Supreme Court of Canada Archives

Supreme Court of Canada Addresses Jury Composition and Aboriginal Equality

June 30, 2015 By Linda McKay-Panos

A few months ago, this human rights column was about the Ontario Court of Appeal’s decision in R v Kokopenace, 2013 ONCA. The major issues in Kokopenace were the scope of the right to representativeness on the jury roll (a list of persons who are eligible to serve on a jury) under sections 11(d), 11(f) and/or 15 of the Canadian Charter of Rights and Freedoms (Charter), and whether Ontario violated that right.

The applicable sections of the Charter read as follows:

11. Any person charged with an offence has the right …

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;…

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

15.(1)Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Ontario Court of Appeal Decision

The majority of the Ontario Court of Appeal held that the quality of the effort of the provincial government to prepare a representative jury roll (where the race of eligible jury members properly represents First Nations peoples) was sorely lacking. For example, it had relied on the “sole efforts of an individual in a local court office”. The majority of the Ontario Court of Appeal held that both sections 11(d) and (f) of the Charter were violated, so it did not have to deal with the Charter section 15(1) issue, but the Court went on to determine that section 15 was not violated. The remedies granted included granting Kokopenace a new trial.

In dissent, Justice Rouleau agreed that, while there were issues present with regard to lack of Aboriginal representation, he believed that the Ontario government’s efforts to address the issues were reasonable under the circumstances. He also noted that the historical alienation of Aboriginal peoples in the justice system is a complex problem requiring systemic change that should be addressed by legislatures and not by courts.

Supreme Court Decision

The majority of the Supreme Court of Canada (SCC) recently overturned the majority of the Ontario Court of Appeal, and agreed with the dissenting justice. (R v Kokopenace, 2015 SCC 28). The majority of the SCC allowed Ontario’s appeal, set aside the order for a new trial and reinstated Kokopenace’s conviction.

Justices Moldaver, Rothstein, Wagner and Gascon held that while representativeness is an important feature of the jury system, its meaning is circumscribed. Representativeness does not involve targeting particular groups for inclusion on the jury and the state is not required to address historical and systemic wrongs against Aboriginal people by targeting them for inclusion. They held that a jury should be a “representative cross-section of our society, honestly and fairly chosen”, citing R v Sherratt, [1991] 1 SCR 509. Representativeness should be involved in the process used to compile the jury roll, but not in its final composition. The reviewing court should ask whether the state provided a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity is provided when the state makes reasonable efforts to:

(1) compile the jury roll using random selection from lists drawn from a broad cross-section of society, and

(2) deliver jury notices to those who have been randomly selected.

If these two steps are followed, the jury roll will be representative and the accused’s Charter right to a representative jury will be respected. The role of representativeness under Charter section 11(d) is limited to its effect on independence and impartiality. Impartiality is guaranteed through the way that the jury roll is compiled. However, the ultimate composition of the jury roll (e.g., it contains few individuals of the accused’s race or religion) is not in itself indicative of bias.

If the state deliberately excludes a particular subset of the population that is eligible for jury service, even if it is a very small group, it will violate the accused’s right to a representative jury under Charter section 11(f). On the other hand, if the state unintentionally excludes a group from the jury roll, then the court will look at the quality of the state’s efforts in compiling the jury roll.

If the state makes reasonable efforts, but part of the population is excluded because it declines to participate, the state will have met its obligation under the Charter. If the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant. If only a small segment of the population is excluded, there will remain a fair opportunity for participation by a broad cross-section of society.

Representativeness does not involve targeting particular groups for inclusion on the jury and the state is not required to address historical and systemic wrongs against Aboriginal people by targeting them for inclusion. There is no right to a jury roll of a particular composition; nor to one that proportionately represents all the different religions, races, cultures, or individual characteristics of eligible jurors. The approach that would be required to ascertain this information would do away with well-established principles, such as juror privacy and random selection.

In this case, the majority concluded that the province’s efforts to include Aboriginal on-reserve residents in the jury process were reasonable, and thus the province had met its obligation for representativeness.

In dissent, Justices McLachlin and Cromwell noted that representativeness is an integral part of the jury selection process. The focus of representativeness is on whether the jury roll from which jurors are selected is as broadly representative of the community as would be a group selected at random from the community. All justices seemed to agree that the ultimate racial, religious and other personal characteristics that make up the jury itself do not have to reflect demographics in Canada. Thus, random selection is the proxy for representativeness. The dissent agreed with the majority that the only way an accused could establish under-representation would be by looking at an inadequate list or some other significant departure from the random selection process.

The dissent went on to hold that in order to establish a Charter breach, the claimant must show that there has been a limitation of his or her guaranteed rights, and that the limitation can be attributed to state action. If the limitation of the right can be fairly attributed to the state, then the Charter is breached. The starting point is not the efforts of the state to comply, but rather whether the jury roll is representative. The key difference between the majority and dissenting judgments is their emphasis (or lack of emphasis) on the reasonableness of the efforts of the state to ensure a representative jury. In cases where the connection between the state’s action or inaction and the limitation of the right is evident, the “reasonable efforts” test as mentioned by the majority does not reflect the nature of the state’s obligation.

In this case, the jury roll was not representative because its composition was a substantial departure from what random selection from the eligible jurors in the district would produce. Aboriginal on-reserve residents were underrepresented on the jury roll. The lists and the delivery of the jury notices were the responsibility of the state and problems with these two factors contributed to the unrepresentative jury roll. The state had some capacity to address the poor return rate of notices and Aboriginal disengagement from the criminal justice system, but it had failed to make reasonable efforts to do so. The dissent held that there is a sufficient connection between state action and inaction and the lack of a representative jury roll to conclude that the state had breached the accused’s right to a representative jury roll.

