Part II: 2015 Year in Review
2015 has been a particularly significant year for the Supreme Court of Canada (“SCC”) in a number of ways, and indeed, TheCourt.ca’s editorial staff has been kept quite busy. Part I of this year-in-review post will summarize the activity of the SCC and the comings and goings of Justices and staff. Part II will discuss some of the key precedent-setting decisions handed down this past year and important cases to follow in 2016.
By far the most politically and socially significant decision of 2015 was that of Carter v Canada (Attorney General),  1 SCR 331, where a unanimous bench jointly found sections 14 and 241(b) of the Criminal Code, RSC 1985, c C-46 unconstitutional, violating the right to life, liberty and security of the person in a manner inconsistent with the principles of fundamental justice protected under section 7 of the Charter. The Court thus declared the impugned Criminal Code provisions void, insofar as they prohibit a physician from assisting in the suicide of a consenting, competent adult who suffers intolerably from a grievous and irremediable medical condition. (For in depth case comments, see here and here.) The declaration of invalidity was suspended for one year – although the Federal government was successful in having the suspension extended for a further four months in Carter v Canada (Attorney General), 2016 SCC 4. (For a case comment on the live hearing, see here.)
Although this decision has received the most media attention, it was by no means the only significant decision in 2015. In fact, only a week before the 2015 Carter ruling was handed down, the SCC issued another landmark Charter decision in Saskatchewan Federation of Labour v Saskatchewan,  1 SCR 245, with Justice Abella’s majority recognizing the “right to strike [as] constitutionally protected because of its crucial role in a meaningful process of collective bargaining”(para 51). (For a detailed case comment, see here.)
Equally noteworthy is the divided opinion on the constitutionality of mandatory minimums in R v Nur,  1 SCR 773, where a 6-3 majority found the three- and five-year mandatory minimum sentences on certain firearm-related offences to be grossly disproportionate, relying on the use of the controversial “reasonable hypothetical.” (For an analytical case comment, see here.)
In addition to Charter jurisprudence, the constitutional division of powers was also at issue on several occasions in 2015. In the “paramountcy trilogy” (consisting of Lemare; Alberta (Attorney General) v Moloney, 2015 SCC 51 (for a case comment on Lemare and Moloney, see here and here, respectively); and 407 ETR Concession Co v Canada (Superintendent of Bankruptcy), 2015 SCC 52), Justice Clément Gascon appears to have re-worked (and in a sense, re-cast) the contemporary approach to the two-part paramountcy test, much to the disapproval of Justice Côté. The SCC also grappled with the proper application of the doctrine of cooperative federalism in Quebec v Canada (for an analytical case comment, see here). Finally, in Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, an 8-1 majority affirmed the constitutional validity of provincial legislation imposing immediate penalties for those caught driving while impaired through approved screening devices. (For a detailed case comment, see here.)
Closely related to the constitutional realm are the two public law decisions concerning Crown proceedings. The appeal in Henry v British Columbia (Attorney General),  2 SCR 214 [Henry] involved a civil suit stemming from the wrongful conviction of Mr. Henry, after the Crown failed to make full disclosure before his trial. Justice Moldaver’s majority decided that malice was not in fact a requirement to obtain a charter remedy. Nonetheless, he ultimately held that civil recourse in cases like that would only be available to a claimant who suffered harm as a result of the intentional withholding of information by the Crown in circumstances where it knew or ought to have known that the disclosure would have restricted the defense’s ability to fully answer the charge. TheCourt.ca’s Katya Bogdanov suggests that this new standard – intention without malice – bears very little appreciable difference to the pre-Henry standard requiring both intention and malice. TheCourt.ca’s Dan Priel also takes another look at Henry and how to deal with difficult precedent and facts.
Similarly, the SCC in Strickland v Canada (Attorney General),  2 SCR 713 [Strickland] addressed the question of whether provincial superior courts could review the validity of federal administrative action. Both the majority and the concurrence agreed that superior courts have the jurisdiction to consider the validity of regulations in administrative law if that point is necessary for the determination of the matter before them. In their concurring reasons, however, Justices Abella and Wagner took care to note that Strickland ought not to be interpreted as “categorically endorsing” the assumption that “the Federal Court always has exclusive jurisdiction to declare invalid federal regulations promulgated by the Governor in Council” – this assumption is to be tested in another case “where the issue is squarely raised” (para 67). (For an in depth case comment, see here.)
The SCC also took the opportunity in 2015 to address and clarify a number of ambiguous doctrines and principles in the criminal law. In R v Rodgerson,  2 SCR 760, a unanimous bench warned against the nature of using post-offence conduct evidence as a basis to prove intent, and affirmed that juries hearing this type of evidence must be properly instructed about its limited probative value regarding intent. (For an analytical case comment, see here.)
The right to a fair trial was also the topic of an important ruling in R v Kokopenace,  2 SCR 398, where the accused – an on-reserve Aboriginal man – argued that the under-representation of Aboriginal people on the jury roll in his district violated his section 11(d) right to a fair trial, and section 11(f) right to a jury trial. Despite recognizing “the problem of the underrepresentation of Aboriginal on-reserve residents in the jury system,” a divided court found that Ontario satisfied its obligations by making reasonable efforts in this area (para 127). TheCourt.ca’s Zinejda Rita nonetheless suggests that Ontario has since demonstrated some willingness to improve the representation of Aboriginal in jury selection, by adopting certain Iacobucci Report recommendations on this point.
