2021 at the Supreme Court: Year In Review
2021 was a momentous year for the country’s highest court as we bid adieu to the trailblazing Justice Rosalie Abella, retiring after 17 years on the Supreme Court of Canada (“SCC” or “the Court”). We witnessed the swearing in of Justice Mahmud Jamal, the first racialized puisne justice to be appointed to the SCC in its 146 years. Despite the ongoing COVID-19 pandemic, 2021 was a relatively busy year for the country’s highest court. The Supreme Court of Canada (“SCC” or “the Court”) heard over 48 appeals, rendered 54 written decisions, and ruled on four decisions from the bench. This was a significant increase in the Court’s docket in comparison to 2020, in which the Court released only 45 decisions, however it is not yet at pre-pandemic levels (68 in 2019 and 60 in 2018). In this article, we reflect on some of the highlights of SCC decisions in 2021 and get ready for what’s ahead in 2022.
2021 in SCC Decisions
While 2020 seemed to be the year of employment law cases, this year, the SCC’s most significant cases were in the areas of constitutional and criminal law.
Among several other notable constitutional cases, the SCC released its reasons in three high-profile cases in 2021: Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [GGPPA Reference], Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [Toronto], and Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 [Ward].
In the GGPPA Reference, a majority of the SCC upheld the constitutionality of the federal government’s taxation of carbon emissions under the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12. Writing for the majority, Chief Justice Wagner found that laws fell within Parliament’s jurisdiction under the national concern doctrine in the Peace, Order and Good Government (“POGG”) clause of the Constitution Act, 1867. The decision brought an end to the three-year saga involving three separate challenges to the legislation by the Ontario, Saskatchewan, and Alberta provincial governments. Not only was the decision a rare instance of the Court applying the POGG power, but it also saw Justice Wagner’s forceful conclusion that climate change is a matter of national concern.
In Toronto, a narrow majority of the Court found that the Ontario provincial government slashing the number of Toronto’s municipal wards in half mid-election did not violate voters’ and candidates’ free expression rights protected under section 2(b) of the Canadian Charter of Rights and Freedoms [“Charter”]. The decision was also notable for the Court’s divide in interpreting and applying unwritten constitutional principles. On the one hand, the majority declined to give effect to the City’s submission that the unwritten constitutional principles of democracy and federalism could invalidate the legislation, and instead held that the principles could only be used as interpretive aids or context to the constitutional text itself. Conversely, the dissenting justices found that both written and unwritten constitutional norms ought to be given equal weight, and are not merely background or context, but rather can be used to invalidate legislation on their own.
Finally, in Ward, the SCC found that a comedian’s jokes about a disabled, Québécois teenager did not constitute discrimination under Québec’s Charter of Human Rights and Freedoms, CQLR c C-12 [“Québec Charter”]. While Ward may be more accurately characterized as a human rights decision than a constitutional decision, given its focus on the Québec Charter, the Court’s reasoning shows a novel engagement with the balancing of the rights to safeguard one’s dignity and to freedom of expression as protected under the Québec Charter, which may have broader constitutional implications. In particular, the majority, albeit in obiter, suggested that arising out of the right to freedom of expression, there may be a “duty to tolerate” others’ speech (Ward, para 60). As our contributor has raised, it is unlikely that Ward can be taken to stand for such a proposition, but it may lead to future decisions that will confirm the existence of such a duty, thus broadening opportunities for speech or expression that might otherwise be unprotected as inciting hate or violence under the guise of “tolerance.”
2021 produced several important criminal law decisions by the SCC. Although the Court allowed the appeal from the bench in late 2020, it released its long-awaited reasons in R v Chouhan, 2021 SCC 26 [Chouhan], in which it confirmed the constitutional validity of the abolition of peremptory challenges from jury empanelments in criminal trials. Chouhan saw the Court grapple with the issue of jury representativeness and whether peremptory challenges—which allowed an accused or Crown to reject potential jurors without providing reasons—maintained sufficient diversity among jury members, or in reality operated to keep certain groups out of the jury box. As our contributor noted, the use of peremptory challenges was a highly divisive issue among various equity-seeking advocacy groups who participated in the appeal, and those same divisions were clearly present among the justices’ differing views of the utility and value of peremptory challenges.