All justices seemed to agree that the ultimate racial, religious and other personal characteristics that make up the jury itself do not have to reflect demographics in Canada. The key difference between the majority and dissenting judgments is their emphasis (or lack of emphasis) on the reasonableness of the efforts of the state to ensure a representative jury.

The Supreme Court of Canada: A History

June 30, 2015 By Hugo Vaillancourt

The leading role of the Supreme Court of Canada is no longer in dispute, but there was a time when it had to struggle to establish its authority.

The history of the Court began with section 101 of the Constitution Act, 1867, which allowed Parliament to establish a “General Court of Appeal for Canada”. …if the father of the Supreme Court of Canada, Prime Minister Alexander Mackenzie, were still alive today, he wouldn’t recognize his creation. However, the Supreme Court of Canada wasn’t established until eight years later, by the Mackenzie government, via the Supreme Court Act of 1875.

The purpose of the Court was to create a body that could receive appeals from both the provincial Courts of Appeal and federal courts, as well as resolve constitutional debates and answer legal questions of Parliament through the reference procedure.

The Early Years

In its first years, the Supreme Court of Canada had a bench of only six justices (seven in 1927, nine since 1949). Two of the six judges were trained in civil law and only three of them could speak French, creating some linguistic and legal tensions.

The early Court was not the ultimate court of appeal. That role still belonged to the Judicial Committee of the Privy Council in London, which had jurisdiction over the Supreme Court of Canada. In some cases, an appeal of a provincial appellate court judgment could bypass the Supreme Court entirely, and be brought directly to the Privy Council.

The Supreme Court Act also provided for the creation of the Exchequer Court of Canada (now the Federal Court) and it has to be noted that the same six justices sat on this Court. A Member of Parliament actually proposed in 1879 to abolish the Court, stating in the parliamentary chamber that “These gentlemen had very little to do for their money”! [2] This meant that members of the Supreme Court of Canada could hear appeals of their own judgments!

Also, litigants in civil law had an appeal as a right (i.e. judges couldn’t refuse to hear the appeal) to the Supreme Court of Canada if the amount involved was high enough. This had the effect of bringing some causes of no great importance to the attention of the Court. However, criminal cases went to the Supreme Court only when “there has been a dissent on a question of law in the provincial Court of Appeal or where the acquittal of an accused has been reversed by the Court of Appeal”, as noted by former Supreme Court Justice Frank Iacobucci. [1]

Given these unfavourable circumstances, the legal community raised questions on whether the existence of the Court was even necessary. A Member of Parliament actually proposed in 1879 to abolish the Court, stating in the parliamentary chamber that “These gentlemen had very little to do for their money”! [2]

Chief’s Years

The climate surrounding the enactment of the Statute of Westminster in 1931 by the British Parliament changed everything. This Act provided that British colonies, such as Canada, would from then on enjoy full political and legal independence. Whereas any attempt made before by the Parliament of Canada to abolish appeals to the Privy Council failed, this time it worked: in 1933 for criminal cases and in 1949 for civil matters. This meant that “the Supreme Court of Canada was finally supreme”, as former Chief Justice Antonio Lamer points out. [3]

This change added legitimacy and prestige to this institution. One may not speak too soon, however. In 1939, the infamous judgment Christie v. York Corporation, [1939] SCR 50 was rendered by the Court. The Seventies were also an important time for the Court. Parliament amended portions of the Supreme Court Act in order for the Court to take charge of its own judicial agenda in civil cases. It provided that a Black man who had been refused service by a Montreal tavern wasn’t entitled to compensation, given that the owner was “free to carry on his business in the manner that he conceives to be the best”.

The Court corrected its jurisprudence later on with the case of Roncarelli v. Duplessis, [1959] SCR 121, where the Prime Minister of Quebec, Maurice Duplessis, was ordered to pay damages for persecuting business owner Roncarelli because of his religion.

In 1968, new faces appeared in the landscape of the Court. They were recent law school graduates, who served their clerkship for one year at the Supreme Court of Canada under the responsibility of a Justice. There are now as many as twenty-seven clerks, or about three per judge.

The Seventies were also an important time for the Court. Parliament amended portions of the Supreme Court Act in order for the Court to take charge of its own judicial agenda in civil cases. Appeals as a right were replaced by grants of leave only for “public importance” cases.

New Charter, New Role for the Judiciary

The enactment of the Canadian Charter of Rights and Freedoms in 1982 was another highlight for the Supreme Court of Canada. The country moved from a parliamentary sovereignty toward a constitutional sovereignty. Proceedings of the Court have been available on television via the Canadian Public Affairs Channel (CPAC) since the 90s and more recently, online through the Court’s website. [4] That is to say that an Act of Parliament could be declared invalid by the judiciary if it infringed on human rights protected by the Charter. The Court had never had such a responsibility before. This led the Court, for example:

in R v. Big M Drug Mart, [1985] 1 SCR 295 to declare invalid a statute that made Sunday a mandatory holiday because it infringed some citizens’ religious freedom;
in R v. Morgentaler, [1988] 1 SCR 30, to rule against Canada’s abortion law; and
in U.S. v. Burns, [2001] 1 SCR 283 to rule that Canada cannot allow the extradition of an individual facing a possible death penalty without first ensuring that the death penalty will not be pursued.

