2015: The SCC year in review

19 minute read
15 December 2015


Carter v. Canada (Attorney General)
The SCC determined that the federal criminal laws are inapplicable to physician-assisted dying. The Court decided that s. 241(b) of the Criminal Code, which pertains to aiding suicide, and s. 14 of the Criminal Code, which pertains to consenting to the infliction of death, were void to the extent that they denied individuals the right to seek a physician’s assistance in dying and therefore violated the s. 7 right to life, liberty and security. In doing so, the SCC determined that it was properly open to the trial judge to reconsider the Rodriguez decision in light of new legal issues and fundamental changes in legislative and social facts and stated “stare decisis is not a straightjacket that condemns the law to stasis”. Following the Carter decision, gravely ill individuals will now have the right to seek an assisted death within the medical context of a physician-patient relationship.   2015 SCC 5

R. v. Smith
The accused challenged the constitutionality of the prohibition on possession of non-dried forms of medical marijuana on the basis that it limits the s. 7 Charter right to liberty of the person. He was charged with possession and possession for purpose of trafficking of cannabis contrary to ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act because he sold edible and topical cannabis products contrary to the Marihuana Medical Access Regulations, which limits lawful possession of medical marihuana to dried marihuana. The SCC found that the prohibition deprived medical marihuana users of their liberty by imposing a threat of imprisonment and by foreclosing reasonable medical choices to prescribed medical marihuana users. Further, the SCC stated “by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes security of the person”. As a result of the decision, the prohibition against non-dried forms of medical marihuana was declared of no force and effect.   2015 SCC 34

Tervita Corp. v. Canada (Commissioner of Competition)
A majority of the Court held that the relevant merger was likely to substantially prevent competition. The SCC found that the Tribunal and the Federal Court of Appeal incorrectly applied the efficiencies defence under section 96 of the Competition Act (“Act”), as the Commissioner of Competition (“Commissioner”) used the improper methodology to quantify the merger’s anti-competitive effects. The SCC upheld the Tribunal’s conclusion that the Tervita-Babkirk merger was likely to substantively prevent competition and clarified the two-part test for analyzing a “prevention” of competition as well as the application of the efficiencies defence under section 96. The SCC used a forward-looking analysis in determining whether the merger would prevent competition and clarified the methodology to determine whether efficiency gains will be “greater than, and will offset” the anti-competitive effect of the merger. The case of Tervita represents the first SCC merger jurisprudence in seventeen years. It also marks the very first time the SCC has directly explored the merger efficiency defence provisions of the Act.   2015 SCC 3

Saskatchewan Federation of Labour v. Saskatchewan
The SFL and the intervener unions challenged the constitutional validity of The Public Service Essential Services Act (“PSESA”) and The Trade Union Amendment Act (“TUA”). The PSESA limits the ability of certain public sector employees from participating in a strike action by designating their services as “essential”. In addition, the TUA increased the number of written employee support required for unionization. The appellants argued that the legislation infringed the freedom of association of employees guaranteed by section 2(d) of the Charter. The SCC found that the PSESA substantially interfered with the freedom of public sector employees to engage in meaningful strike action. The Court deemed that the provisions of the PSESA go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike. The PSESA transferred all power previously held by the unions to the employer. The majority of the Court expressed their understanding of the significance of strike action for collective bargaining, and adhered to the “substantial interference” test of Health Services and of Mounted Police. This decision provides greater protections for workers and prevents governments from expanding the definition of what is an “essential service” in order to reduce workers’ labour rights.  2015 SCC 4

Mounted Police Association of Ontario v. Canada (Attorney General) and Meredith v. Canada (Attorney General)
The Mounted Police Association of Ontario v. Canada (Attorney General) case is the freedom of association of members of the Royal Canadian Mounted Police (“RCMP”). Members of the RCMP challenged their exclusion from the PSLRA and argued that the exclusion infringed on their freedom of association. The SCC concluded that the impugned provision of the PSLRA is unconstitutional. In doing so, the Court overturned the Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 case, in which it previously held that the exclusion of RCMP members from collective bargaining under the PSLRA’s predecessor legislation did not infringe the freedom of association protected by s. 2 (d) of the Charter. In evaluating the sufficiency of the SRRP, the Court invoked two core principles — choice and independence —both of which were lacking in the RCMP’s labour-relations program. This case is very significant for clarifying the standard that must be met for showing that an impugned law interferes with collective bargaining rights. The case is also significant because it provides greater support for the rights and abilities of workers to unionize in Canada. 2015 SCC 1

