2016: The SCC year in review

05 January 2017

This article summarizes the 10 most important Supreme Court of Canada decisions from 2016, as selected by Gowling WLG's Supreme Court of Canada Services Group.

1. R. v. Jordan, 2016 SCC 27

In this judgment, a divided Supreme Court addressed the question of whether the existing framework for dealing with section 11(b) right to trial within a reasonable time provided in R v Morin should be amended or replaced. The appellant was charged with several drug offences in December 2008. His trial concluded 49.5 months (over four years) later.

A majority of the Court, led by Justices Karakatsanis, Moldaver and Brown, abandoned the Morin framework and replaced it with a new analysis. They identified four doctrinal problems with Morin, replacing it with the following structure:

  • There is a ceiling beyond which delay becomes presumptively unreasonable. This ceiling is 18 months for cases tried in provincial court and 30 months for those tried in superior court (or those tried in provincial court following a preliminary inquiry). In calculating the delay, delay attributable to the defence's waiver or conduct must be subtracted from the total time between the laying of the charge and the anticipated or actual end of trial.
  • Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.
  • Below the relevant presumptive ceiling, the defence bears the burden of showing that the delay was unreasonable by establishing two conditions: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. If these conditions are not established, the section 11(b) claim fails.
  • For cases currently in the system, the framework must be applied flexibly and contextually with due sensitivity to the parties' reliance on the previous state of the law.

Applying this structure, the majority found that Mr. Jordan's section 11(b) rights were violated. Subtracting delay attributable to the defence, the total relevant delay was 44 months, well beyond the presumptive ceiling of 30 months. The majority noted that there were no discrete exceptional events on the record, nor was the nature of the trial particularly complex so as to justify the delay.

The remainder of the Court, concurring in the result on the particular facts of Mr. Jordan's case, strongly objected to jettisoning the Morin framework and, instead, proposed a reorientation of the existing doctrine. Justice Cromwell, writing for Justices McLachlin, Wagner, Gascon, provided a series of objections to the majority's new structure. Justice Cromwell noted (i) that the majority's proposed ceilings are inconsistent with the section 11 jurisprudence that reasonableness cannot be captured by a number; (ii) that the creation of such ceilings is a legislative, not a judicial task; (iii) that there was no support in the record for the ceilings adopted, nor was there any argument about the potential impact of imposing them; and (iv) the simplicity promised by the new framework is likely illusory and it simply shifts the complexity of the analysis to a new analytical location.

In a companion case of R. v. Williamson, 2016 SCC 28, the Court split on whether the delay in Mr. Williamson's case was unreasonable. The majority found the delay was unreasonable, that it was not justified and they issued a stay of proceedings. In the minority's view, the delay was not so long as to be baldly unreasonable, and as a result, they were entitled to consider whether societal interests in having the case decided on its merits outweighed the accused's interests in a speedy trial.

2. Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12

The plaintiffs in this case sought three declarations: (1) that Métis and non-status Indians are "Indians" under section 91(24); (2) that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and (3) that Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples. The trial judge granted the first declaration but declined the second and third. The Federal Court of Appeal upheld the first declaration; however, it narrowed its scope to exclude non-status Indians and include only those Métis who satisfied the three criteria from R v Powley, [2003] 2 SCR 207. The plaintiff's appealed this decision, seeking to restore the first declaration as granted by the trial judge and grant the second and third declaration. The Crown cross-appealed, arguing against all of the declarations.

The SCC allowed the appeal in part and dismissed the cross-appeal. It held that the trial judge's decision regarding the first declaration should be restored and that the Federal Court of Appeal erred when it narrowed the scope of the declaration. Applying the test set out in Canada (Prime Minister) v Khadr [2010] 1 SCR 44, the Court found that the first declaration had enormous practical utility. It argued that there was an undeniable benefit to ending the jurisdictional tug-of-war between the federal and provincial governments over jurisdiction for Métis and non-status Indians. The historical, philosophical, and linguistic contexts establish that "Indians" in section 91(24) includes all Aboriginal peoples. With regard to the second and third declaration, the SCC refused to grant them as they were merely restating settled law and, therefore, lacked practical utility.

3. R v. Lloyd, 2016 SCC 13

In Lloyd, the SCC was asked to decide the constitutionality of section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act which established a one-year mandatory minimum sentence for trafficking or possession for the purposes of trafficking, where the offender had been convicted of any drug offence within the previous 10 years. The provincial court judge found that the mandatory minimum violated section 12 of the Charter because it would impose cruel and unusual punishment in a variety of different situations. He also found that the violation could not be justified under section 1.

