Simplification or Semantics? Evaluating Vavilov's Impact on Standard of Review

The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Quebec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination. Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.In my written submissions, I propose to address three issues: (1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Quebec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act? (2) Do the provisions of Bill C-4 alter the existing law? (3) Do the provisions of Bill C-4 require a constitutional amendment? A brief summary of my answers is as follows: (1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Quebec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6). A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Quebec judges on the Court have current knowledge of Quebec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Quebec courts and Quebec bar as the sole sources from which the Quebec seats on the Court could be filled.(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question. (3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.

In Canada, judicial and legislative developments in 2004 with respect to copyright have, in many respects, constituted a virtual revolution. The Supreme Court of Canada (SCC) released two major copyright cases in rapid succession: CCH Canadian Ltd. v. Law Society of Upper Canada (SCC, decision of 4 March 2004, CRI 2004, p. 82 with remarks by Lucas; 2004 SCC 13 [CCH]), which examined the scope of originality, authorization and fair dealing; and Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (SCC, decision of 30 June 2004, CRI 2005, p. 56, in this issue; 2004 SCC 45 [SOCAN]), which dealt with the application of the Canadian Copyright Act (R.S.C. 1985, c. C-42) to Internet transactions, the concept of authorization in this context, and the liability of ISPs (Internet Service Providers). The impact of these decisions lead to the highly controversial case of BMG Canada Inc. v. John Doe (Federal Court, decision of 31 March 2004, CRI 2004, p. 87 with remarks by Nitoslawski; 2004 FC 488 [BMG Canada]), in which the Federal Court held on the basis of CCH that downloading music files via peer-to-peer networks did not constitute copyright infringement. This article reviews the main themes (II.) of these cases (III.) and explores the significant expansion of user rights at the expense of author rights they have reflected. Clearly, if there is a revolution occurring in the courts, it is not one in which authors are winning (IV.).

The overarching objective of this paper is to provide a critical appraisal of the anti-terrorism provisions of Canada’s Immigration Act. The impact of these measures on refugees is the primary concern of this inquiry, but the author’s observations are relevant to the situation of other categories of non-citizens as well. Part 1 of the essay, published in the previous issue of Refuge, began by considering international efforts to address “terrorism,” the relevance of international humanitarian law to an assessment of acts of “terror,” and the nature of contemporary discourse on terrorism. The evolution of the current “admissibility” provisions in Canadian immigration law was examined with particular reference to national security threats and “terrorism.” In part 2, the author focuses on the role played by Canada’s Federal Court in legitimizing the national security scheme. The tensions in the current jurisprudence are considered with a more in-depth analysis of Suresh v. Minister of Citizenship and Immigration, a case pending before the Canadian Supreme Court. The paper concludes with suggestions for restoring human rights for refugees while safeguarding a genuine public interest in security.

Canada’s government structure has long used the idea of Peace, Order, and Good government to justify the selection and subsequent terms of long political majorities and appointed justices. This paper will be addressing the research question: should the justices of the Supreme Court of Canada be elected to increase Canadian democratic values or should they remain appointed? Currently the Supreme Court of Canada is selected by the Governor General on the advice of the Prime Minister. In answering this research question this paper will weigh to the pros and cons of both the current judiciary system and a judiciary section based on elections in order to prove that Supreme Court of Canada justices should stay appointed. A crucial factor in the selection of supreme court judges is the idea of judicial independence. Justices are not elected in order to ensure that there is no partisanship or inappropriate relationships between the judiciary and the legislature. It is argued that this is null and void as a result of the fact that the judges are effectively chosen by the head of government. In the Canadian system, there lies an important balance between the executive, legislative, and judicial branches; this balance of power relies heavily on the Supreme Court being a non-partisan last check on any bills that reach it from the House. This is contrasted by the fact that the Supreme Court of Canada has last say on a plethora of issues that affect the lives of all Canadians and Canada is a constitutional monarchy, meaning that the power is always supposed to be derived from the people. Any power of government in Canada must trace its power back to the people for it to be considered legitimate. After a compare and contrast of the effect that electing the Supreme Court of Canada will have on the judicial independence and the federal balance of power it is hypothesised that the Supreme Court of Canada should continue as an appointed body.

