2022 at the Supreme Court: Year in Review
Despite the uncertainties brought on by 2022, the Supreme Court of Canada (“SCC” or “the Court”) concluded another noteworthy year. The Court began to slowly welcome back members of the public on a limited in-person basis after two long years of virtual hearings. Additionally, notwithstanding global disruptions like the war in Ukraine or the internal tensions within the United States (“U.S.”) Supreme Court, the SCC remained focused on moving through their docket. In 2022, the Court rendered an impressive 54 decisions—a strikingly similar number to those issued in 2021.
For the second consecutive year, we witnessed a historic transition in our roster of SCC justices. We bid farewell to Justice Michael J. Moldaver, who retired from the Bench after eleven years of devoted service. Justice Moldaver brought to the Bench his acclaimed expertise in criminal law, serving on the Court under both Chief Justice Beverley McLachlin and Chief Justice Richard Wagner. His legacy will be defined by his affinity for making the law more accessible to the public and for his reputation as one of the Court’s best writers. In his place, we welcomed Justice Michelle O’Bonsawin as the first Indigenous person ever appointed to the SCC. Justice O’Bonsawin brings a breadth of knowledge to the Bench, including her personal experience as a Francophone First Nations woman and her expertise in employment law, criminal law and mental health law. Canadians can look forward to the fresh perspective of Justice O’Bonsawin, who notes that her abilities allow her to contribute to making Canada a more inclusive society which is fair and just to all (Questionnaire for Judicial Appointment).
In this article, we explore the jurisprudential highlights of 2022 and look ahead to what is in store for 2023.
Constitutional Law Decisions
The Court ruled on the controversial topic of automatism in its highly anticipated decision, R v Brown, 2022 SCC 18 [Brown], which was rendered alongside its companion case, R v Sullivan, 2022 SCC 19. Writing for a unanimous bench, Justice Kasirer in Brown held that the defence of extreme self-induced intoxication akin to automatism was available to an accused for crimes of general intent. In doing so, the Court found that the Criminal Code RSC 1985, c C-46 (“Criminal Code”) provision prohibiting this defence was unconstitutional because it unjustifiably infringed ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”). The outcome in Brown furthers the decades-long tension between public concern over the defence of automatism, Parliament’s attempts to regulate the defence, and the Charter rights of an accused seeking to rely on the defence. As our contributor notes, Parliament has since adopted the SCC’s recommendations in Brown to bring the impugned law into constitutional compliance. Their prompt action on this issue speaks to their firm commitment to protecting victims of violent crimes.
In a disappointing judgement from the Bench, the SCC in R v Sharma, 2022 SCC 39 [Sharma] departed from principles of substantive equality in upholding the constitutionality of certain Criminal Code provisions. These provisions limit the availability of conditional sentences for convicted individuals, which in this case, involved an Indigenous woman with a history of systemic disadvantages. The decision resulted in a splintered bench, with only a 5-4 majority finding that the impugned provisions did not violate ss. 7 or 15 of the Charter. Our contributor questions the majority’s application of the s. 15 test to establish discrimination, finding that the Court’s iteration seemingly imposes a greater burden on the claimant than has been called for in past cases. Our contributor also highlights the “searing” dissent of Justice Karakatsanis, who, speaking for four, stated that the majority’s treatment of the s. 15 analysis “dislodge[s] foundational premises of existing jurisprudence.” (Sharma, para 206). While the Senate’s recent passing of Bill C-5 now renders the Sharma judgement moot, the case will likely obfuscate jurisprudence on s. 15 and will surely raise tensions between the application of formal and substantive equality.
Furthering the Law on Sexual Assault Offences
Among its criminal law decisions, the SCC made significant strides in the realm of jurisprudence regarding sexual assault offences.
