wardak appeared to be drunk and became concerned. Mr. Froom went upstairs for a brief time, during which Wardak left and walked home. Wardak then got into his car, drove over a fire hydrant, and hit a tree. As a result of the accident, Wardak became a quadriplegic.
Wardak sued Mr. and Mrs. Froom, who responded with a motion to summarily dismiss the claim on the basis that there was no genuine issue for trial. The motion was denied, which means that the issue will go to trial.
|If you have taken first-year Tort Law, you are likely familiar with the case of Childs v. Desormeaux.
The Frooms relied on Childs to support the contention that social hosts are not liable for injuries suffered by guests after leaving their property. However, the SCC in Childs arguably left the door open to the possibility that a social host may owe a duty of care to a guest, but found no such duty on the facts of that case.
This decision presents an opportunity for a court to explicitly recognize the category of social host liability.
|Saretzky trial||Convicted on June 28 (2017)||Sentencing
Saretzky, twenty-four years old, was convicted by a jury for three counts of first-degree murder and for committing an indignity to a toddler’s body. The facts of the case were gruesome and disturbing, to say the least.
He was sentenced to life in prison with no possibility of parole for seventy-five years (three consecutive twenty-five-year parole ineligibility periods), meaning that he will be nearing his one hundredth birthday before release is possible.
Saretzky is appealing both the conviction and sentence before the Alberta Court of Appeal, and commentators suspect this case will make its way to the SCC.
|Consecutive parole ineligibilities are relatively new to Canadian law. They were made possible by federal legislation enacted in 2011. Saretzky will likely challenge his sentence on the grounds that the punishment is cruel and unusual contrary to s. 12 of the Charter.
This new sentencing option brings Canada’s sentencing regime closer in alignment with the U.S. regime. The judge sentencing Saretzky reportedly remarked that there is “next to no chance he will ever be free. This chapter is closed.” One can’t help but notice a similar sentiment present in the comment (“I’ve just signed your death warrant”) recently made by the U.S. judge sentencing Larry Nassar to up to 175 years in prison.
|R. v. Barton||Judgment of the Alberta Court of Appeal released June 30 (2017)||Jury charge in cases involving sexual assault
Gladue was found dead in the bathtub of a hotel occupied by Barton. She died from blood loss resulting from a tear in her vaginal wall. Barton admitted to causing the death, but claimed that it was an accident occurring in the course of consensual sexual activity.
A jury found Barton not guilty of either murder or manslaughter. The Crown appealed the acquittals.
The Alberta Court of Appeal ordered a new first degree murder trial.
This matter has been opened at the SCC, which means that parties are waiting to hear whether leave to appeal will be granted.
|The Court of Appeal delivered a hard-hitting judgment criticizing the mishandling of sexual assault cases in our current legal system. Its decision spotlights numerous systemic problems and merits a close read.
One of the most notable issues raised is its call for a national jury committee to reform outdated pattern jury instructions provided in cases involving sexual assault. The court points out that the instructions do not accurately convey the current legal definition of “consent” for the purposes of the mens rea for sexual assault. In particular, the jury in this case was not properly informed that consent to sexual activity does not extend to any form of sexual activity.
It is also of note that the Court of Appeal decision was co-authored by Justice Martin, who is now on the SCC.
|R. v. Jarvis||Judgment of the Ontario Court of Appeal released Oct. 12 (2017)||Voyeurism
Jarvis, a high school teacher, surreptitiously recorded videos of his female students through the use of a camera pen. The videos, primarily taken while he was conversing with students, focused on their cleavage. His actions were discovered and reported by a colleague. He was charged with the offence of voyeurism under s. 162(1) of the Criminal Code.
The trial judge acquitted him of the voyeurism charge.
The Court of Appeal upheld the acquittal.
This matter has been opened at the SCC. Given that the Crown has an appeal as of right, it will almost certainly be heard.
|The offence of voyeurism is relatively new and remains a bit of an enigma in Canadian criminal law. It was enacted in 2005 to address public concerns about the use of technology to spy on others for a sexual purpose. The provision has received limited judicial attention. The outcome of this case will likely turn on whether the Court thinks the high school students had a “reasonable expectation of privacy” in the circumstances.
One hopes the SCC will provide some much-needed clarification in this area of criminal law and, in particular, provide a workable definition of “privacy” outside of the s. 8 context.
|Araya v. Nevsun Resources Ltd.||Judgment of the British Columbia Court of Appeal released Nov. 21 (2017)||International human rights law
The plaintiffs in this case are refugees from Eritrea. They alleged that Nevsun, a publicly-held British Columbia corporation, engaged Eritrean state-run contractors and the Eritrean military to build a mine there. The plaintiffs say they were among those who were forced to work at the mine in inhuman conditions. The plaintiffs alleged that Nevsun was complicit in the use of forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity.
The Supreme Court of British Columbia rejected Nevsun’s motion to dismiss the action.
The British Columbia Court of Appeal rejected Nevsun’s appeal to dismiss the action, clearing the path for the case to proceed in Canadian courts. Nevsun appealed to the SCC.
|This dispute reflects the changing conception of international law from a system that regulates conduct between states, to a system that increasingly regulates conduct within states. The crux of Nevsun’s argument is that it is inappropriate for a Canadian court to adjudicate the legality of a foreign state’s conduct.
If the SCC allows the case to proceed, it would be one of the first cases in Canada which advances human rights claims based directly on violations on international law.
|British Columbia Civil Liberties Association v. Canada (Attorney General)||Judgment of the Supreme Court of British Columbia released Jan. 17 (2018)||Solitary confinement
The B.C. Civil Liberties Association and the John Howard Society of Canada brought a challenge against the federal government, arguing that the practice of “administrative segregation” (more commonly referred to as solitary confinement) is unconstitutional. There was no individual plaintiff, but the groups were accorded public interest standing.
The Supreme Court of British Columbia released a lengthy decision in which it declared that the sections of the Corrections and Conditional Release Act that allow for indefinite solitary confinement are unconstitutional (with a twelve-month suspension of the declaration of invalidity).
The provisions were held to violate s. 7 of the Charter, as well as s. 15 to the extent that they discriminate against Indigenous and mentally ill inmates.
|This decision follows an Ontario decision released in December (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen) which held that solitary confinement exceeding five days is unconstitutional. Together, these decisions represent a significant step towards improving conditions of confinement in Canada.
The B.C. decision contains a detailed and illuminating history on the use of solitary confinement in North American prisons.
Shortly after the ruling, Public Safety Minister Ralph Goodale released a statement indicating that the government is reviewing all recent court judgments, and emphasizing the government’s commitment to ensuring consistency with the Charter.
If you’re interested in staying up to date with the latest cases, the blog run by Supreme Advocacy LLP, found at supremeadvocacy.ca, is an excellent resource.