Technological Tools Invade the Court

The Supreme Court of Canada has evolved immensely in term of technology over the years. For a very long time, it was customary for lawyers to present all documents in paper format to the Court. This is no longer the case. Now, from the appeal request to the judgment, everything is done electronically. In addition, it is no surprise that screens and computers are now commonplace. Proceedings of the Court have been available on television via the Canadian Public Affairs Channel (CPAC) since the 90s and more recently, online through the Court’s website. [4] A host of other information can be found there, such has the biographies of the Justices, the role of the Court and how to attend a guided tour.

Constitutionality of the Supreme Court Act’s Essence

The year 2014 was another milestone for the Supreme Court of Canada. In the case surrounding the controversial appointment of Justice Nadon from the Federal Court of Appeal (Reference re Supreme Court Act, ss. 5 and 6, [2014] SCC 21), the Supreme Court reviewed the constitutional status of most sections of the Supreme Court Act. Among other things, it declared that an abolition of the Court would require a unanimous consent amendment procedure, which would need the consent of Parliament and all the provinces.

To conclude, if the father of the Supreme Court of Canada, Prime Minister Alexander Mackenzie, were still alive today, he wouldn’t recognize his creation. But you would surely agree with me that this is not a bad thing!

Notes:

1. Frank Iacobucci, (2002) “The Supreme Court of Canada: Its History, Powers and Responsibilities” 4 J. App. Prac. & Process 29, at 31

2. House of Commons Debates, April 21, 1879, p. 1373

3. Antonio Lamer, “A Brief History of the Court”, in The Supreme Court of Canada and Its Justices 1875-2000 (Toronto: Dundurn Group, 2000) at 21

4. Louise Meagher, (2010) “Information Management and Interpretation and Translation Services at the Supreme Court of Canada”, 36 Common Law Bulletin 479, at 483

The Nadon Reference: A Unique Challenge

June 30, 2015 By John Edmond

The judgment of the Supreme Court of Canada in the “Nadon Reference,” more elegantly known as Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 SCR 433 is one of the more controversial decisions of the Court in the fairly long list of defeats for the federal government in recent years.

Can Justice Nadon’s appointment stand?

In 2013, the Honourable Marc Nadon was a supernumerary judge of the Federal Court of Appeal (a supernumerary judge of the Federal Courts has a reduced workload, having served 15 years and whose combined age and service total 80, or 10 years of service by age 70). He was nominated to the Supreme Court by Prime Minister Harper and sworn in October 7. His appointment had raised eyebrows. He was semi-retired. His specialities were transportation and maritime law, not frequent topics at the Supreme Court. The place he would occupy had been that of Justice Fish, a criminal law expert. He had been a member of the Quebec bar from 1974 until his appointment to the Federal Court in 1993. He was to fill one of three places on the Court reserved for Quebec by the Supreme Court Act. That same day, his appointment was challenged in the Federal Court as not meeting the criteria for such appointment by the Constitutional Rights Centre and constitutional lawyer Rocco Galati. This was overtaken by a reference by government, of which more later. Justice Nadon decided not to participate in any matters before the Court.

His appointment had raised eyebrows. He was semi-retired. His specialities were transportation and maritime law, not frequent topics at the Supreme Court. The place he would occupy had been that of Justice Fish, a criminal law expert. He was on “nobody’s short list,” said Robert Leckey, McGill Law School. But for Prime Minister Harper, he was the opposite of an “activist” judge: “the strong deference he showed to decisions taken by the Canadian government” “was likely one of the primary reasons” for his appointment, according to Bruce Ryder of Osgoode Hall Law School. His reputation wasn’t enhanced when his claim to have been “drafted by the Detroit Red Wings when I was 14” turned out to be dubious at best.

He had issued a strong – one might say scornful – dissent in a 2009 appeal of a court order requiring Canada to request repatriation of Omar Khadr from Guantanamo Bay (Canada (Prime Minister) v. Khadr, 2009 FCA 246) . Both the order appealed from and his colleagues met his wrath: “Ordering Canada to request the repatriation of Mr. Khadr constitutes, in my view, a direct interference into Canada’s conduct of its foreign affairs. … how Canada should conduct its foreign affairs … should be left to the judgment of those who have been entrusted by the democratic process to manage these matters on behalf of the Canadian people.” In contrast to the view of the majority, even if there were a Charter duty to protect Mr. Khadr, it had not been breached.

Section 5 of the Supreme Court Act provides,

Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

Section 6 then reads,

At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

Did this bar Justice Nadon, not a judge of a Quebec court, and no longer an advocate, from being one these three? Six of seven Supreme Court judges said it did. Justice Moldaver emphatically said it did not. Although much of the majority opinion is devoted to historical analysis in support of its conclusion, the disagreement comes down to statutory interpretation – the meaning of a phrase, namely “from among.” According to the majority, the s. 6 criterion “from among the advocates of that Province,” “requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing” (my emphasis; the ten-year requirement is from s. 5). Where s. 5 permits appointment of persons who are or have been superior court judges or barristers/advocates, s. 6 confines eligibility to those who are currently in one of those categories. They explain, “s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6.” Did this bar Justice Nadon, not a judge of a Quebec court, and no longer an advocate, from being one these three? Six of seven Supreme Court judges said it did. Justice Moldaver emphatically said it did not. Federal Court judges formerly members of the Quebec bar are therefore ineligible to take a Quebec place on the court: “The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.”

