“And the Winner is…” — Announcing the Second Annual Golden Gavel Awards!

After weeks of mounting speculation, TheCourt.ca‘s editorial team is proud to present the winners of its second annual Golden Gavel awards! The illustrious Golden Gavels, previously called the OZZYs, recognize the most significant developments in Supreme Court of Canada jurisprudence.

To recap, Golden Gavels are awarded in the following categories:

  • Criminal Judgment of the Year
  • Constitutional Judgment of the Year
  • Civil Judgment of the Year
  • Concurrence of the Year
  • Dissent of the Year
  • Most Disappointing Refusal of Leave
  • Most Exciting Grant of Leave
  • Justice of the Year
  • Judgment of the Year
  • Due to a booking mix-up with the Kodak Theatre, the Golden Gavels’ originally intended venue, as well as considerable confusion about how we should read several ambiguous “hanging chad” Golden Gavel voting ballots, TheCourt.ca‘s report of the award winners was unfortunately delayed this year. We hope that our announcement is still met with baited breath by court-watchers everywhere.

    And please rest assured, following the editorial team’s consideration of their performance hosting the Oscars earlier this year, TheCourt.ca has relieved James Franco and Anne Hathaway of their previous freelance engagement to write this article. The task thus falls on me to serve as your red carpet Golden Gavel correspondent. And I am thrilled to be part of something which the entire editorial team hopes will become a recurring special feature on the site in years to come.

    And the winners are…?

    Criminal Judgment of the Year

    Nominees

    R. v. CORNELL, 2010 SCC 31, on the reasonableness of police conduct during the execution of a search warrant on a private dwelling. The Supreme Court’s decision is well canvassed on this site, with Christine Kellowan first engaging it here and Katherine MacLellan following up here.

    R. v. GOMBOC, 2010 SCC 55, on Charter protections against unreasonable search and seizure with respect to the warrantless use of new technology to measure the flow of electricity into a residence. Umair Abdul discussed this case in its Court of Appeal context here.

    R. v. MORELLI, 2010 SCC 8, on the validity of a search warrant obtained on a faulty and problematic basis in a child pornography investigation. Ahsan Mirza first commented on the ruling here with respect to criminal possession of digital images, with James Yap later writing about the Supreme Court’s jurisprudence on internet-based child sexual exploitation here.

    R. v. SINCLAIR, 2010 SCC 35, on the interpretation of s. 10(b) of the Charter re the presence of defence counsel during a custodial interrogation. Laura Achoneftos originally covered the Supreme Court’s decision here, and later surveyed it as part of a new “iron triangle” of interrogation cases here. Rebecca Ross also discussed the case when it was first granted leave here.

    TORONTO STAR NEWSPAPERS v. CANADA, 2010 SCC 21, on the constitutionality of mandatory publication bans authorized under s. 517 of the Criminal Code. Christine Kellowan canvassed the Supreme Court’s ruling here, with Regina Lee and Ankur Bhatt preceding her in the appellate context here and here.

    And the Golden Gavel Goes to…

    R. v. CORNELL. The Supreme Court divided 4-3 in this contentious search warrant case. Cromwell J. narrowly held that the police, whom rammed open the defendant’s door clad in balaclavas without knocking or announcing their presence, tearing through his home without there being any risk of violence enumerated in the ITO, had executed their search warrant with reasonable force. The decision should have broad implications in criminal procedure, while testifying to deep-seeded divisions on the court about the scope of our s. 8 Charter right and how much force is too much force.

    Close Second: R. v. SINCLAIR.

    Constitutional Judgment of the Year

    Nominees

    REFERENCE re ASSISTED HUMAN REPRODUCTION ACT, 2010 SCC 61, on the constitutional law of federalism as well as important legal questions concerning the broad subject matter of the statute, ranging from in-vitro fertilization to human cloning. Dave Snow commented on the Supreme Court’s reference here.

    CANADA (PRIME MINISTER) v. KHADR, 2010 SCC 3, on the Charter rights of Omar Khadr and possibility that the Canadian government may be compelled to request his repatriation from Guantanamo Bay. Cris Best and James Gotowiec wrote posts on the high profile decision here and here, with Ahsan Mirza and James Gotowiec anticipating the reasons here and here.