Perhaps one of the most highly publicized criminal law cases of the last year, R v Kirkpatrick, 2022 SCC 33, took over headlines as the SCC confirmed that the failure to use a condom when it is a condition of sex is in fact sexual assault. Our contributor notes that the Court’s 5-4 split caused immense misunderstanding within the public given the way that media sources framed the issue. Because of this framing, many were led to believe that this “split” implied that the dissent did not consider such conduct to ever be criminal. In reality, the Court was split on the reasoning behind the criminal law regime. For our contributor, the most important part of the majority’s reasoning is the way in which it understands that the risk of non-consensual condom refusal and removal impacts some individuals more than others. Acknowledgment of the way laws disproportionately impact differently situated groups is a step in the right direction for the SCC. The Court would be wise to continue to prioritise this discourse in future cases if it is to continue to pursue the goal of a more equitable society.
R v JJ, 2022 SCC 28 [JJ] grappled with the scope and legality of Bill C-51, which governs the use and admissibility of private records of sexual assault complainants within the accused’s possession. In an emphatic victory for survivors, the SCC found that the Bill did not violate ss. 7 or 11(d) of the Charter and therefore remains valid. The effect of this decision means that an accused must continue to undergo significant legal hurdles to admit a complainant’s private records into evidence. JJ is the latest in a jurisprudential trend of modifying evidence law to encourage the reporting of sexual assault offences—an incredibly prevalent and oft underreported crime. Our contributor submits that the constitutionality of Bill C-51 can be read as an extension of the “twin myths regime” under s. 276 of the Criminal Code, which similarly operates to protect sexual assault complainants from “unjustifiable attacks on their character.” Ultimately, JJ reveals the SCC’s growing intention to protect the rights and interests of the complainant within a system that has historically worked to silence and invalidate them.
Other Notable Cases
Canada’s highest court released three notable decisions in the areas of administrative law, criminal law and civil procedure.
The SCC produced an important judgement for administrative law lovers in the decision Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 [SOCAN]. In SOCAN, the SCC introduced a sixth exception to the presumption of “reasonableness review” when scrutinizing administrative decisions on appeal, signalling that the Court’s jurisprudential overhaul on the approach to selecting a standard of review is not yet over. The Court steadfastly affirmed the presumption of reasonableness review three years prior in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. This decision included a non-exhaustive list of instances in which the more stringent standard of “correctness review” would apply to reviewing courts. However, despite the SCC’s previous statement that “any new basis for correctness review would be exceptional,” the Court found that the facts of SOCAN called for a new exception. Now, cases where both administrative bodies and courts have concurrent first instance jurisdiction must also undergo a correctness review. Drawing from Justice Karakatsanis’s “scathing” dissent, our contributor noted that the majority’s new exception neglects the importance of stare decisis, undermines the rule of law and operates against the intentions of Vavilov, which was to ensure simplicity, predictability and certainty to the standard of review. Per our contributor, “the SCC should avoid purporting to clarify legal approaches and then re-mystifying them soon afterwards.”
The Court found itself in a sticky situation in R v Vallières, 2022 SCC 10 where the Court was confronted with determining the proper criminal penalty for individuals who stole copious amounts of maple syrup. While one might have thought that a case on such a bizarre topic would result in an absurd outcome, the Court simply emphasized that judicial discretion does not exist when limiting the amount of a fine or penalty issued pursuant to s. 462.37(3) of the Criminal Code. Our contributor remarks that this decision reflects the SCC’s uncompromising attitude toward combating crime by capturing the entire amount of personal profits gained in criminal enterprises, instead of reducing the fine to reflect the accused’s overall net profit.
Those working in the public interest can better predict their chances of obtaining public interest standing after the SCC revisited the applicable legal test in British Columbia v Council of Canadians with Disabilities, 2022 SCC 27. In examining the test as originally articulated in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, the Court grappled with how much weight to afford legality and access to justice concerns. Ultimately, the SCC held that in order to ensure a balanced and fair application of the test, courts should not give priority to any particular factor. At first blush, this result may sound like a step back for public interest groups. However, our contributor asserts that the SCC had the right goal in mind in weighing the balancing between factors, as the practice of determining whether to grant standing is highly contextual. A balanced framework, then, is the best practice.
Looking to 2023
2023 is set to be a year of development on issues of Indigenous self-governance, language rights and more.