In Meredith, the SCC upheld the government’s decision to unilaterally roll back scheduled wage increases for RCMP members. The government had passed the Expenditure Restraint Act (“ERA”), which codified the reduced wage increases for RCMP members, against the recommendation of the the RCMP Pay Council, and also set out identical wage increases for all public servants. The majority of the Court stated that while s. 2(d) of the Charter guarantees a right to a meaningful labour relations process, it does not guarantee a particular outcome. In rendering their decision, the majority of the Court found that the ERA did not substantially interfere with the process so as to infringe RCMP members’ freedom of association.  The limits imposed by the ERA were shared by all public servants, were consistent with the going rate reached in agreements concluded elsewhere in the core public administration and did not preclude consultation on other compensation-related issues, either in the past or the future. This decision is important in clarifying the limits of the fundamental freedom of association.  2015 SCC 2

Chevron Corp v. Yaiguaje
The Court clarified that the real and substantial connection test does not apply to a Canadian court taking jurisdiction over the recognition and enforcement of a foreign judgment. In doing so, the Court paved the way for further proceedings on the merits of an Ecuadorian judgment by a group of judgment creditors attempting to bring an international legal saga to the Canadian courts. The Court found that in Canadian private international law, there is a fundamental distinction between jurisdiction of a court to hear a claim at first instance, and the jurisdiction of a court to recognize and enforce a foreign judgment. The real and substantial connection test, and its associated “presumptive connecting factors,” previously developed by the Court in Club Resorts Ltd v Van Breda, 2012 SCC 17, apply to cases where Canadian courts are asked to take jurisdiction over a foreign defendant at first instance for the case to be tried on its merits. The real and substantial connection test must be met for a Canadian court to assume jurisdiction to try such a case.  However, when a Canadian court is asked to recognize and enforce a foreign judgment already obtained, the same considerations do not exist. Instead, it is “the act of service on the basis of a foreign judgment that grants an Ontario court jurisdiction over the defendant.”  Once service is effected, the Canadian court need only consider whether the foreign court that rendered judgment had a real and substantial connection with the litigants or the subject matter of the dispute. If it did, then the principle of international comity underlying the system of private international law requires that the Canadian court recognize and enforce the foreign judgment, subject to judicial discretion to decline to enforcement.    2015 SCC 42

Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)
The SCC clarified the test for judicial bias in the Yukon Francophone School Board decision. This case involves a language-rights dispute in which the Yukon’s school board sued the government in 2009 for reallocating funds away from minority language education. The SCC concluded that the threshold for a finding of a reasonable apprehension of bias was met in the circumstances. In addition to several disparaging and disrespectful remarks made by the trial judge, and directed at counsel for the Yukon, several incidents occurred which, when viewed in the circumstances of the entire trial, lead inexorably to this conclusion.  Although the trial judge’s conduct gave rise to a reasonable apprehension of bias, the SCC found that the Court of Appeal erred when it concluded that the trial judge’s current service as a governor of the francophone philanthropic association substantially contributed to a reasonable apprehension of bias.  2015 SCC 25

Loyola High School v. Quebec (Attorney General)
The SCC ruled that the Québec Minister of Education’s decision to disallow Loyola’s proposal to teach an Ethics, Religion and Culture (“ERC”) course from a Catholic perspective limited Loyola’s freedom of religion more than was necessary given the statutory objectives. This case concerned an application by Loyola High School (“Loyola”) for an exemption from the requirement to teach the ERC as per the Minister’s direction. Instead, Loyola, being a private Catholic institution, applied to teach ERC in an equivalent manner. A private school such as Loyola is entitled to provide an alternative but “equivalent” program if the Minister approves its content. The Minister denied Loyola’s request on the basis that teaching the ERC from a Catholic perspective was not in accordance with the intention of the ERC, therefore Loyola’s proposed program was not “equivalent”. The SCC had to “balance robust protection for the values underlying religious freedom with the values of a secular state” (para  43). The majority of the Court applied the proportionality analysis as established in Doré while the concurring judges applied a s. 1 test. Both arrived at the conclusion that the Minister’s decision to deny the exemption was a measure that undermined the character of Loyola as a religious institution and infringed its religious freedom.  2015 SCC 12