    R. v. CONWAY, 2010 SCC 22, on the relationship between the Charter, its remedial provisions, and administrative tribunals. Cris Best commented on this important case here.

    R. v. NATIONAL POST, 2010 SCC 16, on the interplay of journalistic-source privilege and ss. 2(b) and 8 of the Charter, protecting freedom of expression and the right to be free from unreasonable search and seizure respectively. The decision has been thoroughly canvassed on this site at the Supreme Court level by Cris Best here and here, and at the Court of Appeal level by Jakki Warkentin here, Kevin Tilley here, and Julian Ho here.

    VANCOUVER (CITY) v. WARD, 2010 SCC 27, on the new test for awarding constitutional damages under s. 24(1) of the Charter as a remedy for breaching rights. Christine Kellowan twice commented on the case, most recently in its Supreme Court context here and last year in its Court of Appeal context here.

    And the Golden Gavel Goes to…

    REFERENCE re ASSISTED HUMAN REPRODUCTION ACT. This 4-4-1 decision was released after an exceptionally long gestation period — 20 months — from when it was first heard in April 2009, speaking to the complexity and importance of the issues involved. The constitutionality of nearly every aspect of assisted human reproduction policy was on the table, as they regarded federalism and the criminal law power under s. 91(27). And the stakes were high: proponents of the AHRA feared that striking down the legislation, which the Supreme Court did in part, would leave Canada with an unregulated patchwork of unenforceable policies. A worthy Golden Gavel winner indeed.

    Nearly There: CANADA (PRIME MINISTER) v. KHADR.

    Civil Judgment of the Year

    Nominees

    FULLOWKA v. PINKERTON’S OF CANADA LTD., 2010 SCC 5, on the potential liability of the security firm hired to ease tensions in the labour dispute at Giant Mine, where a 1992 explosion killed nine people. I commented on the decision when it was first released here, with Neil Wilson following up here.

    GLOBE AND MAIL v. CANADA (ATTORNEY GENERAL), 2010 SCC 41, on the rules concerning journalistic-source privilege in the civil litigation context. (The privilege was also discussed this year in the Golden Gavel-nominated R. v. National Post, but in the criminal investigation context.) The Globe and Mail ruling has been surveyed by Umair Abdul here.

    NEMETH v. CANADA (JUSTICE), 2010 SCC 56, on the “principle of non-refoulement” in international law — whether a person with refugee status in Canada may be extradited to a foreign country where she may be subject to human rights violations. Alysia Lau discussed the decision here, with James Yap considering it in the Court of Appeal context here.

    PROGRESSIVE HOMES LTD. v. LOMBARD GENERAL INSURANCE CO. OF CANADA, 2010 SCC 33, on the interpretation of general liability insurance policies relating to the construction of defective homes. Christine Kellowan covered the decision here.

    REFERENCE RE BROOME v. PRINCE EDWARD ISLAND, 2010 SCC 11, on the possibility that governments may owe a duty of care to orphans who rely on their protection in the absence of parental or other guardian-like protection. Christine Kellowan surveyed the Supreme Court case here, while I engaged it in the Court of Appeal context here.

    And the Golden Gavel Goes to…

    GLOBE AND MAIL v. CANADA (ATTORNEY GENERAL). LeBel J.’s unanimous reasons in this case build on the Supreme Court’s earlier ruling in R. v. National Post, protecting the confidentiality of journalistic sources, by extending it to the civil litigation and Quebec Civil Code contexts. His decision endorses the four Wigmore criteria for journalistic source privilege, which are to be applied by privilege claimants on a case-by-case basis. This approach places especial emphasis on competing public interests in protecting the identity of informants and getting at the truth, which is undoubtedly the correct focus, and, in our view, worth recognizing this year.

    Nipping at the Heels: NEMETH v. CANADA (JUSTICE).

    Concurrence of the Year

    Nominees

    BECKMAN v. LITTLE SALMON/CARMACKS FIRST NATION (Deschamps J.’s reasons), 2010 SCC 53, on aboriginal land claim treaties and the duty to consult. Katherine MacLellan surveyed this case in depth here.