For Justice Moldaver, however, the words “from among” “convey no temporal meaning.” For him, the majority, in applying the ten-year rule, but rejecting “has been [an] advocate”, both in s. 5, are “cherry-picking.” (Arguably, the ten-year rule and the “has been [an] advocate” requirement in s. 5 can be distinguished: The former merely qualifies; the latter – assuming “from among” implies contemporaneity – contradicts.) He points out that, on the majority’s analysis, anyone who had 10 years at the Quebec bar in the past could rejoin for a day and thereby regain eligibility – a point not addressed by the majority: “I find it difficult to believe that the people of Quebec would somehow have more confidence in this candidate on Friday than they had on Thursday” (as scholars Michael Plaxton and Carissima Mathen point out, this can be taken two ways).

The majority found support in the history of the Court: “The eligibility requirements for appointments from Quebec are the result of the historic bargain that gave birth to the Court in 1875.” Restricting Quebec appointments from the Quebec bar to current members “advances [the] dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained.” They reviewed the extensive 1875 parliamentary debates on the creation of the Supreme Court, where Quebec M.P.’s voiced concern that judges not versed in the Civil Code would be deciding Quebec issues. The majority found support in the history of the Court: “The eligibility requirements for appointments from Quebec are the result of the historic bargain that gave birth to the Court in 1875.” Previous bills had reserved no seats on the court for Quebec jurists. The bill was amended to include a proportionate number of civil law-trained judges.

Responding to the argument that no purpose is served by excluding a nominee like Justice Nadon, with civil law training and ten years of past practice, they observed, “The question is not whether civilist members of the federal courts would make excellent judges of the Supreme Court of Canada, but whether they are eligible for appointment under s. 6.” Thus, it all comes down to the meaning of “from among.”

How can the Act be amended?

This case came to the court as a “reference,” that is directly from the federal cabinet without moving through trial and appellate courts. The Supreme Court Act permits the Governor in Council to refer certain “important questions of law or fact” to the court for an “opinion.” Answers to these questions are merely “advisory,” not binding, but in practice are followed. This reference contained two questions. Paraphrased, these asked:

(1) Can a person who was “at any time” a member of the Quebec bar of ten years’ standing be appointed to the Supreme Court? and

(2) Can the Act be amended to permit appointment of previous ten-year members of the bar?

Having answered the first question in the negative, the majority went on to consider constitutional concerns raised by the second. (Justice Moldaver found no need to answer the second question; with his answer to the first, the proposed amendments were redundant.)

Under the Constitution Act, 1982, amendments to “the composition of the Supreme Court of Canada” may be made only with unanimous agreement of Parliament and the provinces.

The majority noted that 1982 “confirmed its status as a constitutionally protected institution” – “confirmed,” not “established.” As the allocation of three places to Quebec is an element of the Court’s composition, the proposed change to s. 6, which provides for the Quebec places on the court, is subject to unanimity. (Justice Moldaver doubted that a change in qualifications of these judges was within “composition of the Supreme Court,” requiring unanimity.) Under the Constitution Act, 1982, amendments to “the composition of the Supreme Court of Canada” may be made only with unanimous agreement of Parliament and the provinces. This assures Quebec, the majority said, “that changes to its representation on the Court would not be effected without its consent.” Thus, the proposed amendment to s. 6 may be made only under the amending procedure of the Constitution, though the proposed amendment to s. 5, the general provision on composition, is “validly enacted” only because it is redundant, amending nothing.

Aftermath

The opinion was controversial in part because the Department of Justice, in advance of the Reference, had asked retired Supreme Court Justice Ian Binnie to consider whether Justice Nadon was eligible. The opinion was released. Mr. Binnie had said he was, in which he was supported by the dean of constitutional scholars, Peter Hogg, and retired Supreme Court Justice Louise Charron. His reading of the history of the Supreme Court Act led him to conclude, “Parliament’s concern has never been with current membership but with a minimum length of experience at the bar.”

Reaction to the court’s opinion was widespread. The University of Ottawa convened a conference. There was a flurry of commentary in the press. Andrew Coyne of the National Post called it “flaky”. Unconcerned why s. 5 contains “has been” but s. 6 doesn’t, he argues that if Parliament had meant, “’from among the current advocates’ [his emphasis] … you’d think it would have said so, not hidden it in the text for six future judges to discover.” The appointment of Justice Nadon, though, was “dubious”: “If ever there were an argument for a more robust process of legislative review of such appointments, this is it.”

Scholars are arrayed on both sides. In an article in Constitutional Forum published before the reference was heard, legal scholars Michael Plaxton and Carissima Mathen critiqued the Binnie opinion. This advisory opinion remains, of course, that of Canada’s highest Court, to be ignored by government at its peril. Foreshadowing the court majority, Plaxton and Mathen take as given that “from among” connotes contemporaneity, charging Binnie with not asking “why the Quebec requirement was imposed in the first place.”

Both Mr. Binnie and Professors Plaxton and Mathen cite as precedent for appointment of Federal Court judges that three Federal Court of Appeal judges, and Madame Louise Arbour, a chief international criminal law prosecutor, were appointed, although their Court is not mentioned in s. 5. Peter Russell, political scientist and constitutional scholar at the University of Toronto, taking on the view that Federal Court experience is always an asset, points out that a Federal Court judge who may not have dealt with the Quebec Civil Code for many years would “have the potential to overturn decisions by [Quebec Court of Appeal] jurists whose everyday life in the law is in Quebec.” Plaxton and Mathen give the more extreme example of someone with ten years at the Bar who “then pursued an altogether different line of work” for, say, 25 years. On the Binnie interpretation, they say, such a person would qualify under s. 5.

