This article summarizes Gowlings' picks for the most important decisions from the Supreme Court of Canada in 2015.
Carter v. Canada (Attorney
General)
The SCC determined that the federal criminal laws are inapplicable
to physician-assisted dying. The Court decided that s. 241(b) of
the Criminal Code, which pertains to aiding suicide, and
s. 14 of the Criminal Code, which pertains to consenting
to the infliction of death, were void to the extent that they
denied individuals the right to seek a physician's assistance
in dying and therefore violated the s. 7 right to life, liberty and
security. In doing so, the SCC determined that it was properly open
to the trial judge to reconsider the Rodriguez decision in
light of new legal issues and fundamental changes in legislative
and social facts and stated "stare decisis is not a
straightjacket that condemns the law to stasis". Following the
Carter decision, gravely ill individuals will now have the
right to seek an assisted death within the medical context of a
physician-patient relationship. 2015 SCC
5
R. v. Smith
The accused challenged the constitutionality of the
prohibition on possession of non-dried forms of medical marijuana
on the basis that it limits the s. 7 Charter right to
liberty of the person. He was charged with possession and
possession for purpose of trafficking of cannabis contrary to ss.
4(1) and 5(2) of the Controlled Drugs and Substances Act
because he sold edible and topical cannabis products contrary to
the Marihuana Medical Access Regulations, which limits
lawful possession of medical marihuana to dried marihuana. The SCC
found that the prohibition deprived medical marihuana users of
their liberty by imposing a threat of imprisonment and by
foreclosing reasonable medical choices to prescribed medical
marihuana users. Further, the SCC stated "by forcing a person
to choose between a legal but inadequate treatment and an illegal
but more effective one, the law also infringes security of the
person". As a result of the decision, the prohibition against
non-dried forms of medical marihuana was declared of no force and
effect. 2015 SCC 34
Tervita Corp. v. Canada (Commissioner of
Competition)
A majority of the Court held that the relevant
merger was likely to substantially prevent competition. The SCC
found that the Tribunal and the Federal Court of Appeal incorrectly
applied the efficiencies defence under section 96 of the
Competition Act ("Act"), as the Commissioner of
Competition ("Commissioner") used the improper
methodology to quantify the merger's anti-competitive effects.
The SCC upheld the Tribunal's conclusion that the
Tervita-Babkirk merger was likely to substantively prevent
competition and clarified the two-part test for analyzing a
"prevention" of competition as well as the application of
the efficiencies defence under section 96. The SCC used a
forward-looking analysis in determining whether the merger would
prevent competition and clarified the methodology to determine
whether efficiency gains will be "greater than, and will
offset" the anti-competitive effect of the merger. The case of
Tervita represents the first SCC merger jurisprudence in
seventeen years. It also marks the very first time the SCC has
directly explored the merger efficiency defence provisions of the
Act. 2015 SCC 3
Saskatchewan Federation of Labour v.
Saskatchewan
The SFL and the intervener unions challenged the
constitutional validity of The Public Service Essential
Services Act ("PSESA") and The Trade Union
Amendment Act ("TUA"). The PSESA limits the
ability of certain public sector employees from participating in a
strike action by designating their services as
"essential". In addition, the TUA increased the
number of written employee support required for unionization. The
appellants argued that the legislation infringed the freedom of
association of employees guaranteed by section 2(d) of the
Charter. The SCC found that the PSESA
substantially interfered with the freedom of public sector
employees to engage in meaningful strike action. The Court deemed
that the provisions of the PSESA go beyond what is
reasonably required to ensure the uninterrupted delivery of
essential services during a strike. The PSESA transferred
all power previously held by the unions to the employer. The
majority of the Court expressed their understanding of the
significance of strike action for collective bargaining, and
adhered to the "substantial interference" test of
Health Services and of Mounted Police. This
decision provides greater protections for workers and prevents
governments from expanding the definition of what is an
"essential service" in order to reduce workers'
labour rights. 2015 SCC 4
Mounted Police Association of Ontario v. Canada
(Attorney General) and Meredith v. Canada
(Attorney General)
The Mounted Police Association of Ontario v. Canada (Attorney
General) case is the freedom of association of members of the
Royal Canadian Mounted Police ("RCMP"). Members of the
RCMP challenged their exclusion from the PSLRA and argued
that the exclusion infringed on their freedom of association. The
SCC concluded that the impugned provision of the PSLRA is
unconstitutional. In doing so, the Court overturned the
Delisle v. Canada (Deputy Attorney General),
[1999] 2 S.C.R. 989 case, in which it previously held that the
exclusion of RCMP members from collective bargaining under the
PSLRA's predecessor legislation did not infringe the
freedom of association protected by s. 2 (d) of the
