2019 Year in Review at the Supreme Court of Canada

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2019 was another landmark year at the Supreme Court of Canada. The Court revisited the framework for administrative law, interpreted important laws defining citizens’ rights and obligations, and reaffirmed fundamental tenets of freedom and democracy that help define who we are as a Canadian society. The Court highlighted the following 12 decisions as its Notable Decisions of the year. McCarthy Tétrault is honoured to have acted as counsel for parties and interveners in five of these cases (Bell, Stillman, Fleming, Keatley and Jarvis).

In this post we provide a brief overview of these Notable Decisions, with links to their full text, and some related McCarthy Tétrault posts. 

1. Bell Canada v. Canada (Attorney General), 2019 SCC 66 and Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Federal, civil by leave): In this trilogy of decisions, the Court fundamentally overhauled administrative law in Canada by setting out a new framework to govern judicial reviews and statutory appeals. Under the new framework, statutory appeals from administrative tribunals will be treated in the same way as appeals from a court, and therefore attract a correctness standard of review on inextricable questions of law. A judicial review of a decision by an administrative tribunal, on the other hand, is presumed to attract a reasonableness standard of review (albeit one which involves a more robust reasonableness inquiry than was previously the case). The Court’s goal, in streamlining the standard of review analysis was to reduce the amount of litigation over the appropriate “standard of review”.

The Trilogy is undoubtedly one of the most important administrative law decisions in recent Canadian legal history. It will fundamentally alter the relationships that businesses, professions and individuals have with hundreds of different regulators and tribunals.

Read McCarthy Tétrault’s post on the Trilogy here.

Read the full decisions (Vavilov) here and (Bell/NFL) here.

2. Frank v. Canada (AG), 2019 SCC 1 (Ontario, civil [constitutional] by leave): The right to vote goes to the very heart of Canadian democracy. The Court took the opportunity in Frank to consider “one of the last restrictions on the right to vote in federal elections: residence.” The Majority of the Court (per Wagner C.J.) held that provisions of the Canada Elections Act, which deny citizens residing outside of Canada for more than five years the right to vote, were unconstitutional, and could not be saved under s. 1. of the Charter. The Majority rejected the rationale of the Ontario Court of Appeal that the “residency requirement fulfills the pressing and substantial objective of preserving the social contract”, holding that the Charter in fact implies no such restriction. In a world no longer operating under the same historical constructs of tying rights to land ownership and physical presence, the law must keep step with recognizing global change. The right to vote is tied to citizenship alone, and the Majority maintained “citizenship, not residence, defines our political community”.

Read the full decision here.

3. R v. Stillman (Federal, criminal/military by leave) 2019 SCC 40: Stillman settled conflicting rulings in Canada as to whether military members have a right to trial by jury for civilian criminal offences. Section 130 of the National Defence Act (“NDA”), effectively incorporates and transforms all criminal acts into military service offences, when committed by service members. Section 11(f) of the Charter enshrines the right to trial by jury but creates a “military exception” which excludes persons charged with military crimes tried in military courts. Stillman considered whether the NDA was unconstitutionally overbroad, and specifically whether the military exception should be narrowly circumscribed to only “offences under military law” specified in the NDA, or rather, applied to any offences with a “military nexus”.

The Majority (per Moldaver and Brown JJ) upheld s. 130 as constitutionally valid, determining military personnel do not have a right to civilian trial by jury if the crime is considered a service offence. The Majority held the power to enact s. 130 of the NDA was rooted in Parliament’s authority over the military and that the separate military justice system had been designed with the “unique needs” of the military in mind. Underpinning the Court’s justification for the separate system was the notion that the s. 11(f) military exception contemplates the availability of protections which are equivalent to the civilian jury system. On this point, the dissent disagreed (per Karakatsanis and Rowe JJ), finding a military panel was not equivalent to the civilian process, and holding there must be a connection between the military and the circumstances of the offence in order to deny military members the right to a jury trial.

Read the full decision here.

4. Fleming v. Ontario (Ontario, civil by leave) 2019 SCC 45: Under common law, the police can limit someone’s freedom if it is reasonably necessary to do so in order for the police to carry out their duties. In Fleming the Court unanimously confirmed (per Côté J.), this power does not include the ability to arrest someone who is acting lawfully in order to prevent others from breaching the peace (a criminal offence). The Court noted that preserving the peace, preventing crime, and protecting life and property are the main duties of police officers under the common law. Police can take actions to support these duties even if not explicitly set out in the Criminal Code, but only where such actions are reasonably necessary to carry out the officers’ duties. The Court articulated such actions would not be reasonably necessary when the person in question had not done (and was not about to do) anything wrong.