While starting points and sentencing ranges are often taken for granted in the criminal sentencing court, R v Parranto, 2021 SCC 46 [Parranto] affirmed their use as a sentencing tool. By ruling that lower sentences imposed by the sentencing judge for fentanyl drug trafficking were “demonstrably unfit,” the SCC majority found Parranto to be a case where appellate intervention was justified. Notably, the SCC majority used the social context of the opioid crisis to justify a higher starting point given the seriousness of drug trafficking. The dissent by Justices Karakatsanis and Abella found that the majority’s decision incorrectly impeded on the sentencing judge’s discretion and dismissed other sentencing principles like rehabilitation. Although the majority maintains that the individualized nature of sentencing is still preserved, it is hard to imagine that sentencing judges would not feel pressure to assign harsher sentences given that appellate courts may be more likely to intervene if they believe the sentences did not utilize the proper starting points. This very concern was pointed out by what our contributor termed “Justice Rowe’s impassioned concurrence.” As the most recent leading case with obiter on how to balance sentencing principles, Parranto may be critical to future sentencing cases that continue to deliberate the role of social context evidence, like anti-Black racism, in sentencing.
Other Notable Decisions
Some other decisions of note are the contract case Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech], the Aboriginal title case of R v Desautel, 2021 SCC 17 [Desautel], and the labour case Northern Regional Health Authority v Horrocks, 2021 SCC 42 [Horrocks].
Wastech was the most recent case in the SCC’s jurisprudence interpreting the common law doctrine of good faith established in Bhasin v Hrynew, 2014 SCC 71. Particularly, Wastech determined that the contractual discretion must be exercised reasonably, and that this reasonableness is highly context specific and dependent on the parties’ intention disclosed in the contract. As highlighted by our contributor, Wastech is an example of how contract law continues to evolve with attention to the realities of commercial life.
Section 35 in the Constitution Act, 1982 is constantly being interpreted by the courts to determine whether Canadian law affirms Indigenous peoples’ rights to the land, including hunting, fishing, and title. In Desautel, the SCC decided that section 35 rights can include Indigenous peoples who are not Canadian citizens or permanent residents. Through legal interpretation, the SCC recognized that Indigenous peoples and their rights precede not only settler-colonization but also the drawing of international borders. The SCC in Destautel affirmed that Indigenous peoples should define their own identities; however, our contributor highlights that in reality, Canadian courts continue to maintain many legal impediments which obstruct Indigenous peoples’ path to self-determination. It remains to be seen how future interpretation of section 35 may wrestle with practical questions of access.
Finally, Horrocks changed the future of legal avenues available for unionized employees with human rights complaints relating to their collective agreement. While before the employee could go forum-shopping and elect to have their human rights complaint heard by a human rights tribunal, such matters now exclusively fall within the jurisdiction of a grievance arbitrator if the issue arises from their collective agreement. This decision is likely to reduce access to justice since unionized employees affected by Horrocks will no longer have access to systemic remedies available at tribunals, and are now at the mercy of their union which ultimately decides whether to pursue grievance arbitration at all.
What’s Ahead in 2022
2022 is primed to be a year full of significant criminal law decisions handed down by the SCC. Many are looking forward to the Court’s reasons in R v Sullivan/Chan (SCC 39270) which will determine the constitutionality of the prohibition against use of the extreme intoxication defence under section 33.1 of the Criminal Code, RSC, 1985 c C-46 (“Criminal Code” or “the Code”). The Ontario Court of Appeal (“ONCA”) agreed with the trial judge that the accused’s inability to rely on the defence, which covers behaviour caused by intoxication to the point of automatism, violated an accused’s section 7 right to liberty and section 11(d) right to be presumed innocent as protected under the Charter. The case will be the SCC’s first chance to interact with section 33.1 since it heard R v Daviault,  3 SCR 63, and will ideally provide clarification on the broader protective purpose and appropriate application of the defence.