    R. v. GOMBOC (Abella J.’s reasons), 2010 SCC 55, on Charter protections against unreasonable search and seizure with respect to the warrantless use of new technology to measure the flow of electricity into a residence. Umair Abdul discussed the Supreme Court decision twice, here and here, as well as in its Court of Appeal context here.

    NIL/TU, O CHILD AND FAMILY SERVICES v. B.C. GOVERNMENT AND SERVICES EMPLOYEES’ UNION (McLachlin and Fish JJ.’s reasons), 2010 SCC 45, on the jurisdiction of labour relations on federalism grounds.

    And the Golden Gavel Goes to…

    R. v. GOMBOC (Abella J.’s reasons). The Supreme Court’s resident human rights expert weighs in on this complicated search case, involving the use of a digital recording ammeter (DRA) to monitor electricity use in a marijuana grow-op investigation, with characteristic eloquence and insight. Abella J.’s reasons add nuance to the majority’s decision by finding that the accused did not have a reasonable expectation of privacy given the regulatory scheme which governed his relationship with his utilities provider, while furthering the controversial Charter “values” debate.

    Not Even Close Second: BECKMAN v. LITTLE SALMON/CARMACKS FIRST NATION (Deschamps J.’s reasons).

    Dissent of the Year

    Nominees

    R. v. CORNELL (Fish J.’s reasons), 2010 SCC 31, on the reasonableness of police conduct during the execution of a search warrant on a private dwelling. Christine Kellowan first engaged the Supreme Court’s decision here, with Katherine MacLellan following up here.

    R. v. NATIONAL POST (Abella J.’s reasons), 2010 SCC 16, on the interplay of journalistic-source privilege and ss. 2(b) and 8 of the Charter, protecting freedom of expression and the right to be free from unreasonable search and seizure respectively. The decision has been thoroughly canvassed on this site at the Supreme Court level by Cris Best here and here, and at the Court of Appeal level by Jakki Warkentin here, Kevin Tilley here, and Julian Ho here.

    R. v. SINCLAIR (Binnie J.’s reasons), 2010 SCC 35, on the interpretation of s. 10(b) of the Charter re the presence of defence counsel during a custodial interrogation. Laura Achoneftos originally covered the Supreme Court’s decision here, and later surveyed it as part of a new “iron triangle” of interrogation cases here. Rebecca Ross also discussed the case when it was first granted leave here.

    TORONTO STAR NEWSPAPERS v. CANADA (Abella J.’s reasons), 2010 SCC 21, on the constitutionality of mandatory publication bans authorized under s. 517 of the Criminal Code. Christine Kellowan canvassed the Supreme Court’s ruling here, with Regina Lee and Ankur Bhatt discussing the case in its appellate context here and here.

    TERCON CONTRACTORS v. BRITISH COLUMBIA (TRANSPORTATION AND HIGHWAYS) (Binnie J.’s reasons), 2010 SCC 4, on infractions in the tendering process and controversial contract law doctrine of fundamental breach. Benjy Radcliffe commented on the decision here, following Paul Emanuelli’s survey of the Court of Appeal decision here.

    And the Golden Gavel Goes to…

    R. v. SINCLAIR (Binnie J.’s reasons). The Supreme Court’s elder statesman wins this Golden Gavel by a long shot this year. His sole dissent in this case is exceptional for its striking an appropriate balance between the majority and minority opinions, rightly finding that the substance of the Charter right to counsel includes more than just two telephone conversations, totaling six minutes, at the commencement of a five hour police interrogation. That was all the police were prepared to allow the accused, “tightening the noose around s. 10(b).” Binnie J. fills his reasons with such colourful turns of phrase as this, equating the majority’s position with saying, “You have reached counsel.  Keep your mouth shut.  Press one to repeat this message.”

    Next in Line: R. v. NATIONAL POST (Abella J.’s reasons).

    Most Disappointing Refusal of Leave

    Nominees

    CONACHER v. PRIME MINISTER OF CANADA, 2010 FCA 131, on the conduct of the Prime Minister in advising the Governor General to dissolve Parliament on a date other than those fixed in the Canada Elections Act.

    NEW BRUNSWICK HUMAN RIGHTS COMMISSION v. PROVINCE OF NEW BRUNSWICK, AS REPRESENTED BY THE DEPARTMENT OF SOCIAL DEVELOPMENT, 2010 NBCA 40, on the equality rights of a severely autistic man requiring a level of care that is unavailable in New Brunswick.

