TLA presents the SCC 2021 Roundtable: Latest Trends and Landmark Cases
On December 2, the Toronto Lawyers Association (TLA) hosted a discussion on recent cases from the Supreme Court of Canada. Moderated by Sean Fine, journalist for The Globe and Mail, the panel discussed Charter rights, the role of dissenting opinions, and unwritten constitutional principles.
Joan Rataic-Lang, Executive Director of the TLA, provided opening remarks while Robin McKechney introduced the panellists. The event featured Professor Benjamin Berger, Danielle Robitaille, Sarit Batner, and Nader Hasan.
Fine started the discussion by introducing Ward v Quebec (Commission des droits de la personne et des droits de la jeuness), 2021 SCC 43. Ward is a comedian who mocked a child with a facial disability. In a 5-4 decision, the Court held that a discrimination claim was not established. Some panellists were surprised by the decision. The majority found that the child was singled out, not on the basis of his disability, but rather because he is a public figure. The judges disagreed on how the right to dignity balanced against the right to free speech on the facts at hand. Since the decision was under the Quebec Charter of Human Rights and Freedoms, which, unlike the Canadian Charter of Rights and Freedoms, includes human dignity as a free-standing right, it likely tilted the case more in favour of the child. The way that the Court split reveals a chasm in how the Court views equality and disability.
The panellists then discussed Quebec (Attorney General) v 9147-0732 Quebec Inc, 2020 SCC 32. Here, a Quebec company argued that imposing a mandatory minimum fine for carrying out construction work without a licence was a violation of its right to be free of cruel and unusual punishment under section 12 of the Canadian Charter. The Court unanimously held that section 12 exclusively protects human dignity; however, there was debate over the primacy of texts and the role of international law. The majority held that the liberal reference to international jurisprudence needed to be reigned in. A consequence of the decision is that the text of the Constitution now has primordial significance compared to its purpose. Whether a court begins with the text or the purpose as an anchor for interpreting the Constitution will be significant in cases such as the upcoming Bill 21 appeal.
Fine brought up Justice Rosalie Abella’s retirement from the Court on July 1, 2021, and wondered who would replace her as the “loud, progressive voice” on the bench. The panellists agreed that Justice Abella’s retirement was a loss but disagreed on whether she was necessarily an anchor for the so-called progressive wing. While she was known for developing Canada’s equality jurisprudence under section 15 of the Charter, she was also a swing vote on several criminal law cases.
As the discussion turned to the more frequent split decisions from the Court in recent years, some panellists pointed out that such decisions have the potential to erode the public’s esteem in the Court as a high court that is guiding the law. The law seems murky when there are four differing decisions. Dissents, however, are also effective in showing complexity and laying the groundwork for future changes in the law.
Fine brought up Indigenous representation at the Court and the Indigenous Bar Association’s call for a spot on the Court to be reserved for an Indigenous judge. The panellists agreed that Indigenous representation on the Court is much-needed and pointed to R v Khill, 2021 SCC 37, a case that involved the death of an Indigenous man. The decision had no mention of the victim’s Indigeneous background. The panel concluded that increased diversity on the bench that better represents Canadians will lead to stronger jurisprudence and more confidence in the courts.
The panel wrapped up with a discussion on unwritten constitution principles. In Toronto (City) v Ontario (Attorney General), 2021 SCC 34, Toronto relied on the unwritten principle of democracy to argue that the change from 47 to 25 wards halfway into the election period was unconstitutional. The majority in a 5-4 split held that unwritten constitutional principles cannot be used as a basis for invalidating legislation. This shows the Court is interpreting the Constitution more narrowly. The closing down of the unwritten constitutional principles may be a canary in the coal mine in how the Court perceives the role of the judiciary in relation to the Executive and Parliament.