Another ONCA case deliberating Charter rights, R v Sharma [Sharma], will be heard by the SCC in March 2022. At the ONCA, the court found that provisions of the Safe Streets and Communities Act, SC 2012, c. 1 that prohibited access to conditional sentences violated the Indigenous defendant’s Charter rights to section 7 and section 15 right to equality on the basis of race. As our contributor noted, Sharma will be a chance for the SCC to deliberate on how to correctly apply the section 15 discrimination test to Indigenous offenders during sentencing.
The SCC is also set to release its reasons in a number of sexual assault-related matters in R v JJ / R v AS (SCC 39133/39516) [JJ/AS], and R v Kirkpatrick (SCC 39287) [Kirkpatrick]. In JJ/AS, the Court will consider the constitutionality of recent amendments to the Criminal Code concerning the admission of records in which a sexual assault complainant would have a reasonable expectation of privacy—such as a private email or text message—that are in the accused’s possession. If an accused intends to rely on such evidence, subsections 278.92 to 278.94 of the Code require an accused to make an application to the court and the court will determine its relevance prior to admission. The principal question to be decided in these cases is whether the Code provisions strike the right balance of a complainant’s privacy interests against the accused’s right to make a full answer and defence. Meanwhile, in Kirkpatrick, the SCC will determine whether consent to sex can be limited to sex with a condom, and whether it can be vitiated if the condom-wearer removes it unbeknownst to their sexual partner. As our contributed commented, the case will hopefully provide clarification as to the proper interpretation of consent in cases where the sexual activity consented to was limited to consent with a condom. The decision is primed, however, to be a contentious one, as commentators noted that the court appeared divided during oral submissions last November.
Other notable decisions set to be released by the Court include two cases concerning delay in proceedings: R v JF (SCC 39267) [JF] and Law Society of Saskatchewan v Abrametz (SCC 39340) [Abrametz]. In JF, the Court will consider how the presumptive ceilings for an unreasonable trial delay, as set out in R v Jordan, 2016 SCC 27 [Jordan], should apply in a retrial. The Quebec Court of Appeal set out a new two-step analysis to determine whether delays in multi-trial criminal proceedings are unreasonable. The SCC’s impending decision, however, will be a meaningful opportunity for the Court to respond to the mounting calls for clarification by trial and appellate courts alike on how delays in the multi-trial context are to be assessed under the Jordan framework. In Abrametz, the SCC will revisit the undue delay framework in the context of administrative legal proceedings. As our contributor observed, while it may be unlikely that the Court will impose Jordan-like presumptive ceilings to administrative proceedings, the case raises crucial issues on whether the undue delay approach—as outlined by the Court in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44—sufficiently addresses issues of fairness and institutional backlogs within administrative law bodies.
With the increase of decisions released by the SCC in 2021, the most notable were constitutional and criminal cases, given their far-reaching policy impacts. The GGPPA Reference and Toronto demonstrated the tensions arising from constitutional division of powers between federal and provincial governments and how that affects greenhouse gas pricing schemes and municipal elections. On the criminal law side, in Chouhan and Parranto, the rights of criminally accused were mediated through the changes to jury selection and use of sentencing tools. In 2022, we are not only anticipating more significant SCC decisions to be released on criminal law matters but are also excited to see what Justice Jamal’s first written decision and form of writing at the SCC will be.
As we move on from 2021 to 2022 with the Omicron variant of COVID-19 at a high, we know one thing for sure: the pandemic is here to stay and that means our legal system must continue to operate with its effects in mind. Earlier in January, the SCC announced that they will continue to administer hearings remotely and justices themselves will be calling in remotely from their chambers. Just like the justices, TheCourt.ca team will continue to offer current, detailed, and thoughtful commentaries on Supreme Court and appellate decisions from our own chambers as we work from home.
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