Judgment of the Decade: Slim Pickings, but Prize Goes to a Tiger

If there is one thing law students revel in, it is evaluations and rankings. For a discipline so fraught with subjectivity and indeterminacy, we place a heavy stake in the ambiguous, opaque, and really rather meaningless ratings we are subjected to once a semester. And how else to explain all the important life choices made chiefly on the basis of law school or law firm rankings published in magazines?

In this spirit, we at TheCourt.ca are preparing a special post rating the top Supreme Court of Canada (“SCC”) decisions from 2009 in a number of categories; look for it later in the new year. January 1 not only marked the beginning of a new year but the beginning of a new decade. In that light, we wondered: “what SCC judgment over the last ten years deserves the title of ‘Judgment of the Decade’?” I would like to be the first on this site to weigh in to this discussion.

Sifting through ten years’ of SCC jurisprudence and selecting one marquee judgment is a very difficult task. That said, it is immediately apparent this would have been a much more difficult endeavour ten years ago. After boldly making headlines and stirring controversy in the 1990s, the SCC receded into the background of Canadian current affairs somewhat in the 2000s. For instance, no decision released this decade matches the political impact and explosiveness of a Reference re Secession of Quebec, [1998] 2 SCR 217R v Marshall; R v Bernard, [2005] 2 SCR 220Delgamuukw v British Columbia, [1997] 3 SCR 1010, or R v Morgentaler[1988] 1 SCR 30. Perhaps this is because there is much less uncharted Charter territory now than there was before, or perhaps the wave of prairie conservatism that wrested control of this country’s political scene in the 2000s has actually succeeded somewhat in curbing the Court’s more judicially assertive tendencies with its strident cries of “judicial activism.” Ultimately, the true cause is likely a combination of both these and other factors. For example, as James Gotowiec recently pointed out, the SCC also released significantly fewer decisions in the 2000s.

In contrast with the 1990s, then, few judgments over the past decade stand out as having the same epic stature as some 1990s judgments. In some ways, however, this makes the task of selecting one more difficult. When no blade of grass on the lawn grows much higher than the rest, it is difficult to pick out the tallest. Nonetheless, I have succeeded in coming up with a reasoned personal choice for “Judgment of the Decade.” But first, some runners-up:

United States v Burns, [2001] 1 SCR 283 – Two Canadian nationals were the subject of a request for extradition to Washington, where they potentially faced the death penalty for crimes allegedly committed before reaching the age of 18. The Court held that the extraditions of Glen Sebastian Burns and Atif Ahmad Rafay without assurances that they would not face the death penalty violated s. 7 of the Charter, and were not justifiable under s. 1. By reversing its position in Kindler v Canada (Minister of Justice)[1991] 2 SCR 779 and Reference Re Ng Extradition (Can)[1991] 2 SCR 858 just ten years before, the Court provided what has subsequently come to be seen as definitive constitutional affirmation of this country’s revulsion to capital punishment. Several years on, this stands out as a notable moment in the Court’s recent jurisprudence, as the Court’s bold foray into matters of foreign policy and concurrent rejection of arguments based on comity and respect due to American values seems in stark contrast with the more cautious demeanour it has adopted in recent years. At the same time, however, the political impact of this decision is arguably minimal, while the legal issues concerned are narrow and the jurisprudential effect has therefore been limited.

Incidentally, Charles Ng and Joseph Kindler – the deportees from 1991 – are both still on death row awaiting their punishments in the US.

Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791 – The claimants argued that provincial prohibitions against private sector health insurance violated s. 7 of the Canadian Charter and s. 1 of the Quebec Charter by denying access to health care to patients on waiting lists for public care who were able to afford private care. A 4-3 majority of the Court agreed that the claimants’ rights were violated. Such a ruling certainly had the potential to raise sweeping political implications nationwide. Intriguingly, however, Deschamps J. based her concurring reasons solely on the Quebec Charter and declined to rule on the s. 7 question, leaving an even 3-3 split with respect to the question on the Canadian Charter. This drastically narrowed the scope of any potential impact this ruling may have had. Further, two of the three judges who found a violation of s. 7 are now retired, while the three dissenting judges remain and a total of four new judges have joined the Court since then. Thus, while this decision certainly created ripples of uncertainty at the time, it very much looks like its impact for the time being is contained (particularly in English Canada.)

Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 [BC Health Services– Here, public sector trade unions challenged legislation that would have, inter alia, rolled back concessions that had been bargained for and won in collective agreements. Directly reversing a ruling that had been settled law since the 1980s, the SCC declared that the democratic right to freedom of association under s. 2(d) of the Charter protected the right to collective bargaining. This ruling seemingly opened up a new constitutional aspect of labour law, but the Court (as per its custom) set out only a bare framework of what the right to collective bargaining actually means for the purposes of s. 2(d), leaving the rest to be filled in in subsequent decisions. The next such decision will be Ontario (Attorney General) v Fraser, [2011] 2 SCR 3 [Fraser], which will explore the impact of BC Health Services on private sector labour relations. The Court could thus choose to constrict much of the impact of BC Health Services in Fraser; indeed, distinguished BC Health Services in the recent Wal-Mart decision on the grounds the employer was the government, possibly setting the table for a dramatic retreat from BC Health Services.