    R. v. DONALD PLANTE, 2010 QCCA 1025, on the offence of aggravated assault and the knowledge of an assailant of a victim’s exact condition at the time of the violent conduct.

    And the Golden Gavel Goes to…

    CONACHER v. PRIME MINISTER OF CANADA. The Coordinator for Democracy Watch launched this appeal to challenge the 2008 federal election call as violating the provisions of the government’s fixed-date election law (Bill C-16), or, in the alternative, constitutional conventions supporting the law. Had the Supreme Court granted leave and issued a ruling in the case, it would have prompted unnecessary but near-certain political push-back from either side of the aisle over what many contend was an open-and-shut case. And yet others would rather the court hear the appeal, as some uncertainty lingers about whether a constitutional convention had in fact arisen to support the fixed date legislation. It would seem among TheCourt staffers that there are more in the latter camp, and so the Golden Gavel goes.

    Please Try Again: NEW BRUNSWICK HUMAN RIGHTS COMMISSION v. PROVINCE OF NEW BRUNSWICK, AS REPRESENTED BY THE DEPARTMENT OF SOCIAL DEVELOPMENT.

    Most Exciting Grant of Leave

    Nominees

    CROOKES v. NEWTON, 2009 BCCA 392, on the possible legal ramifications of a website hyperlinking to defamatory material. Sona Dhawan canvassed the decision here.

    PUBLIC SERVICE ALLIANCE OF CANADA v. CANADA POST CORPORATION, 2010 FCA 56, on the the implementation of the legal principle that an employer may not pay men and women differently for work of equal value.

    SOCAN v. BELL CANADA, 2010 FCA 123, on the scope of the fair dealing defence in copyright law. Laura Achoneftos discussed the far reaching implications of this case here.

    VAN BREDA v. VILLAGE RESORTS LTD., 2010 ONCA 232, on the reformulated “real and substantial” connection test used to determine whether a Canadian court may assume jurisdiction over a dispute. Laura Achoneftos, Christine Kellowan, and Sona Dhawan anticipated the Supreme Court’s reasons here, here, and here.

    R. v. YAT FUNG ALBERT TSE, 2008 BCSC 211, on the constitutional validity of wiretaps issued pursuant to s. 184.4 of the Criminal Code.

    And the Golden Gavel Goes to…

    (tie!) CROOKES v. NEWTON and VAN BREDA v. VILLAGE RESORTS LTD. In the first year we’ve awarded Golden Gavels in this category, votes were evenly split between these two eagerly-awaited appeals. Crookes v. Newton promises to be an immensely interesting case not only to blawgers, what with any decision about the legal consequences of hyperlinking rather going to the core of what we do here at TheCourt.ca, but also scholars interested in defamation law more broadly. And the ruling in Van Breda v. Village Resorts is poised to become the leading case in private international law concerning Canadian jurisdiction over disputes. If it’s any indication of Van Breda‘s significance, a panel of five Court of Appeal justices issued the reasons below, an increase from the usual three. Panels of five only hear the most exceptionally important appeals.

    Distant Third: R. v. YAT FUNG ALBERT TSE.

    Justice of the Year

    Nominees

    ABELLA J., last year’s winner, for the continuing strength of her dissents in important civil liberties cases, including R. v. National Post, 2010 SCC 16, and Toronto Star Newspapers v. Canada, 2010 SCC 21.

    BINNIE J., if for no other reason than his exceptionally strong dissent in R. v. Sinclair, 2010 SCC 35.

    CROMWELL J., for the singular fact that he never once dissented this year.

    FISH J., for continuing to provide leadership as the Supreme Court’s resident criminal law expert with majority reasons in R. v. Levigne, 2010 SCC 25, and R. v. Morelli, 2010 SCC 8, as well as his dissent in R. v. Cornell, 2010 SCC 31.

    MCLACHLIN C.J.C., for doing much heavy lifting with reasons in Reference re Assisted Human Reproduction Act (with Charron J.), 2010 SCC 61 R. v. Sinclair, 2010 SCC 35 and Vancouver (City) v. Ward, 2010 SCC 27, among other decisions.