Read McCarthy Tétrault’s post on Fleming here.

Read the full decision here.

5. Kosoian v. Société de transport de Montréal, (Quebec, civil by leave) 2019 SCC 59: Following in the footsteps of Fleming, and the recent trend by the Court of affirming and upholding limits on police powers, the decision in Kosoian confirms Canadians are entitled to refuse to obey unlawful orders by the police. The case arose from the arrest and detention of Bela Kosoian after she refused to comply with a sign in the Montmorency subway station in Laval, Québec, which featured a pictogram of a figure holding the escalator handrail, accompanied by the statement: “Caution, hold the handrail”. A police officer in the station ordered Ms. Kosoian to hold the handrail, but she refused, believing she was not doing anything wrong. The officer arrested, detained, and ticketed Ms. Kosoian for (1) disobeying the pictogram and (2) “hindering a police officer in his duties”. The Court determined the pictogram was a warning, and did not create any prohibition or obligation such that it could serve as the basis for an offence. The officer therefore acted unlawfully when he arrested, detained and searched Ms. Kosoian because he did so on the basis of a non-existent offence. Kosoian serves as an important reminder that, “in a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law.”

Read the full decision here.

6. Bessette v. British Columbia (AG) (British Columbia, civil by leave) 2019 SCC 31: In Bessette, the Court addressed the language rights of an accused at trial for a provincial offence. At issue was the accused’s right to have a trial in either English or French under the B.C. Offence Act. While Canada’s Criminal Code provides the accused with the right to a trial in either language, the B.C. Offence Act only creates “quasi-crimes” and therefore it was unclear whether the accused had the same language rights as stipulated by the Criminal Code. The Court (per Côté and Martin JJ.) unanimously agreed that the accused had the right to a trial in either official language. In doing so, the Court analyzed how the provincial Offence Act and Canada’s Criminal Code operate in tandem, and the provincial act expressly allowed for the Criminal Code to be used to fill gaps in the legislation. The Court affirmed that the right to a trial in the official language of one’s choice, where such choice is provided by law, is a fundamental right and not merely a procedural issue.

Read the full decision here.

7. Keatley Surveying Ltd. v. Teranet Inc. (Ontario, civil by leave) 2019 SCC 43: Teranet was the Court’s first opportunity to consider the meaning and application of s. 12 of the Copyright Act. Originating from the 1911 UK Copyright Act, s. 12 of Canada’s Copyright Act transfers copyright to the Crown in certain circumstances. At issue in the case was the ownership of copyright in plans of survey that were registered and deposited through Ontario’s statutory land registration process. Teranet had been successful on summary judgment on the basis that plans of survey were published under the direction or control of the Crown, and, therefore, s. 12 was engaged.  In separate concurring reasons (Majority per Abella J.), the Court agreed. In holding s. 12 applied to plans of survey, the Court defined the scope of s. 12, and the meaning of “prepare or published under the direction or control of the Crown”. 

Read McCarthy Tétrault’s post on Teranet here.

Read the full decision here.

8. Orphan Well Association v. Grant Thornton Ltd. (Alberta, civil by leave) 2019 SCC 5: In Orphan Well, the Court addressed the critical interplay between federal insolvency law and provincial environmental regulations. At issue was whether Alberta’s environmental regulatory scheme could remain in force if its compliance would conflict with the Bankruptcy Insolvency Act (“BIA”). Specifically, the Court considered whether a receiver under the BIA was allowed to only take control of select assets to avoid any liabilities associated with environmental obligations (e.g. clean-up orders) under the provincial scheme, where those liabilities would conflict with priority obligations under the BIA, and whether such selection would attract personal liability of trustees associated with the disclaimed, assets pursuant to section 14.06 of the BIA. Prior to this decision, a trustee was entitled to sell economic wells and direct the proceeds to the bankrupt’s creditors and disclaim uneconomic wells without paying or accounting for the costs required to abandon and reclaim the wells. The Court (majority per Wagner C.J.C.) held that while trustees are not personally liable for abandonment and reclamation obligations, the estate would remain liable for such obligations.