Addressing the first issue, the SCC confirmed that the provincial court judge did, in fact, have the power to decide the constitutionality of the mandatory minimum sentence. While provincial court judges do not have the power to make formal declarations that a law is of no force or effect under section 52(1) of the Constitution Act, 1982, they do have the power to determine the constitutionality of mandatory minimum provisions when the issue arises in a case they are hearing. Since Mr. Lloyd had challenged the mandatory minimum sentence, the provincial court judge was entitled to consider the constitutionality of that provision.

Reiterating principles enunciated in R v Nur, the Chief Justice, writing for the majority, stated that a law will violate section 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others. Lloyd relied on the latter. Applying the two-part test set out in Nur, the majority provided three reasons why the provision was constitutionally vulnerable: (1) it applied to any amount of Schedule I substances; (2) the definition of "traffic" in the CDSA captures a very broad range of conduct; and (3) the sentence applied whenever there was a prior conviction for any "designated substance offence" within the previous 10 years, meaning that it could capture any of the offences in sections 4 to 10 of the CDSA.

Further, the majority created two hypothetical accused to illustrate the broad reach of the provision. The first was a professional drug dealer who is in possession of a large amount of Schedule I substances and who has been convicted numerous times for similar offences. The second person was the addict who is charged for sharing a small amount of a Schedule I drug with a friend and finds herself sentenced to a year in prison because of a single conviction for sharing marijuana in a social occasion nine years prior. While the circumstances of these individuals are vastly different, they would both be caught by this provision.

Lastly, the SCC agreed with the provincial court judge that the violation of section 12 could not be justified under section 1 of the Charter. While Parliament's objective to combat the distribution of illicit drugs was clearly an important one, the law did not minimally impair the section 12 right.

The minority disagreed that a mandatory minimum sentence of one year violated section 12. They were of the view that the impugned provision would not result in grossly disproportionate sentences for any of the hypothetical offenders used by the Chief Justice to justify her finding that s. 12 is infringed. In their view, if the well-established s. 12 jurisprudence is applied, the challenged one-year mandatory minimum is constitutional.

4. Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23

In 2007, the federal Minister of Industry, acting pursuant to his powers under the Radiocommunications Act, authorized the respondent Rogers to build a new radiocommunications structure on land owned by the City of Châteauguay. The City, citing concerns about zoning by-laws, aesthetics, and the health and well-being of those living near the property, adopted a municipal resolution authorizing the service of a "notice of establishment of a reserve" that prohibited construction on the property for two years. The notice was renewed shortly before it was due to lapse. Rogers contested the notice on constitutional grounds, arguing that it was ultra vires the powers of the municipality, and, in the alternative, that the notice was inapplicable to Rogers by virtue of interjurisdictional immunity or federal paramountcy.

The Superior Court found that the notice was issued in bad faith and annulled it without considering the constitutional questions. On appeal, the Quebec Court of Appeal found that the Superior Court erred in finding bad faith, and further found that the notice was intra vires Châteauguay's powers and that neither interjurisdictional immunity nor paramountcy applied. It therefore allowed Rogers' appeal. Châteauguay appealed further to the SCC. All nine of the Supreme Court Justices found Châteauguay's notice of a reserve unconstitutional.

Justices Coté and Wagner, writing for themselves and five others, found that the notice ultra vires. In their view, the evidence clearly established that the pith and substance of the notice was not the well-being of the residents but, rather, the choice of the location of radiocommunication infrastructure. As such, it clearly usurped the federal power over radiocommunication. In obiter, Justices Coté and Wagner also noted that interjurisdictional immunity would have rendered the notice inapplicable to Rogers.

Justice Gascon, although concurring in the result, nonetheless disagreed with his colleagues that the notice was ultra vires. In his view, a dominant characteristic of the notice was to ensure the harmonious development of Châteauguay, and as such, it could be construed as an exercise of the powers provided in sections 92(13) or 92(16) of the BNA Act. He did, however, agree with the rest of the Court that interjurisdictional immunity precluded the applicability of the notice.

5. British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25

The three individual respondents were among seven technicians from a single hospital lab diagnosed with breast cancer. They applied to the Worker's Compensation Board for compensation under BC's Workers Compensation Act on the basis that the breast cancer was an "occupational disease." Three expert reports were tendered. The experts noted that although the cluster of cancers was a statistical anomaly, they were not able to find a positive causal link between the workplace and the disease.

The Board denied the claims on the basis of the expert evidence. On appeal to the Workplace Compensation Appeal Tribunal, a majority of the Tribunal found that the worker's breast cancers were occupational diseases, on the basis that the Board applied too stringent a standard of proof on the question of causation. The BC Supreme Court overturned the causation finding. The BCSC decision was upheld by the BC Court of Appeal on 3-2 split on the issue of causation.