What to make of all this? The Court is divided; eminent scholars and former jurists are on opposite sides. Neither view is bullet-proof; while the expansive interpretation can lead to unwanted results, the stricter view would, as Binnie and others would argue, exclude desirable candidates. The majority opinion declined to address the obvious flaw in its conclusion, the one-day-at-the-Quebec-bar opt-in avenue for eligibility. This advisory opinion remains, of course, that of Canada’s highest Court, to be ignored by government at its peril. The only certain conclusion is that no statutory text can, in itself, ensure sound appointments, which leaves us in need, as Andrew Coyne asserts, of a more robust process of review.

Top Courts in the U.S. and Canada: A Comparison

June 30, 2015 By Peter Bowal and Jacqueline Bowal

Knowledge of Canada or the United States is the best way to gain insight into the other North American country. Nations can be understood only in comparative perspective. And the more similar the units being compared, the more possible it should be to isolate the factors responsible for differences between them. Looking intensively at Canada and the United States sheds lights on both of them. – Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada

The judges of the Supreme Courts of Canada and the United States are frequently in the news and national policy discussions. Yet, these nine individuals, unlike prominent politicians, are not well known by the people they serve in each country. While the courthouses in which they toil are magnets for tourists, most people would be hard pressed to name a Supreme Court judge, much less recognize one if they were standing next to one. The story is told of a family visiting the U.S. Supreme Court in Washington, D.C. stopping and asking someone to take their picture. It turns out that while there is gender and ethnic diversity, the justices of the U.S. Supreme Court emerge from a virtually identical educational and geographical background. After the photo had been taken on the sprawling plaza with the court building in the background, they politely parted without the family having any idea their casual photographer was Justice Anthony Kennedy.

These top judges are known more for what they do through their decisions than who they are. However, that is changing as they are engaged in rejecting and enacting ultimate social and legal policy in their countries. The U.S. Supreme Court has recently delivered rulings on the constitutionality of same-sex marriage and funding for the new national Affordable Care Act (Obamacare).

We are increasingly asking about these judges – unelected, appointed and on the bench for a long time – who they are as human beings. …while Canada and the United States share generally similar histories, legal systems and social composition, their respective Supreme Courts reflect their cultural and political differences. It turns out that while there is gender and ethnic diversity, the justices of the U.S. Supreme Court emerge from a virtually identical educational and geographical background. In a recent article in The Atlantic magazine, Akhil Reed Amar panned the peas-in-a-pod sameness of their professional backgrounds. All nine graduated from elite colleges and law schools. All but one (Stanford) were from the east coast and all went to law school at Harvard or Yale. Almost all were former members of U.S. courts of appeal. Only one had trial experience. None were in politics and only one held a high position in government. Eight grew up a large metropolitan area, including four who were raised around New York City.

The judges on the Supreme Court of Canada have a slightly broader spectrum of personal background, much of that owing to traditions and the structural framework of how they are appointed. Canada has no experience with the election of judges, and only recently experimented with public hearings for appointments to the Supreme Court. On the other hand, while Canada and the United States share generally similar histories, legal systems and social composition, their respective Supreme Courts reflect their cultural and political differences. For example, it is inconceivable that the U.S. Supreme Court would rule a judge who had gone through the regular appointment channels was still ineligible to sit as a judge, as the Supreme Court of Canada recently decided: Reference re Supreme Court Act, ss. 5 and 6 [2014] 1 SCR 433.

This article, in the form of a table (PDF) for easy comparison, displays the contrasts between the Supreme Courts of the United States and Canada.

“I, ………., do solemnly and sincerely promise and swear that I will duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as Chief Justice (or as one of the judges) of the Supreme Court of Canada. So help me God.” – Canada Supreme Court Judges’ Oath (SCA, s. 10)

Summary

All superior court judges (about half of all judges) in Canada are federally appointed. The other judges are appointed, by provincial governments. Canada has no experience with the election of judges, and only recently experimented with public hearings for appointments to the Supreme Court. This model has served Canada well. Since the adoption in 1982 of the Charter of Rights and Freedoms, and political concerns about judicial activism, calls have been made for more transparency and input into these appointments beyond the constitutional minimum. Since some states appoint their judges, and other states elect them, the appointment versus election policy choice is best debated at the state level. Current federal voluntary, procedural reforms call for consultation, input, the creation of a short list and some public questioning of the nominated candidates. Given the relatively recent impact of judicial review, Canada is moving toward transparency, if not politicization and Americanization of this process.

In the U.S., by far most judges are selected by the individual state, whether by election or executive appointment within the state. There are about 35,000 state judges compared to only 1000 federal judges). Since some states appoint their judges, and other states elect them, the appointment versus election policy choice is best debated at the state level.

The U.S. Supreme Court justice selection process was deliberately inserted into the political inter-branch process when the U.S. Constitution was drafted. Did the framers intend the Senate’s “advice and consent’ role to serve as a veto? As Canada moves toward more public scrutiny of Supreme Court appointments, the process will invariably become more political.