Factum of the Intervenor United Nations High Commissioner for Refugees ("Unhcr"). Suresh v. the Minister of Citizenship and Immigration; the Attorney General of Canada S.C.C. No. 27790. In the Supreme Court of Canada (On Appeal from the Federal Court of Appeal). Between: Manickavasagam Suresh Appellant - and - the Minister of Citizenship and Immigration the Attorney General of Canada Respondents

ABSTRACTAs the first empirical study of family law cases at the Supreme Court of Canada, this study explores potential factors that lead to female litigant success in family law cases. This study seeks to further our understanding of areas of law that, in particular, impact women and families. Analyzing the universe of decisions in family law cases decided by the Supreme Court of Canada from 1982 to 2008, I find support for justice gender affecting female litigant success in family law cases. The results suggest that female justices tend to support female litigants more often than their male colleagues, and that certain legal factors are also determinants of Supreme Court decisions in family law cases. Female litigants enjoy high rates of success at the Supreme Court of Canada, with both justice-specific and case-specific factors as driving forces in decision-making.

The authors of this article review the history and development of the general anti-avoidance rule (GAAR) in section 245 of the Income Tax Act (Canada), for the purpose of assisting in the analysis of recent decisions of the federal and provincial courts of appeal. They discuss the inherent difficulty in construing section 245 and outline various tests that the courts could have employed to interpret its provisions. The authors then review three of the four decisions in which the Supreme Court of Canada interpreted GAAR—<i>Canada Trustco</i>, <i>Mathew</i>, and <i>Copthorne</i>. With that background, the authors contrast the different approaches to the provincial general anti-avoidance rules taken, on the one hand, by the Alberta Court of Appeal in <i>Husky Energy</i> and <i>Canada Safeway</i>, the Ontario Court of Appeal in <i>Inter-Leasing</i>, and the BC Court of Appeal in <i>Veracity</i>, and, on the other hand, by the Quebec Court of Appeal in <i>OGT</i> <i>Holdings</i> and <i>Iberville</i>. They then compare and contrast those approaches with the pronouncements of the Supreme Court of Canada on how GAAR should be interpreted. The authors also discuss the approach taken by the Federal Court of Appeal in four recent GAAR decisions—<i>Univar</i>, <i>Oxford Properties</i>, <i>594710 British Columbia Ltd.</i>, and <i>Birchcliff</i>. They compare and contrast that approach with the approaches of the provincial courts, and consider whether the Federal Court of Appeal's approach is consistent with the Supreme Court of Canada's pronouncements on GAAR. Finally, the authors offer some advice for tax planners based on the recent GAAR decisions of the various courts of appeal.

This article takes an in-depth look at the law clerks and the role they play at the Supreme Court of Canada. Such an examination both informs prospective clerks on the nature of the position and promotes a better general understanding of how the judicial process operates at this level. The authors begin their analysis by looking at the history of the law clerks at the Supreme Court. Although the functions of the clerks have changed little since their introduction in 1968, the clerkship program has evolved with a changing Supreme Court, contributing to the institutions "coming of age." The authors then shift their attention to examining the present clerkship program. The article first reveals the manner in which the clerks are selected by the Court. Using data collected by a questionnaire sent to clerks of the 1991-93 terms, the authors also attempt to convey, in a general way, some sense of the people who have served at the Court in recent years. Next, the major functions performed by the clerks are described. While the clerks do have a great deal of responsibility, the authors dispel much of the criticism directed at United States Supreme Court clerks by stating that the law clerks at the Supreme Court of Canada do not have an improper degree of authority. The authors conclude that the clerking experience benefits both the clerks themselves and the procedures of the Court. As such, the law clerks are an entrenched and indispensable part of the judicial process at the Supreme Court of Canada.