Mouvement laïque québécois v. Saguenay (City)
In a case that will likely have repercussions throughout Canada, the SCC held that the Mayor’s recitation of a Catholic prayer while making the sign of the cross before public council meetings was discriminatory and breached the State’s duty of neutrality. The Court upheld the Quebec Human Rights Tribunal’s finding of discrimination and ruled that the State’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief.  The Court emphasized “neutrality is required of institutions and the state, not individuals”. While the decision is based on the Québec Charter, the province’s legislation corresponds to the Canadian Charter of Rights and Freedoms’ s. 2(a) protecting freedom of religion. As a result, this will inevitably have a strong impact on municipal councils across Canada, and perhaps will apply to all three levels of government.  2015 SCC 16

R. v. Nur and R. v. Charles
The majority held that the mandatory minimum sentences for possessing prohibited or restricted firearms that are loaded or kept with readily accessible ammunition are unconstitutional in that they violated s. 12 of the Charter. At the heart of this decision is a fascinating debate about the appropriate constraints on the use of “reasonable hypotheticals” in determining the constitutionality of criminal legislation. Writing for the majority, the Chief Justice reasoned that the mandatory minimum sentence required by s 95(2)(a) was not cruel and unusual in most circumstances, including in the actual cases of Nur and Charles. However, the Chief Justice opined that applying the mandatory minimums in some reasonably foreseeable cases would violate s 12 of the Charter. When applying the reasonably foreseeable analysis, “the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law.” Because the mandatory minimums were grossly disproportionate in reasonable hypothetical examples, the majority concluded that the mandatory minimums constituted cruel and unusual punishment. Similarly, because the mandatory minimums applied to morally non-blameworthy conduct, they could not be justified under s 1 of the Charter2015 SCC 15

Henry v. British Columbia (Attorney General)
The SCC reviewed whether a person who was wrongfully convicted due to a breach of his constitutional rights can claim Charter damages based on the negligent but non-malicious conduct of the Crown Attorney. Mr. Henry was convicted in 1983 of 10 sexual offence counts, was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained incarcerated for almost 27 years until he was granted bail in 2009 and subsequently acquitted in October 2010. Mr. Henry then sought damages against the prosecutors for the injuries he alleges he suffered as a consequence of the wrongful conviction and incarceration. The Court declined to follow the existing case law with respect to the test for malicious prosecution and the necessity to find intent on the part of the prosecutor. Instead, the test that the majority proposed focuses on an intentional decision to withhold relevant information and actual or imputed knowledge of the consequences of the failure to disclose. This case is important in that, until now, the jurisprudence only permitted claims for malicious prosecution against a prosecutor who intentionally acted to subvert justice. The SCC allowed Mr. Henry to amend his pleadings to include a claim for Charter damages against the Crown for non-malicious acts and omissions.  2015 SCC 24

Canada (Attorney General) v. Federation of Law Societies of Canada
The SCC struck down record keeping and warrantless search provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (“Act”) as they apply to lawyers because they infringed s. 7 and 8 of the Charter. In order to reduce the risk that financial intermediaries may facilitate money laundering or terrorist financing, the Act required financial intermediaries, including barristers and solicitors, to collect, record and retain documents verifying the identity of those on whose behalf they pay or receive money. The Act also allowed an agency to search for and seize that material and imposed fines and penal consequences for non-compliance. The Federation of Law Societies commenced a constitutional challenge to the Act as it applied to the legal profession. The Court determined that the provisions that allowed for warrantless searches inherently risked breaching solicitor- client privilege and were therefore unconstitutional. With regards to the s. 8 violation, the Court recognized a new principle of fundamental justice: the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ cause.  The decision stands for the protection of solicitor-client privilege in Canada and establishes a new principle of fundamental justice that protects the lawyer’s commitment to the client’s cause.  2015 SCC 7

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