BenchPress 39-5: Private Use Doesn’t Apply

June 23, 2015 By Teresa Mitchell

Two Edmonton men were acquitted of offences of making and possessing child pornography because the trial judge accepted that the material, involving two runaway teenage girls, was made for the men’s private use. The Supreme Court of Canada ordered new trials for the men, ruling that s. 153 of the Criminal Code, which makes sexual exploitation of young people a crime, should have been examined. Judges must look at whether the sexual activity occurred in the context of an exploitative relationship. If so, the sexual activity is not lawful and the private use exception does not apply. It found that the trial judge looked at the voluntariness of the activity instead of the relationship between the parties. In addition, the trial judge should have considered a whole range of factors such as age, the difference in age between the girls and the accused, the impact of the girls’ addiction, their need for shelter, and their past and ongoing experiences with homelessness and prostitution. The Court concluded: “By failing to consider whether the underlying relationship between the girls and the accused was exploitative, the trial judge erred in law. This error had a material bearing on the accused’s acquittals and requires a new trial.”

R. v. Barabash, 2015 SCC 29 (CanLII)

BenchPress 39-5: A Jury of Your Peers?

May 27, 2015 By Teresa Mitchell

An Ontario Aboriginal man has had his conviction for manslaughter re-instated by the Supreme Court of Canada. Clifford Kokopenace was originally convicted in 2008. However, the Ontario Court of Appeal overturned his conviction because the jury at his trial did not have any Aboriginal members. It ruled that this omission violated his Charter guarantee to a fair trial. However, the majority of judges on the Supreme Court decided that Mr. Kokopenace’s Charter rights were not affected. Justice Moldaver wrote: “There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Requiring a jury roll to proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurors would create a number of insurmountable problems.” The majority noted that, while juries must be representative, this means a representative cross-section of society, honestly and fairly chosen. What is important is the process used to compile a jury, not its ultimate composition. In this case, the Court found that the province’s efforts to include Aboriginal on-reserve residents in the jury process were reasonable.

Two judges dissented. Justice Cromwell wrote: “An Aboriginal man on trial for murder was forced to select a jury from a roll which excluded a significant part of the community on the basis of race – his race. This is in my view an affront to the administration of justice and undermines public confidence in the fairness of the criminal process”

R. v. Kokopenace, 2015 SCC 28 (CanLII)

Essential Services and the Right to Strike

May 7, 2015 By Matt Gordon

On January 30, 2015, the Supreme Court of Canada decided Saskatchewan Federation of Labour v Saskatchewan (“SFL”). In a 5-2 decision, the Court determined that the Public Service Essential Services Act (“PSESA”), in restricting certain public sector workers’ rights to strike, violated freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”). Another piece of impugned legislation, the Trade Union Amendment Act (“TUAA”), which focuses on the union certification process and employer-employee communications, was found to be in accordance with the Charter.

The Supreme Court grappled with a central question that occupied most of the decision, both for the majority and dissent: does restriction on the right to strike violate s 2(d) of the Charter, and why? This past January, the majority of the Supreme Court came through with an emphatic decision that the workers’ right to strike is a fundamental Canadian value. This is a tough decision because it engages two contrasting Canadian values: the necessity for Canadians to have essential services like police officers and firefighters available at a moment’s notice, and the importance of employee voice in the workplace.

The extent of s 2(d) on labour relations has a tumultuous recent history, having been considered twice earlier by the Supreme Court since 2007. The Supreme Court’s decision in SFL demonstrates the difficulty associated with the application of Canada’s highest law to conditions of employment. There are still questions left unanswered which will likely be the impetus for upcoming litigation.

Background

SFL dates back to 2007, when Saskatchewan’s provincial government passed these two statutes. Both came into force on May 14, 2008. The Saskatchewan Federation of Labour and other unions challenged the constitutionality of PSESA and TUAA on the basis that they interfered with their right to freedom of association under s 2(d) of the Charter. The right to collective bargaining rooted in good faith negotiation was confirmed in 2007 in the BC Health Services case. By the time SFL went to trial in 2012, the Supreme Court had decided Ontario (Attorney General) v Fraser (“Fraser”). In Fraser, the Court clarified the rights accorded in BC Health Services through the determination that workers do not have the right to a particular type of collective bargaining or substantive outcome but still have the right to a good faith bargaining process of some kind.

The Saskatchewan Court of Queen’s Bench allowed the unions’ action with respect to PSESA but not with respect to TUAA. The Saskatchewan Court of Appeal, in a 3-0 decision, allowed the government’s appeal but not the union’s, declaring both PSESA and TUAA constitutional. At no point did any court consider TUAA’s certification process modification or newfound ability for employers to communicate “facts or opinions” to unionized workers to run afoul of freedom of association.

The SCC’s Decision in SFL

Justice Abella, writing for the majority, identified four key areas in which PSESA was either vague, overbroad, or invalid procedurally: The majority’s arguments are best summarized in this one sentence: “The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right.

an unclear definition of “essential services”, determined unilaterally by the government;
an overly broad definition of “public employer”, encapsulating any of the various Government of Saskatchewan agencies;
no recourse for the Saskatchewan Labour Relations Board to review these definitions; and
no explicitly stated alternative to the prohibited right to strike, such as a dispute resolution mechanism like arbitration.

She also delivered more philosophical reasons for the Court’s ultimate decision to enshrine the right to strike in the Charter:

It is consistent with an overarching trend in the courts leaning more toward workers’ rights ever since Reference Re Alberta Public Sector Employee Relations Act (“Re PSERA”), which SFL mostly overturned;
It is consistent with moderation of the employer-employee imbalance in Canadian labour relations; and
It is consistent with Canada’s international obligations, as well as the laws and constitutions of like-minded industrialized countries worldwide.

The majority’s arguments are best summarized in this one sentence: “The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.”