    And the Golden Gavel Goes to…

    BINNIE J. Sometimes a strong dissent goes a long way, as did Binnie J.’s in R. v. Sinclair. His reasons pave the way for the future development of the right to counsel and were unquestionably a highlight of the jurisprudential year. This award is further supported by his judgment for the court in R. v. National Post and influential dissent in Tercon Contractors v. British Columbia (Transportation and Highways). We would also like to recognize that the Supreme Court’s second-most-senior member is one of its biggest personalities, unafraid to stand alone or write in an idiosyncratic style. With persuasive logic, dazzling rhetoric, and characteristic wit, Binnie J. charted his own path as 2010’s Justice of the Year.

    Last Year’s Bride, This Year’s Bridesmaid: ABELLA J.

    Judgment of the Year

    Nominees

    CANADA (PRIME MINISTER) v. KHADR, 2010 SCC 3, on the Charter rights of Omar Khadr and possibility that the Canadian government may be compelled to request his repatriation from Guantanamo Bay. Cris Best and James Gotowiec wrote posts on the high profile decision here and here, with Ahsan Mirza and James Gotowiec anticipating the reasons here and here.

    REFERENCE re ASSISTED HUMAN REPRODUCTION ACT, 2010 SCC 61, on the constitutional law of federalism as well as important legal questions concerning the broad subject matter of the statute, ranging from in-vitro fertilization to human cloning. Dave Snow commented on the Supreme Court’s reference here.

    R. v. NATIONAL POST, 2010 SCC 16, on the interplay of journalistic-source privilege and ss. 2(b) and 8 of the Charter, protecting freedom of expression and the right to be free from unreasonable search and seizure respectively. The decision is thoroughly canvassed on this site, at the Supreme Court level by Cris Best here and here, and at the Court of Appeal level by Jakki Warkentin here, Kevin Tilley here, and Julian Ho here.

    R. v. SINCLAIR, 2010 SCC 35, on the interpretation of s. 10(b) of the Charter re the presence of defence counsel during a custodial interrogation. Laura Achoneftos originally covered the Supreme Court’s decision here, and later surveyed it as part of a new “iron triangle” of interrogation cases here. Rebecca Ross also discussed the case when it was first granted leave here.

    TORONTO STAR NEWSPAPERS v. CANADA , 2010 SCC 21, on the constitutionality of mandatory publication bans authorized under s. 517 of the Criminal Code. Christine Kellowan canvassed the Supreme Court’s ruling here, with Regina Lee and Ankur Bhatt discussing the case in its appellate context here and here.

    And the Golden Gavel Goes to…

    CANADA (PRIME MINISTER) v. KHADR. In due recognition of its jurisprudential significance this year, and after a narrow loss in the Constitutional Judgment of the Year category (strategic vote splitting?), Canada v. Khadr is rightfully awarded the Golden Gavel for 2010 Judgment of the Year. This decision captured headlines around the world for its confirmation that the s. 7 Charter rights of Omar Khadr, a now-convicted enemy combatant captured in the War on Terror, were infringed. He is the youngest person and only Canadian citizen held at the U.S. detention facility at Guanatnamo Bay. The Supreme Court decision also attracted strong criticism from many quarters, including on this site, for its failing to provide Khadr any satisfactory means to vindicate his Charter rights. Its decision granted nothing but declaratory relief that Khadr’s s. 7  right was infringed, stopping short of compelling the Canadian government to request his repatriation from the United States. No doubt sensing the inevitable fallout from any comment on the case, the Supreme Court also issued its reasons per curiam, speaking collectively and anonymously in all nine justices’ voices instead of just one. This elevates Canada v. Khadr into rare and exclusive company, joining Reference re Quebec Secession, Suresh v. Canada (Minister of Citizenship and Immigration), and Reference re Same Sex Marriage as per curiam opinions.

    First Runner-Up: REFERENCE re ASSISTED HUMAN REPRODUCTION ACT.

    That’s all, folks! On behalf of the entire editorial team at TheCourt.ca, thank you to all of our readers for your diligent court-watching, comments posted on the site or sent in about your favourites in this awards race, and, as always, your attention to all the special features on our site. Who will the Golden Gavel front-runners be next year?!


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