Mr. Daviault, a 72-year-old alcoholic, was charged with dragging a 65-year-old woman from her wheelchair and sexually assaulting her. This occurred after Mr. Daviault had consumed eight beers and 35 ounces of brandy. The majority of the Supreme Court of Canada (S.C.C.) allowed evidence of intoxication to be presented as a to this general intent offense. The S.C.C. held that evidence of intoxication was available in situations where the accused could establish that the act was not voluntary or the requisite intent was not formed as a result of a state of intoxication akin to insanity or automatism. This created an exception to the general rule that evidence of was allowed to be presented as a only to specific intent offenses. As a result of the decision in Daviault,1 evidence of intoxication could be presented as a to offenses of both specific and general intent. Daviault and decisions that followed Daviault2 illustrate the problem Parliament faced: that an accused may lack the blameworthy mental state necessary to convict him of assault but certainly not be morally blameless. Outcries from society demanded immediate legislative changes. Parliament responded quickly by introducing Bill C-72,3 an amendment to the Criminal Code intended to undo the change in the law that resulted from the S.C.C. decision in Daviault. Parliament proposed to return the law to its previous state by making it clear that the of was not available to any general intent offenses regardless of the level of intoxication. This paper puts the proposed amendment into context and evaluates Bill C-72 under the Canadian Charter of Rights and Freedoms.4 The first section of this paper deals with the case law background of how criminal law has dealt with the intoxicated offender. The second section takes a detailed look at Parliament's suggested solution, Bill C-72. Sections three through five give an analysis of the Charter rights that may be infringed by the bill and evaluates the bill's chance of surviving a Charter challenge under s. 1. I: The case law before and after Daviault A) The law before5 the decision in Daviault It is common to talk of the defense of drunkenness; however, is not a defense. The more accurate terminology would be that there was a lack of mens rea. In this paper the term defence of drunkenness is used, but it is important to remember that evidence of intoxication has the effect of calling into question whether an essential element of the offense has been proved. If the Crown is unable to convince the trier of fact beyond a reasonable doubt of all the essential elements of the offense, then the accused must be acquitted. The law draws a distinction between crimes that require specific intent and crimes that require only general intent. A general intent offense requires such a minimal mental element that the voluntary act itself could satisfy the necessary intent component. Drunkenness was believed to be incapable of negating this minimal intent. For a specific intent offense, the accused must be able to form the more specific intent that is set out in the Criminal Code. This specific intention cannot be inferred from the act. If a person's mind is severely clouded by alcohol or drugs to the point that he or she lacks the ability to form the specific intent to commit the crime, the accused must be acquitted. Before Daviault, evidence of intoxication was allowed before the trier of fact in relation to only specific intent offenses. General intent offenses required such a minimal mental element that the voluntary act itself could satisfy the necessary intent component. Extreme intoxication had been raised before in the S.C.C., but only in side comments.6 The issue of extreme intoxication as a in general intent offenses was unresolved. The S.C.C. was given the opportunity to provide an answer to this question in Daviault. …

In the paper by Hawryluck et al. examining Cuthbertson v. Rasouli, the suggestion is made that the Supreme Court of Canada (SCC) changed the rules of engagement around end-of-life decisions when doctors and patients disagree. In fact, the SCC did not disturb prior decisions on the role of experts and the jurisdiction of the courts and restated what has always been the case, i.e., the withdrawal of treatment is treatment and, as such, requires consent. The news for physicians is good. The court neither overreached nor tied the hands of physicians when it cited ‘‘health-related purpose’’. Important medical ethical principles remain in place and will continue to guide complex treatment choices as doctors and patients struggle to do the right thing at the end of life. The details of Hawryluck et al. warrant further discussion. A deeper analysis is required concerning the standard of care and the concept of medical benefit and what the SCC intends by citing ‘‘health-related purpose’’. Future legal actions with the same question as that contained within Cuthbertson v. Rasouli will, and should always, be decided in the same manner as Cuthbertson v. Rasouli. Hawryluck et al. also misunderstand the role of the Ontario Consent and Capacity Board (CCB). An examination and understanding of the medical ethical principles at stake will provide the framework for a way forward. Standard of care describes the common medical practice of prudent physicians at a particular time and in a particular circumstance. It is a majority opinion that firms up before the courts but loosens up at the bedside. The standard of care and the obligation of the physician have always fallen strongly in favour of preserving life. Can the standard of care alone be a reason to discontinue treatment? If the SCC had considered the standard of care, it is false to suggest that it would have carried the day and found in favour of the doctors. The court has never conceded that only doctors decide the extent of medical expertise. The court has the power to adjudicate on issues that it considers within its authority to do so and has made this point before. In 2001, in Walker Estate v. York Finch General Hospital et al., the SCC found that a Red Cross pamphlet given to potential blood donors to discourage donation in groups at high risk of infection with HIV was inadequate despite evidence to the contrary by two medical experts. This case showed that the court would not allow doctors to decide on questions that do not require special skills or expertise. If an issue is outside of the knowledge of the courts, it will rely on experts, but it is hubris to suggest that the question of a life worth living is a matter of expert medical opinion. Only the individual knows the value of his or her own life. In the use of the term ‘‘health-related purpose’’, the SCC points out that the Ontario legislature sought to make clear the need for consent for any treatment. Health-related purpose unambiguously affirms that the withdrawal of treatment is treatment and that all treatment requires consent. If the capacity to consent is at issue, the proper place for disputes regarding consent reside within the CCB. The CCB was originally created to review involuntary committal under the Mental Health Act. The CCB panel traditionally consists of lawyers, laypersons, and a psychiatrist. In involuntary committal, a psychiatrist on