The dissent, written by Justices Rothstein and Wagner, affirmed Re PSERA while putting SFL into a more procedural context. Their crucial points were that enshrining the right to strike in the Charter:

ignores the Supreme Court’s statement in RWDSU v Pepsi-Cola Beverages Canada (West) Ltd that courts should leave “delicate or political” labour relations questions to the legislatures;
extends the wording of s 2(d) of the Charter far past its limited “freedom of association”, especially in light of the absence of a codified right to strike in that section;
departs from the BC Health Services and Fraser decisions insofar as adds striking to the collective bargaining process where it was not there before; and
places too high a value on unclear international and irrelevant comparative law in shaping Canadian law.

These two intractably opposed positions are grounded in the constant struggle between employer and employee, judiciary and legislature, and precedent and evolving law.

Although SFL raises many questions in the areas of labour relations, constitutional and international law, as well as statutory interpretation and public policy, one of the labour relations questions looms large: Did the Supreme Court have to enshrine the right to strike in the Charter in order to acknowledge workers’ rights in Canadian society?

Arguably, the majority could have simply created a “strike or explain” doctrine in which any statute removing the right to strike for essential services employees must comply with certain criteria already set out in the majority’s decision. These two intractably opposed positions are grounded in the constant struggle between employer and employee, judiciary and legislature, and precedent and evolving law. Rather than say that such a statute presumptively violates s 2(d) of the Charter, placing the burden entirely on the government, the Court could have set out that such a statute without a dispute resolution mechanism or labour board oversight violates s 2(d). PSESA still would have been struck down, accomplishing the result of the day, but the decision would not overtly question the constitutionality of other, more balanced essential services statutes. An example is Ontario’s Crown Employees Collective Bargaining Act, 1993, which contains a limited right to strike, detailed essential services definitions and a labour relations board section, but is not used as a comparison by either the majority or the dissent in SFL. Put simply, rather than guarantee the presumptive right to strike, the majority could simply have guaranteed the availability of some form of dispute resolution. This is one of many possible alternate routes to upholding Charter values.

The majority’s view, however, was that the right to strike holds a special place in labour relations. In reaching this conclusion, the Court cited Mounted Police Association of Ontario v Canada (Attorney General) in discussing statutes that “disrupt the balance between employees and employer”. To the majority in SFL, in summary, “The right to strike is essential to realizing these [Charter] values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse.” It is solely the removal of the ability to withdraw services that factors into their s 2(d) analysis.

What Now?

This past January, the majority of the Supreme Court came through with an emphatic decision that the workers’ right to strike is a fundamental Canadian value. Beyond labelling PSESA an unclear statute that does not properly explain how it plans to honour Charter rights, the majority also discussed Canada’s evolving domestic and international obligations. The dissent was wary of expanding a bedrock document like the Charter past its original wording, and was also concerned with moving too much power from the legislatures to the judiciary. The swath of recent case law on the subject indicates that SFL may not be the last time the Supreme Court hears this sort of issue.

There will doubtless be future litigation over the meaning of SFL and any legislative exceptions to it. It may be dangerous to have, for example, healthcare workers engaging in large-scale strike activity, as was the case in Saskatchewan in 2001. The balance between essential services and the newly minted Charter right to strike presents more questions that can be answered in a single decision.

Bench Press 39-3: New Duty of Honest Performance

February 26, 2015 By Teresa Mitchell

The Supreme Court of Canada issued an interesting decision recently in the area of contract law. It began by stating: “Canadian common law in relation to good faith performance of contracts is piecemeal, unsettled and unclear.” Clearly, this was an unsatisfactory state of affairs that the Court was determined to remedy. It outlined two steps:

Acknowledging that good faith in performing contracts is an overarching principle; and
Recognizing that there is a common law duty to act honestly in performing contracts.

The Court fleshed out what this means. “This new duty of honest performance is a general doctrine of contract law that imposes as a contractual duty a minimum standard of honesty in contractual performance.” As an example the Court wrote: “…parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract.”

Previously, the common law recognized a duty of honest performance in employment, franchise and insurance relationships. Now, honest performance is expected in all areas of contract law.

Bhasin v. Hrynew, 2014 SCC 71 (CanLII)

Bench Press 39-3: Seven Seconds: $27 Million

February 18, 2015 By Teresa Mitchell

A Quebec man had his hopes and his fortune dashed when the Supreme Court of Canada decided recently to dismiss his application for leave to appeal a decision of the Quebec Court of Appeal. Joel Ifergan scooted into a convenience store just before 9 pm in 2008 and bought two lottery tickets for that night’s lottery draw. First ticket: no problem. The second, and winning ticket? It was issued at seven seconds after 9 pm. That ticket indicated on its face that it was eligible for the next week’s draw. He sued Loto Quebec, claiming that a processing lag was responsible for the winning ticket being issued out of time, but lost. To add insult to injury, the Supreme Court of Canada dismissed his leave application with costs.

Ifergan v. Société des Loteries du Québec (case summary)

Access to Justice in a post-SWUAV Courtroom

January 5, 2015 By Sarah Burton

In September 2012, the Supreme Court of Canada significantly changed the law on public interest standing. It did so under the banner of advancing access to justice. After being released, Canada (AG) v Downtown Eastside Sex Workers United Against Violence, 2012 SCC 45 [SWUAV] received praise for making Charter litigation reachable to vulnerable groups who could not otherwise access the justice system. SWUAV asked if a community group … had standing to challenge the prostitution provisions in the Criminal Code. Justice Cromwell … agreed with the Court of Appeal that public interest standing should be granted. After providing a brief refresher on the SWUAV decision, this article examines whether the decision has lived up to its promise. Subsequent case law reveals that, while SWUAV’s full potential has yet to be realized, its early development is a reason for optimism among access to justice advocates.