The central issue before the SCC was whether the Tribunal's causation finding should have been disturbed. Justice Brown, writing for the majority of the Court, held that the Tribunal's finding on causation should not have been disturbed. He noted that the Act vested the Tribunal with exclusive jurisdiction to determine all questions of fact, and that the Tribunal's lengthy reasons did provide at least two reasons for their finding. Second, as a doctrinal matter, he found that the courts below had suffered from a "fundamental misapprehension" of how causation - irrespective of the applicable standard of proof - may be inferred from evidence. In particular, he held that "the presence or absence of opinion expert positing (or refuting) a causal link is not, therefore determinative of causation" and that it is open to a trier of fact to consider other evidence, including merely circumstantial evidence.

Justice Coté, in a lone dissent, disagreed with the majority's assessment of the expert evidence and held that there was no evidence, and certainly no positive evidence, capable of supporting the Tribunal's causation finding. In her view, that decision rested on "mere speculation."

6. Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29

The appellant filed an unjust dismissal complaint under the Canada Labour Code. The employer, AECL, had terminated Mr. Wilson's employment on a non-cause basis and provided him with a generous dismissal package that well exceeded the statutory requirements. The adjudicator made a preliminary finding that severance payments, no matter how generous, could not preclude a determination under the Code about whether a dismissal was unjust. As no cause was provided, the complaint was allowed. On judicial review, the application judge found the decision unreasonable because nothing in Part III of the Code precluded employers from dismissing unionized employees on a without-cause basis. The Federal Court of Appeal agreed, but reviewed the issue on a standard of correctness.

The issues at the Supreme Court were the appropriate standard of the review and, in light of the appropriate standard, whether the adjudicator's decision should be set aside.

Justice Abella found that the standard of review was reasonableness and that the adjudicator's decision was reasonable. Importantly, she provided lengthy obiter remarks proposing that the standard of review analysis in Dunsmuir be further reduced to a single standard of reasonableness, as a way of starting a "conversation" about how best to reduce the current jurisprudential confusion surrounding Dunsmuir. Justices McLachlin, Karakatsanis, Wagner, Gascon, and Cromwell agreed in the result, with the former four justices stopping short of endorsing the single standard proposed by Abella, J. and Justice Cromwell expressly disagreeing with it.

Justices Coté, Brown, and Moldaver dissented. In their view, the appropriate standard of review was correctness. They noted that adopting a deferential standard on the question at hand - whether a federally regulated employer can dismiss an employee without cause - had resulted in the judicial endorsement of conflicting answers, and that this represented a fundamental rule of law concern. They, therefore, made the following doctrinal pronouncement: where there is a lingering disagreement on a matter of statutory interpretation between administrative decision-makers, and where it is clear that the legislature could only have intended the statute to bear one meaning, correctness is appropriate. Applying this principle, they found that review on a correctness standard was warranted in this case. After a review of the Code provisions, they held that the correct legal answer to the question is that federally regulated employers can dismiss employees without cause. They, therefore, would have set aside the adjudicator's decision.

7. Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20

The Canada Revenue Agency had issued "requirements" under section 231.2 of the Income Tax Act to several Quebec notaries in order to obtain information and documents pertaining to their clients. The Chambre des notaires du Québec and the Barreau du Québec argued that the provisions unjustifiably infringed the rights guaranteed by sections 7 and 8 of the Charter in that there was a risk that the information being sought would reveal information that is protected by solicitor-client privilege. The Attorney General of Canada and the Canada Revenue Agency disagreed, arguing that provisions are valid and that the tax authorities must rely on broad powers of audit to ensure the system's integrity. The Superior Court and the Court of Appeal ruled in favour of the Chambre and the Barreau, holding that the disputed provisions and the accounting records exception were unconstitutional and of no force and effect with respect to Quebec notaries and lawyers for all information and documents protected by solicitor-client privilege. The SCC agreed with the lower courts and dismissed the appeal.

While the case was argued under section 7 and 8 of the Charter, the Court performed its analysis under section 8 only and concluded that the provisions unjustifiably infringed that section of the Charter. The Court reiterated the importance of solicitor-client privilege and held that clients have a reasonable expectation of privacy in information and documents that are in the possession of a notary or lawyer and in respect of which a requirement is issued. Despite the fact that the requirement scheme served legitimate purposes, the Court highlighted several defects that caused the requirements to be unreasonable and contrary to section 8. First, the client is given no notice of the requirement. Second, an inappropriate burden is placed solely on the notary or lawyer concerned. Third, compelling disclosure of the information being sought was not absolutely necessary; and fourth, no measures had been taken to help mitigate the impairment of professional secrecy. There were less intrusive alternatives that Parliament could have selected.

The Court ultimately concluded that the statutory provisions in question and the accounting records exception did not minimally impair the right to professional secrecy, and therefore, they could not be saved under section 1.

8. Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47

In this case, the taxpayer Capilano complained to Edmonton's Assessment Review Board that the value of its shopping mall had been over-assessed by the City. The City, finding an error in its original assessment, requested that the Board increase the valuation of the mall. The Board, citing its powers under section 467(1) of the Municipal Government Act ultimately increased the assessment from $31M to $45M. Pursuant to a statutory appeal mechanism under the Act, Capilano requested and received permission to appeal a question of law or jurisdiction to the Alberta Court of Queen's Bench. The Court set aside the Board's decision and remanded the matter back to the Board for a de novo hearing. This order was subsequently affirmed by the Court of Appeal.

The issues at the Supreme Court were the appropriate standard of review of the Board's decision and whether the Board's decision could withstand the required scrutiny.

Justice Karakatsanis, writing for the majority, held that the standard of review was reasonableness because the substantive issue in the case - whether the Board had the power to increase the assessment - turns on the interpretation of s. 467(1) of the Board's home statute. Following Dunsmuir v. New Brunswick, [2008] 1 S.C.R 190, the majority concluded that the issue did not fall within one of the four categories identified in Dunsmuir as calling for correctness review. The Board's decision to increase the assessment was reasonable. Justices Coté and Brown, joined by the Chief Justice and Justice Moldaver, found that the standard was correctness as the question at hand - one of law and jurisdiction - fell beyond the scope of the Board's expertise. The existence of a statutory right of appeal was a factor that lead the minority to conclude that the proper standard of review is correctness. They concluded that the Board erred in increasing the assessment.

9. Endean v. British Columbia, 2016 SCC 42

The Superior Courts of BC, Quebec, and Ontario long ago certified concurrent class actions on behalf of individuals infected with Hepatitis C by the Canadian blood supply between 1986 and 1990. The parties reached a pan-Canadian settlement agreement in 1999. In 2012, class counsel filed motions in relation to the settlement agreement and proposed that the motions be heard by the three supervising judges sitting together in one location. A preliminary issue therefore arose whether a judge from the superior court of a province could sit outside his/her home jurisdiction to hear a motion. Although all parties agreed that the superior court judges have a discretionary power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan-Canadian settlement agreement, there was no agreement about the source of this discretion or the conditions under which it may be exercised.

Justice Cromwell, writing for the majority, held that Ontario and British Columbia superior court judges can sit outside their home provinces by virtue of their respective Class Proceeding Acts. These Acts should be understood as confirming and reflecting the inherent jurisdiction of superior courts to govern their own processes. As such, since these Acts in effect codify the inherent jurisdiction of the superior courts, similar powers are available to judges in jurisdictions without such legislation. Justice Cromwell also concluded that a video link between the out-of province courtroom and a courtroom in the judge's home province is not a requirement for the exercise of the power to conduct a hearing outside the home jurisdiction (as some parties had argued). The open court principle is not violated when no link is established.

Justices Karakatsanis and Wagner, concurring in the result, further opined that although a court should not be presumptively be required to order a video link when it sits extra-provincially, if the media, counsel, or the public request such a link, it should be ordered, subject to any countervailing considerations.

10. Carter v. Canada (Attorney General), 2016 SCC 4

In the original case of Carter v. Canada (Attorney General), [2015] 1 SCR 331, the Supreme Court issued a declaration of invalidity of the Criminal Code sections that prohibited physician-assisted death but suspended that declaration for 12 months to give the Government of Canada time to introduce legislation to replace the existing provisions that the Court had declared unconstitutional. The Attorney General of Canada subsequently applied for a six-month extension of the suspension of the declaration as the Government needed more time to draft the legislation, in part because of the change in government that had occurred earlier in the year. The issues before the SCC in this second case were: (1) whether the Court should order the requested extension of the suspension of the declaration of invalidity; (2) whether the province of Quebec should be exempted from the four-month extension; and (3) whether during the extension, the Court should grant an exemption to those who seek assistance in ending their life based on the Court's previously articulated reasons on the matter.

In answer to the first issue, the Court held that the unusual circumstances of the federal election justified the extension only by a period of four months. With regard to the second issue, the Court also answered in the affirmative, exempting Quebec from the four-month extension in respect of sections 4 and 26-32 of the Act respecting end-of-life care, CQLR, c S-32.0001. Finally, the Court noted that this marked the first occasion upon which the Court was asked to consider whether to grant individual exemptions during an extension of a suspension of a declaration of invalidity.

Provided that Parliament was given more time to determine what legislative response would be appropriate for physician-assisted death, the Court held that there was no need to unjustly prolong the suffering of those who met the criteria outlined in Carter. It thereby granted an exception for those who sought assistance from a physician in accordance with the criteria in Carter to apply to the superior court of their jurisdiction for relief during the extended period of suspension.

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