I do not think the Court will go this way. It would require too much in the way of legal gymnastics to dramatically narrow the impact of BC Health Services on legislation governing private sector labour relations, and the facts of Fraser are simply too repugnant to Charter values to make this worth doing. At least one of my colleagues on this site agrees with me. Nevertheless, the true impact of BC Health Services will not be made clear until at least Fraser has come out, and it would thus be premature at this point to label it the “Judgment of the Decade.”

And the winner is…Suresh v Canada 

Manickavasagam Suresh came to Canada 20 years ago from his native Sri Lanka, and was recognized as a Convention Refugee the next year. In 1995, CSIS identified him as a member of the Liberation Tigers of Tamil Eelam (“LTTE”), a now (largely) defunct Sri Lankan Tamil armed independence movement whose brutal methods of warfare led to its classification as a terrorist group by many western countries. Like both sides during the Sri Lankan conflict, the LTTE were responsible for countless atrocities. Pioneers of the modern suicide bombing, their crimes included not just suicide attacks on civilians, but also assassinations of high-profile political figures (including former Indian prime minister Rajiv Gandhi), massacres of POWs, conscription of child soldiers, and large-scale ethnic cleansing of Muslims in territories under their control. At the movement’s apex in the 1990s, the LTTE operated a de facto state apparatus that controlled much of northern and eastern Sri Lanka. At the same time, it is a telling testament to the conduct of the Sri Lankan government and army in the corresponding period that the LTTE retained strong support in Toronto’s Sri Lankan Tamil community despite the organization’s many odious acts, although their support base in their war-weary homeland has seemed quicker to tire of them.

As long as this bloody and seemingly endless civil war lasted, it could not outlast the pitched legal battle waged in Canada’s courts and immigration tribunals between Mr. Suresh and Canadian government authorities, which continues unabated to this very day. After Mr. Suresh was identified by CSIS as an LTTE member, the government initiated proceedings to deport him.  The government filed a security certificate under the Immigration Act alleging that Mr. Suresh, who denies LTTE involvement, was inadmissible to Canada on security grounds. Alleging that he faced a substantial risk of torture upon being returned to Sri Lanka, Mr. Suresh applied for judicial review of these proceedings, arguing that the decision to deport him was unreasonable and procedurally deficient.

Eventually, the judicial review proceedings made their way to the SCC. In its landmark 2002 decision, the Court ruled that deportation to torture would violate s. 7 in all but the most exceptional circumstances. In light of this, Mr. Suresh was entitled to certain procedural safeguards which had not been accorded to him, such as the right to know the case against him, the right to present evidence in reply, and the right to written reasons emanating from the decision maker. Accordingly, the Court remanded the case to the Minister for reconsideration under these constitutional guidelines.

Legally speaking, Suresh v Canada (Minister of Citizenship and Immigration)[2002] 1 SCR 3 [Suresh] is remembered for its considerations of torture, the administrative law duty of procedural fairness, the domestic relevance of international law, and whether the Charter applies where the primary rights infringement is the claimant’s treatment at the hands of third parties upon removal from Canada. In none of these areas did the decision break significant new legal ground. It is largely for extrinsic reasons, rather, that Suresh in my view merits the title “Judgment of the Decade.”

Perhaps the core defining characteristic of the last decade’s SCC jurisprudence is how it was marked with high-profile judgments navigating the constant tensions between concerns of national security and civil liberties that were inflamed following the events of September 11, 2001. Suresh was the first in that line of judgments, which includes Khadr and the two Charkaoui’s. Released just four months after the attacks on the World Trade Center, it set the stage for much of the work that would come to preoccupy the SCC (and, indeed, the entire federal court system) for much of the next decade. The fact that the government ended up on the losing end of many of the most high-profile national security cases suggests that the courts’ role as a reasoned and sober safeguard was a necessity institutional safeguard during this past decade, shielding the public’s civil liberties from the excesses of government brought on by the prevailing political climate of the day. It is this role, arguably, that most centrally defined the place of the courts in the Canadian political system during the last decade. Ultimately, I think it is a fair assessment to say that the Supreme Court stepped up and discharged this role well. They did not back down from their duty by succumbing to political pressures and according undue deference to the executive. At the same time, neither could it be said that they overstepped the bounds of what properly falls within the realm of judicial determination. The delicate balance struck between competing considerations of civil liberties and national security in the Suresh decision set the tone for all the judgments that would follow in this important judicial battleground – at the Supreme Court and other levels – and it is primarily for this reason that I believe it merits, more than any other decision, the title of “Judgment of the Decade.”

I am, however, far from intractable on this position, and it is very much open to debate. While Suresh gets my vote, I would certainly be interested to hear others’ thoughts on the matter as well. Lest it be thought that I have based my reasoning purely on extrinsic factors, I should point out that if such were the case I could have chosen the more high-profile Charkaoui or Khadr decisions.  The legal value of those judgments aside from the broader political context, however, is dwarved by Suresh, which is also a remarkable and complex decision in its own right. I feel that the legal holdings in Suresh have made much more of a lasting impression than those in Khadr or either of the Charkaoui’s. As such, the title “Judgment of the Decade,” in my estimation, goes to Suresh.

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