Finally, in MM v United States of America, 2015 SCC 62, the SCC undertook the difficult task of reviewing the Minister of Justice’s decision to surrender the appellant-mother of three children to the United States to face abduction charges, after she and her children were located in a battered women’s shelter in Quebec. The mother contended that she did not abduct her children – rather, that that they had ran away with her to escape the mental and physical abuse inflicted on them from their father, who had sole custody. For the majority, Justice Cromwell dismissed the appeal, and upheld the Minister’s surrender order. A strong dissent authored by Justice Abella called the majority approach “Kafkaesque” (para 176), and among other things, raised serious questions about the majority’s consideration of the children’s best interests. (For a detailed case comment, see here.)
In 2015, the SCC handed down a monumental decision with potentially huge implications on corporate law. Tervita Corp v Canada (Commissioner of Competition),  1 SCR 161, marks the very first time the SCC has directly explored the merger and efficiency defence provisions in the Competition Act, RSC, 1985, c C-34. In their fantastic review of this complex and highly technical decision, TheCourt.ca’s Kendall Grant and Andreea Andrei underscored several key implications and troublesome aspects of this decision, which is sure to have a considerable impact on Canadian merger and competition law.
A major point of contention in 2015 was the proper application of the standard of review for each issue raised in a judicial review. This was a live dispute in Movement laïque québécois v Saugenay (City),  2 SCR 3 (for a case comment, see here) and Canadian Broadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57 [SODRAC] where the majorities both held that the reviewing court ought to break down the issues, and review each separate question under its proper standard, as opposed to reviewing the decision as a whole. Dissenting on this point in both decisions, Justice Abella strongly criticized the majority’s position – in SODRAC, going as far as stating the following:
Extricating the various components of the decision and subjecting each to its own standard of review analysis represents, with respect, a significant and inexplicable change in this Court’s standard of review jurisprudence, further erodes the careful framework this Court endorsed in Dunsmuir v New Brunswick, […] and risks creating an unworkable template for the judicial review of administrative decision-making (para 189).
Although the majority’s approach appears to have won out in 2015, we can expect this debate to continue, with Justice Abella likely to persevere in her opposition to the multiple-standards-of-review approach.
Other Significant Decisions
In Theratechnologies Inc v 121851 Canada Inc,  2 SCR 106, the SCC clarified the “reasonable possibility of success” standard that must be met by shareholders seeking to launch a securities class action regarding shares purchased on the secondary market – a requirement common in the securities legislation of most provinces. The unanimous bench agreed that this requirement ought to be more than just a “speed bump,” and that it should instead be used to screen unmeritorious or frivolous claims, so as to only allow those with a reasonable chance of success to proceed (para 38). This raises questions as to whether the Theratechnologies decision “could make it harder for plaintiffs across the country to file this kind of legal action.” (For an analysis on the case, see here.)
Finally, in a seemingly never-ending dispute between a global oil company and a small class of South American villagers, the SCC decided in Chevron Corp v Yaiguaje, 2015 SCC 42 that the Ecuadorian plaintiffs can now have an extraterritorial judgment recognized and enforced against Chevron in Ontario, despite there being no real and substantial connection between that dispute and the province. Although this may seem like a huge victory for the underdog, Justice Clément Gascon reminds us nonetheless that the ruling “does nothing more than to give the plaintiff an opportunity to seek recognition and enforcement,” and the defendant can still avail itself of any available procedural and substantive tools in its tireless attempt to dispose of the plaintiff’s allegation (para 94). With that in mind, TheCourt.ca’s Katya Bogdanov predicts that this saga is likely to drag on in courtrooms around the world. (For another case comment, see here.)
Despite a busy and eventful 2015, the SCC is showing no signs of slowing down, with 11 appeals and motions heard in January alone, and five decisions released thus far in 2016. Moreover, a number of decisions to be released, and key appeals remain to be heard.
World Bank Group v Kevin Wallace et al was heard late last year, and we can expect an important pronouncement on this complex and interesting legal dispute, involving accusations against SNC Lavalin officials under the Corruption of Foreign Public Officials Act, SC 1998, c 34. Similarly, judgment in R v DLW is expected to be handed down this year, where the SCC will decide on the elements of the Criminal Code offence of bestiality. (For an in depth case comment on the decision from the British Columbia Court of Appeal, see here; for a review of the hearing from the SCC, see here.)
The SCC is also scheduled to hear the appeal in Royal Bank of Canada v Trang et al, which will address important privacy law questions in our increasingly interconnected society. The difficult questions regarding factual causation in medical malpractice law will be put to the SCC in Benhaim v St-Germain, with the hearing tentatively scheduled for April 2016. Finally, in R v Lloyd, the SCC will have the opportunity to assess the constitutionality of a mandatory minimum sentence under the Controlled Drug and Substances Act, SC 1996, c 19. (For an analysis on the decision from the British Columbia Court of Appeal, see here.)
As always, TheCourt.ca will be your one-stop source for all SCC-related news and analysis.