Charter. In evaluating the sufficiency of the SRRP, the
Court invoked two core principles — choice and independence
—both of which were lacking in the RCMP's
labour-relations program. This case is very significant for
clarifying the standard that must be met for showing that an
impugned law interferes with collective bargaining rights. The case
is also significant because it provides greater support for the
rights and abilities of workers to unionize in Canada. 2015
SCC 1
In Meredith, the SCC upheld the government's decision to unilaterally roll back scheduled wage increases for RCMP members. The government had passed the Expenditure Restraint Act ("ERA"), which codified the reduced wage increases for RCMP members, against the recommendation of the the RCMP Pay Council, and also set out identical wage increases for all public servants. The majority of the Court stated that while s. 2(d) of the Charter guarantees a right to a meaningful labour relations process, it does not guarantee a particular outcome. In rendering their decision, the majority of the Court found that the ERA did not substantially interfere with the process so as to infringe RCMP members' freedom of association. The limits imposed by the ERA were shared by all public servants, were consistent with the going rate reached in agreements concluded elsewhere in the core public administration and did not preclude consultation on other compensation-related issues, either in the past or the future. This decision is important in clarifying the limits of the fundamental freedom of association. 2015 SCC 2
Chevron Corp v. Yaiguaje
The Court clarified that the real and substantial
connection test does not apply to a Canadian court taking
jurisdiction over the recognition and enforcement of a foreign
judgment. In doing so, the Court paved the way for further
proceedings on the merits of an Ecuadorian judgment by a group of
judgment creditors attempting to bring an international legal saga
to the Canadian courts. The Court found that in Canadian private
international law, there is a fundamental distinction between
jurisdiction of a court to hear a claim at first instance, and the
jurisdiction of a court to recognize and enforce a foreign
judgment. The real and substantial connection test, and its
associated "presumptive connecting factors," previously
developed by the Court in Club Resorts Ltd v Van Breda,
2012 SCC 17, apply to cases where Canadian courts are asked to take
jurisdiction over a foreign defendant at first instance for the
case to be tried on its merits. The real and substantial connection
test must be met for a Canadian court to assume jurisdiction to try
such a case. However, when a Canadian court is asked to
recognize and enforce a foreign judgment already obtained, the same
considerations do not exist. Instead, it is "the act of
service on the basis of a foreign judgment that grants an Ontario
court jurisdiction over the defendant." Once service is
effected, the Canadian court need only consider whether the foreign
court that rendered judgment had a real and substantial connection
with the litigants or the subject matter of the dispute. If it did,
then the principle of international comity underlying the system of
private international law requires that the Canadian court
recognize and enforce the foreign judgment, subject to judicial
discretion to decline to enforcement.
2015 SCC 42
Yukon Francophone School Board, Education Area #23
v. Yukon (Attorney General)
The SCC clarified the test for judicial bias in the
Yukon Francophone School Board decision. This case
involves a language-rights dispute in which the Yukon's school
board sued the government in 2009 for reallocating funds away from
minority language education. The SCC concluded that the threshold
for a finding of a reasonable apprehension of bias was met in the
circumstances. In addition to several disparaging and disrespectful
remarks made by the trial judge, and directed at counsel for the
Yukon, several incidents occurred which, when viewed in the
circumstances of the entire trial, lead inexorably to this
conclusion. Although the trial judge's conduct gave rise
to a reasonable apprehension of bias, the SCC found that the Court
of Appeal erred when it concluded that the trial judge's
current service as a governor of the francophone philanthropic
association substantially contributed to a reasonable apprehension
of bias. 2015 SCC 25
Loyola High School v. Quebec (Attorney
General)
The SCC ruled that the Québec Minister of
Education's decision to disallow Loyola's proposal to teach
an Ethics, Religion and Culture ("ERC") course from a
Catholic perspective limited Loyola's freedom of religion more
than was necessary given the statutory objectives. This case
concerned an application by Loyola High School ("Loyola")
for an exemption from the requirement to teach the ERC as per the
Minister's direction. Instead, Loyola, being a private Catholic
institution, applied to teach ERC in an equivalent manner. A
private school such as Loyola is entitled to provide an alternative
but "equivalent" program if the Minister approves its
content. The Minister denied Loyola's request on the basis that
teaching the ERC from a Catholic perspective was not in accordance
with the intention of the ERC, therefore Loyola's proposed
program was not "equivalent". The SCC had to
"balance robust protection for the values underlying religious
freedom with the values of a secular state" (para 43).