Despite the SCC’s tactful evasion of the issue of Indigenous self-governance in prior jurisprudence, the issue will fall squarely before the Court in two upcoming cases. The first instance, Attorney General of Québec, et al v Attorney General of Canada, et al (SCC 40061) [Bill C-92 Reference] will ask the SCC to determine the constitutionality of an Indigenous self-governance agreement concerning the provision of family and child services. In doing so, the Court will likely explore Indigenous group’s inherent right to self-government and its relation to Aboriginal rights conferred under s. 35 of the Constitution Act, 1982. The Bill C-92 Reference will provide insight into how Indigenous self-governance frameworks operate alongside federal and provincial legislation and will provide an opportunity for our highest court to grapple with this long-fought-for issue.
Additionally, Cindy Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 will be a case to watch as it concerns the applicability of the Charter to Indigenous self-government treaties. The appellant, Ms. Dickson sought to run for local council but was precluded by a residency requirement that she did not meet. As a result, Dickson argued that the residency requirement was invalid given the fact that it conflicted with her rights under the Charter. The SCC must decide whether the First Nations self-government provisions are shielded from review, whether the Charter applies to Dickson’s circumstances, and if so, the extent of the Charter analysis. Our contributor predicts that given the context, history, and ongoing efforts at reconciliation, “the SCC will and should see s. 25 as taking primacy over all other Charter rights, precluding any one person — Indigenous or otherwise — from having a constitutionally empowered veto on how Indigenous groups decide to govern themselves.”
2023 is also going to be an exciting year for the Court to broach the subject of minority language rights in both constitutional and criminal contexts. On the subject of education, the SCC will be tasked with unpacking the requisite qualifications of rights holders under s.23 of the Charter. This provision grants qualifying families the right to send their children to minority language schools. This appeal from AB v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8, will be instrumental in interpreting the minority rights regime in the Northwest Territories, but also for the broader Francophone community in Canada.
In a similar vein, in early January of 2023, the SCC granted leave to appeal in R v Tayo Tompouba, 2022 BCCA 177, an appeal from a conviction of sexual assault where the Francophone accused was not informed of his right to be tried in his language of choice in accordance with s.530(3) of the Criminal Code. Are trial judge’s responsible for making this right known to the accused, or does the burden lie with the accused to assert the right at trial? Only time will tell in these much-awaited minority language rights cases.
Finally, we can expect to see advancements in immigration law, as well as further development in laws governing sexual assault cases.
Immigration law enthusiasts will be keen to read the verdict in Canadian Council for Refugees, et al. v Minister of Citizenship and Immigration, et al (SCC 39749), a case the SCC heard in late 2022. The case surrounds the “Safe Third Country Agreement”, which permits countries including the U.S. to share responsibilities for incoming refugees. The Federal Court of Appeal dismissed the applicants’ Charter challenge on the enforcement of the Safe Third Country Agreement largely for procedural matters; however, an overturning of this decision “could make a powerful statement about Canada’s perception of the U.S. as a safe country for refugees”.
Continued advancement in the law governing sexual assault offences can be expected to emerge from R v Kruk, 2022 BCCA 18. The case concerns the scope of speculative reasoning and the determination of when it is appropriate for judges to rely on such reasoning in their judgements. Our contributor writes that the SCC should make a clear statement that judges must avoid speculative reasoning that is not grounded in evidence or party submissions, and to use the tool of judicial notice only when necessary. Per our contributor, this approach will best safeguard the rights of both the complainant and the accused.
Overall, 2022 saw a considerable amount of criminal law cases, many of which focused on strengthening the rights of Canada’s most vulnerable. We hope to see a continuation of this trend in the Court’s upcoming decisions, especially with a Bench that increasingly reflects Canada’s diverse social landscape. We also remain curious as to whether the SCC will continue its trend of granting an increased number of leave applications, as has been the general pattern since 2020. As always, our team at TheCourt.ca will keep readers apprised of judgements emerging from the SCC and appellate courts and will continue to provide detailed and accessible insights.