Justice Iacobucci and the 'Golden and Straight Metwand' af Canadian Tax Law † David G. Duff Associate Professor, Faculty of Law, University of Toronto. I Introduction Among the many areas of law that Justice Iacobucci has shaped through his judgments at the Supreme Court of Canada, perhaps none has felt his influence as greatly as Canadian income tax law. Of twenty-seven substantive income tax cases decided by the Court while he was a member,1 [End Page 525] Justice Iacobucci individually wrote decisions in sixteen2 and co-authored judgments in four.3 Of these twenty decisions, fifteen were unanimous,4 three were majority decisions,5 and only two were dissents.6 During his years at the Supreme Court of Canada, Justice Iacobucci dominated Canadian income tax law as no other member of the Court before him ever did. More importantly, Justice Iacobucci's tax judgments effected a fundamental shift in the Supreme Court of Canada's approach to Canadian tax law – away from the emphasis of the late 1970s to the early 1990s on the purpose of the relevant legislation and the economic or commercial reality of transactions toward an emphasis on the statutory text and the legal form of transactions characteristic of traditional Anglo-Canadian tax jurisprudence. As an examination of some of his most important tax decisions makes clear, this shift was motivated by a conception of the rule of law (at least as applied to Canadian tax law) that emphasized judicial restraint, legal certainty, and individual liberty. In this respect, in the words of Elizabethan jurist Sir Edward Coke, Justice Iacobucci's tax decisions consistently sought to replace the 'the incertain and crooked cord of discretion' with 'the golden and straight metwand of the law.'7 The article proceeds as follows. Part ii provides essential background to Justice Iacobucci's tax decisions by explaining the traditional approach to tax statutes adopted by English and Canadian courts and the more purposive and substantive approach adopted by us courts and favoured by [End Page 526] the Supreme Court of Canada from the late 1970s to early 1990s. Part III reviews four key tax decisions written by Justice Iacobucci and released by the Court between 1994 and 2002, showing how their emphasis on the text of the relevant statutory provision and the legal form of transactions differed from the Court's purposive and substantive approach of the late 1970s to the early 1990s. Part iv evaluates the merits of this renewed emphasis on the statutory text and legal forms, examining the reasons why Justice Iacobucci adopted this approach to tax statutes and its connection to his conception of the rule of law. Part v concludes. II Background Judicial approaches to the application of tax statutes involve two related aspects: interpretation of the relevant statutory text and characterization of the various transactions and relationships to which the statute applies.8 To the extent that taxpayers engage in tax-motivated transactions that contradict the scheme or purpose of the relevant statutory text, these aspects are necessarily linked, since textual interpretive approaches are apt to characterize transactions without regard to taxpayer motivations, while purposive approaches are more likely to characterize or re-characterize transactions in light of the statutory scheme. As background to Justice Iacobucci's tax decisions, this part of the paper reviews the traditional Anglo-Canadian and American judicial approaches to tax statutes, as well as the approach favoured by the Supreme Court of Canada from the late 1970s to the early 1990s. A Traditional Anglo-Canadian and American Judicial Approaches to Tax Statutes Following early uk tax decisions, Canadian courts originally adopted a narrow approach to tax legislation, interpreting tax statutes in a strict and literal manner and resolving any ambiguous taxing provisions in favour of the taxpayer. In his judgment in the House of Lords 1869 decision in Partington v. Attorney-General,9 for example, Lord Cairns declared that 'the principle of all fiscal legislation' was that...