The majority of the Court applied the proportionality analysis as
established in Doré while the concurring judges
applied a s. 1 test. Both arrived at the conclusion that the
Minister's decision to deny the exemption was a measure that
undermined the character of Loyola as a religious institution and
infringed its religious freedom. 2015 SCC
12
Mouvement laïque québécois v.
Saguenay (City)
In a case that will likely have repercussions throughout
Canada, the SCC held that the Mayor's recitation of a Catholic
prayer while making the sign of the cross before public council
meetings was discriminatory and breached the State's duty of
neutrality. The Court upheld the Quebec Human Rights Tribunal's
finding of discrimination and ruled that the State's duty of
neutrality means that a state authority cannot make use of its
powers to promote or impose a religious belief. The Court
emphasized "neutrality is required of institutions and the
state, not individuals". While the decision is based on the
Québec Charter, the province's legislation
corresponds to the Canadian Charter of Rights and
Freedoms' s. 2(a) protecting freedom of religion. As a result,
this will inevitably have a strong impact on municipal councils
across Canada, and perhaps will apply to all three levels of
government. 2015 SCC 16
R. v. Nur and R. v.
Charles
The majority held that the mandatory minimum sentences
for possessing prohibited or restricted firearms that are loaded or
kept with readily accessible ammunition are unconstitutional in
that they violated s. 12 of the Charter. At the heart of
this decision is a fascinating debate about the appropriate
constraints on the use of "reasonable hypotheticals" in
determining the constitutionality of criminal legislation. Writing
for the majority, the Chief Justice reasoned that the mandatory
minimum sentence required by s 95(2)(a) was not cruel and unusual
in most circumstances, including in the actual cases of Nur and
Charles. However, the Chief Justice opined that applying the
mandatory minimums in some reasonably foreseeable cases would
violate s 12 of the Charter. When applying the reasonably
foreseeable analysis, "the question is what situations may
reasonably arise, not whether such situations are likely to arise
in the general day-to-day application of the law." Because the
mandatory minimums were grossly disproportionate in reasonable
hypothetical examples, the majority concluded that the mandatory
minimums constituted cruel and unusual punishment. Similarly,
because the mandatory minimums applied to morally non-blameworthy
conduct, they could not be justified under s 1 of the
Charter. 2015 SCC 15
Henry v. British Columbia (Attorney
General)
The SCC reviewed whether a person who was wrongfully
convicted due to a breach of his constitutional rights can claim
Charter damages based on the negligent but non-malicious
conduct of the Crown Attorney. Mr. Henry was convicted in 1983 of
10 sexual offence counts, was declared a dangerous offender and
sentenced to an indefinite period of incarceration. He remained
incarcerated for almost 27 years until he was granted bail in 2009
and subsequently acquitted in October 2010. Mr. Henry then sought
damages against the prosecutors for the injuries he alleges he
suffered as a consequence of the wrongful conviction and
incarceration. The Court declined to follow the existing case law
with respect to the test for malicious prosecution and the
necessity to find intent on the part of the prosecutor. Instead,
the test that the majority proposed focuses on an intentional
decision to withhold relevant information and actual or imputed
knowledge of the consequences of the failure to disclose. This case
is important in that, until now, the jurisprudence only permitted
claims for malicious prosecution against a prosecutor who
intentionally acted to subvert justice. The SCC allowed Mr. Henry
to amend his pleadings to include a claim for Charter
damages against the Crown for non-malicious acts and
omissions. 2015 SCC 24
Canada (Attorney General) v. Federation of Law
Societies of Canada
The SCC struck down record keeping and warrantless search
provisions of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act ("Act") as they apply to
lawyers because they infringed s. 7 and 8 of the Charter.
In order to reduce the risk that financial intermediaries may
facilitate money laundering or terrorist financing, the
Act required financial intermediaries, including
barristers and solicitors, to collect, record and retain documents
verifying the identity of those on whose behalf they pay or receive
money. The Act also allowed an agency to search for and
seize that material and imposed fines and penal consequences for
non-compliance. The Federation of Law Societies commenced a
constitutional challenge to the Act as it applied to the
legal profession. The Court determined that the provisions that
allowed for warrantless searches inherently risked breaching
solicitor- client privilege and were therefore unconstitutional.
With regards to the s. 8 violation, the Court recognized a new
principle of fundamental justice: the state cannot impose duties on
lawyers that undermine their duty of commitment to their
clients' cause. The decision stands for the protection of
solicitor-client privilege in Canada and establishes a new
principle of fundamental justice that protects the lawyer's
commitment to the client's cause. 2015 SCC
7
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