The SWUAV Decision

SWUAV asked if a community group focused on protecting sex workers had standing to challenge the prostitution provisions in the Criminal Code. Justice Cromwell, speaking for the unanimous Supreme Court, agreed with the Court of Appeal that public interest standing should be granted. In doing so, however, he inserted a critical change into the last stage of the traditional three-part test. While this change may seem trivial, make no mistake — it is powerful. While the classic test asked if “there is no other reasonable and effective manner” to bring the case to court, SWUAV modified the question to ask if public interest standing “is a reasonable and effective manner” to bring the issue to court. In making this determination, a number of contextualized, non-determinative factors can be considered (SWUAV at para 51).

While this change may seem trivial, make no mistake — it is powerful. This seemingly innocuous modification removed the most significant hurdle faced by public interest litigants since the 1992 decision in Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236 [Canadian Council]. Prior to SWUAV, the very idea that a potential — even hypothetical — private litigant existed could (and often did) defeat otherwise compelling public interest suits from proceeding. The circumstances and restrictions faced by these hypothetical private litigants were not considered in any consistent manner.

The rationale for the Court’s change of heart is equally compelling. Justice Cromwell, a known advocate on the topic, expressed public interest standing as an access to justice issue (SWUAV at para 51):

Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected.

This statement acknowledges that disadvantaged and marginalized groups, no matter how directly their rights are affected, often cannot participate in the justice system without mechanisms like public interest standing. The rationale for the Court’s change of heart is equally compelling. Justice Cromwell, a known advocate on the topic, expressed public interest standing as an access to justice issue It thus removes the blanket justification that public interest standing should always take a backseat when private litigants exist.

Civil justice advocates have praised SWUAV for changing the conversation on public interest litigation. Instead of creating a gate to keep out “mere busybodies” (a concern accused of being overblown), the test for public interest standing is now a conversation about the most effective way to adjudicate issues engaging the public interest. For example, see Dana Phillips, “Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v Downtown Eastside Sex Workers United Against Violence”, 2013 Constitutional Forum 22(2). Proceeding in this fashion is not only more efficient, it also eases the significant burden placed on Canada’s most vulnerable and marginalized people to bring forward cases in their personal capacities.

In the two years since SWUAV was released, has it actually done anything that can be viewed as increasing access to justice? The following section considers the case law developed in the wake of SWUAV.

Post – SWUAV Case Law: Canadian Doctors for Refugee Care v Canada (Attorney General)

Any fear that SWUAV would create a flood of busybodies advancing improper suits has not materialized. At the time of writing this article, SWUAV had been judicially considered 45 times. Public interest standing was granted on 12 of occasions and rejected 19 times (the remaining 14 cases were decided on other grounds, or dealt with different issues).

Some of these 12 successful rulings provide stirring insight into how SWUAV can make the justice system accessible to Canada’s marginalized populations. Any fear that SWUAV would create a flood of busybodies advancing improper suits has not materialized. One particularly pertinent example is Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 [Canadian Doctors]. This decision ultimately declared that government cuts to refugee claimant health benefits were unconstitutional. As a preliminary issue, the government argued that three public interest groups should not be granted standing, because refugee claimants could advance their claims individually (Canadian Doctors at para 329). Notably, the federal government succeeded on nearly identical argument in 1992’s Canadian Council decision, which also dealt with court challenges by refugee claimants (Canadian Council at para 40).

In a clear departure from Canadian Council, the Court was not persuaded by the government’s reasoning. Adopting SWUAV’s contextual and practical analysis, the judge focused on the realistic, lived experience of refugee claimants living in Canada with serious health concerns. By creating inroads for marginalized groups to challenge initiatives of broad public interest, the Supreme Court has reduced the gap between the rights that people possess in theory and those they enjoy in reality. Despite the fact that these refugee claimants had standing as of right, this population would be particularly reluctant to challenge the very government from whom they were seeking protection. In addition, these refugee claimants frequently lacked the financial resources or health stamina to launch constitutional litigation. Lastly, the Court remarked that it would be inefficient to require many individual claims where the constitutionality could be addressed in one coherent and comprehensive lawsuit (Canadian Doctors at paras 338 – 344).

While Canadian Doctors is perhaps the most demonstrative decision of SWUAV’s impact, it is not the only reason for optimism. In Manitoba Métis Federation Inc. v Canada (Attorney General), 2013 SCC 14, the Supreme Court of Canada granted public interest standing to a group representing Métis rights, despite the fact that private interest litigants were involved in the suit as well. Drawing on SWUAV’s considerations, the Supreme Court held that the group’s involvement was an effective and reasonable way to represent the collective interests at issue in the suit. A similar result was reached in Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2012 BCCA 422, where the Court of Appeal held that the involvement of a genuinely interested public interest litigant would actually increase efficiency in the courtroom.

This brief sampling of post-SWUAV case law is not comprehensive, and it does not seek to present the court as the champion of access to justice. Indeed, courts have received ample criticism for not doing as much as they could. However, while no single program or initiative will solve the multi-faceted and complex barriers to our justice system, the expansion of public interest standing is one area where the Supreme Court has seemingly gotten it right. By creating inroads for marginalized groups to challenge initiatives of broad public interest, the Supreme Court has reduced the gap between the rights that people possess in theory and those they enjoy in reality.