The decision in Orphan Well impacts the relative financial priority between a company’s creditors and the cost to reclaim and abandon the wells. Any reclamation and abandonment liabilities must be dealt with before there can be a distribution to creditors, including secured creditors. In her dissent, Côté J., found the provincial and federal laws to be inconsistent, as the BIA allowed the trustee to walk away from environmental obligations of provincial orders that were provable claims, making the provincial law undermine the BIA’s purpose.

Read McCarthy Tétrault’s post on Orphan Well here.

Read the full decision here.

9. R. v. Jarvis, 2019 SCC 10 (Ontario, criminal by right): In the Court’s first opportunity to consider the elements of the crime of voyeurism, Jarvis has broad and important implications in determining the scope of individuals’ right to privacy. An element of the offence of voyeurism requires the person being watched to have had a “reasonable expectation of privacy”. In this circumstance, the issue dealt specifically with the context of students’ right to privacy in schools. More broadly, the decision recognized circumstances where individuals can reasonably expect privacy, even in public places, and is a step towards protecting identity and sexual integrity in the face of increasingly invasive technologies. Drawing from Charter jurisprudence, the Majority held the analysis must consider a broad range of factors and take a contextual approach, and thereby significantly advanced the analysis of an individual’s “reasonable expectation of privacy” in Canada.

Read McCarthy Tétrault’s post on Jarvis here.

Read the full decision here.

10. R. v. Myers, 2019 SCC 18 (British Columbia, criminal by leave): in this unanimous decision (per Wagner C.J.C.), the Court reaffirmed the fundamental principle of the presumption of innocence in Canada. The Court was asked in Myers to consider the approach to be applied by judges in determining whether continued pre-trial detention is warranted, and sought to correct “a widespread, and systemic divergence” in the approaches taken by Courts across Canada. In finding that “on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody”, the Court rejected the prevailing notion that an accused must establish unreasonable delay as a threshold condition for review. It is predominantly the most vulnerable and unrepresented who are subject to delays in the justice system, and with this in mind, the Court reinforced that the “culture of complacency” denounced by R. v Jordan must end. Myers is another important step towards achieving that goal.

Read the full decision here.

11. Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 (Alberta, civil by leave): In Chhina, the Court confirmed immigration detainees are entitled to apply for a writ of habeas corpus to challenge the legality of their detention. The decision clarified the previously uncertain question of whether the detention review scheme provided for in the Immigration and Refugee Protection Act, (“IRPA”) precluded habeas corpus relief under an exception (known as the Peiroo exception) which holds a court should decline jurisdiction where there is a “complete, comprehensive and expert statutory scheme” permitting review and rights equally as broad as habeus corpus. A majority of the Court (per Karakatsanis J.) determined the IRPA did not fall within the exception because it did not provide a review procedure “as broad and advantageous” as habeas corpus where the detainee challenged the length and conditions of their detention. Jurisdiction to hear and grant requests for a writ of habeas corpus in the immigration context remains with the provincial courts unlike all other immigration matters, which fall within the jurisdiction of the Federal Court.

Read the full decision here.

12. R. v. Barton (criminal by leave) 2019 SCC 33; R. v. Goldfinch (criminal as of right) 2019 SCC 38; and R. v. R.V. 2019 SCC 41 (criminal by leave): In this important trilogy dealing once again with the scope of how a complainant’s prior sexual activities may be used by an accused in support of a defence, the Court confirmed in no uncertain terms, “No means no, and only yes means yes: even in the context of an established relationship”. Past sexual history within or outside of the relationship cannot be used to reinforce the “twin-myths”, that a woman who has had prior sexual relations are more likely to have consented to the act in question; or that such women are less worthy of belief. In this trilogy the Court interpreted the scope and limit of s. 276 of the Criminal Code, which permits such evidence to be adduced in certain circumstances. The Court held that application to admit such evidence must be specific and precise as to the scope and purpose of its use, and the justification must establish that there is significant probative value that substantially outweighs its potentially prejudicial effect. As stated by the Majority in R. v. R(V), “[w]e live in a time where myths, stereotypes, and sexual violence against women – particularly Indigenous women and sex workers – are tragically common….put simply, we can – and must – do better.”

Read the full decisions (Barton) here, (Goldfinch) here, and (R.V.) here.

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