The duty to consult is an Aboriginal right protected under s. 35 in the Constitution Act, 1982. This article analyzes 11 Supreme Court of Canada (SCC) decisions concerning the duty to consult and distinguishes between the SCC’s promotion of the purpose and practice of reconciliation. This distinction more accurately depicts how the SCC understands why and how the Crown should advance reconciliation in the context of the duty to consult. This article finds that the SCC has consistently stated that reconciliation is required due to the existence of Aboriginal rights and the assertion of Crown sovereignty, creating an obligation to reconcile Indigenous and non-Indigenous societal interests. However, the practices outlined by the SCC on how the Crown can fulfill the duty suggest that the Crown is given a wide latitude to pursue its legislative objectives, which may result in the unjust infringement of Aboriginal rights over time. For instance, the Crown has discretion over the communication of decision-making to affected Indigenous parties and the balancing of Indigenous and non-Indigenous societal interests. Consequently, the practices of the duty to consult call into question the extent to which the duty can uphold the purpose of reconciliation between the Crown and Indigenous peoples.

<p>The inventive concept in patent law, central to the Supreme Court’s test for whether a patent is invalid because of obviousness, lacks clarity. This article discusses that lack of clarity with reference to the vague and inconsistent treatment of the inventive concept in the jurisprudence of the Federal Court, Federal Court of Appeal and Supreme Court of Canada. In particular, this article discusses two unanswered questions: whether the inventive concept is a necessary part of the obviousness inquiry and what the inventive concept actually means. In answering the second question, this article explores three discrete stages in the evolution of the inventive concept: (1) the genesis of the inventive concept in Canadian jurisprudence in Apotex Plavix; (2) a notable dialogue regarding the interpretation of the inventive concept between the Federal Court and Federal Court of Appeal in Apotex Combigan; and (3) the persisting confusion surrounding the current meaning of the inventive concept. This article concludes by urging appellate courts to provide clearer guidance with respect to the significance and meaning of the inventive concept.</p>

<p>The inventive concept in patent law, central to the Supreme Court’s test for whether a patent is invalid because of obviousness, lacks clarity. This article discusses that lack of clarity with reference to the vague and inconsistent treatment of the inventive concept in the jurisprudence of the Federal Court, Federal Court of Appeal and Supreme Court of Canada. In particular, this article discusses two unanswered questions: whether the inventive concept is a necessary part of the obviousness inquiry and what the inventive concept actually means. In answering the second question, this article explores three discrete stages in the evolution of the inventive concept: (1) the genesis of the inventive concept in Canadian jurisprudence in Apotex Plavix; (2) a notable dialogue regarding the interpretation of the inventive concept between the Federal Court and Federal Court of Appeal in Apotex Combigan; and (3) the persisting confusion surrounding the current meaning of the inventive concept. This article concludes by urging appellate courts to provide clearer guidance with respect to the significance and meaning of the inventive concept.</p>

Each year, the Macdonald-Laurier Institute for Public Policy recognizes a “Policy-Maker of the Year”. Past recipients have included former Bank of Canada Governor Mark Carney and Foreign Minister John Baird, who have had a tremendous impact on our country’s economic stability and international stature, respectively.One could argue that, while people in such positions are undoubtedly influential, there is another entity that is rarely acknowledged for its influence on policy, but in the last year has changed Canadian public policy in wide-reaching and long-lasting ways – the Supreme Court of Canada (SCC). This paper examines the Court’s 10 most significant judgments of the last 12 months in terms of their importance and policy implications, on issues ranging from the Senate reform reference to the Bedford case challenging Canada’s prostitution laws to the Tsilhqot’in Aboriginal land claim in BC.This analysis comes at a time when media commentators have characterized recent high court decisions as a string of “losses” for the federal government. So what does the evidence show?• The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring;• The Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and• The federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.In the last year, the Court has effectively taken Senate reform off the federal agenda for the foreseeable future, torpedoing both the governing Conservatives’ reform program and the Opposition New Democrats’ policy to abolish the Senate. The Court has struck down much of Canada’s prostitution legislation, resulting in a dramatic rewriting of the law by the current government. It has changed the landscape in parts of Canada for Aboriginal rights, affected tools available for fighting crime and terrorism, and cast into question how future appointments to the Court from Quebec will be managed. One would be hard-pressed to find another actor in Canada who has had a greater impact on such a wide range of issues than the Court has in the last year, such that the moniker Policy-Maker of the Year is appropriate. The Court, no doubt, would resist such a label on the view that it simply applies the law as part of its constitutional mandate. But the policy impact of its recent decisions is clear.