The History and Administration of Third‐Party Interventions at the Supreme Court of Canada

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.

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.

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.

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 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.

The US Supreme Court typically sits en banc. Historically, the House of Lords in the UK sat in panels of five. Its new successor, the UK Supreme Court, now sits in panels of five, seven or nine justices. A similar practice has long been in place at the Supreme Court of Canada, which routinely sits in panels of five, seven, or nine justices. We develop a formal model of the optimal choice of panel size. The model suggests that in the presence of scarce judicial resources, panel sizes can be deliberately adjusted to improve allocational e ciency. Using data from appeals heard by the Supreme Court of Canada from 1984-2005, we uncover evidence that the Court may be using varied panel sizes in a manner consistent with the predictions of our model.

The Supreme Court of Canada (SCC) has stronger norms of consensus and preferences for unanimous decisions than its American counterpart. Given this powerful preference for collegial and unanimous decisions, what causes it to break down? Previous literature has left this question largely unexamined, and no empirical research examines how gender affects decisions to dissent on the Supreme Court of Canada. This article thus fills this lacuna by analyzing the role of gender in dissenting behavior on the Supreme Court of Canada from 1984 to 2015. We analyze dissenting behavior in criminal and civil liberties cases, as well as sexual assault and equality cases, which may drive previously identified gender voting differences. We find that women dissent more frequently than their male peers, especially when their policy preferences diverge. Furthermore, we examine three competing theories of social dynamic panel effects to determine how the increased presence of women impact women’s decision to dissent. We find evidence of some self-silencing by women, where women become emboldened to dissent more as more women join the panel. Gender diversification explains dissenting behavior at the Canadian Supreme Court more accurately and across a broader array of case categories than institutional or case-specific legal factors.

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...

In a ground-breaking study on the nature of judicial behaviour in the Supreme Court of Canada, Donald Songer, Susan Johnson, C.L. Ostberg, and Matthew Wetstein use three specific research strategies to consider the ways in which justices seek to make decisions grounded in good law and to show how these decisions are shaped within a collegial court. The authors use confidential interviews with Supreme Court justices, analysis of their rulings from 1970 to 2005, and measures that tap their perceived ideological tendencies to provide a critical examination of the ideological roots of judicial decision making, uncovering the complexity of contemporary judicial behaviour. Examining judicial behaviour through the lens of three different research strategies grounded in qualitative and quantitative methodologies, Law, Ideology, and Collegiality presents compelling evidence that political ideology is a key factor in decision making and a prominent source of conflict in the Supreme Court of Canada.

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.

Self-Represented Litigants (SRLs) are persons who appear in court and tribunal proceedings without a lawyer. They are rarely successful at the Supreme Court of Canada. Despite SRLs being the subject of considerable attention as a facet of the “access to justice crisis,” this article reports the first statistical quantitative investigation of a Canadian SRL population. This article examines all of the SRL leave to appeal applications at the Supreme Court of Canada in 2017, categorizing them by party type, legal issue, and level of sophistication. No procedural obstacles were identified to SRL participation at the Supreme Court. Instead, the failure of SRLs in Supreme Court proceedings results from the substance of their filings.

Canada was created through French, and later English colonisation imposed upon Indigenous nations in the seventeenth through the nineteenth centuries. Courts began in early eighteenth-century Nouveau France applying French civil law, followed by the British common law system. Canada was officially born by the British North America Act, 1867, passed by the British Parliament upon request from political leaders in four colonies. Quebec remains the only civil law jurisdiction within a common law and mostly English sea. Section 101 empowered the Canadian Parliament to establish a ‘General Court of Appeal,’ but internal debate delayed its creation until 1875. The Supreme Court of Canada (‘SCC’ or ‘Supreme Court’) has an unusual history, since its decisions were appealable to England in criminal cases until 1933 and in civil matters until 1949. Its importance grew considerably after it became the final court whose decisions are binding on all Canadian courts, tribunals, and domestic governments. Fundamental constitutional reform in 1982, including the entrenchment of the Charter of Rights and Freedoms, has increased its impact. Judgments from final appellate courts in common law jurisdictions circulate quite widely among English-speaking nations, especially when dealing with challenging newer legal issues. This chapter will also describe the Supreme Court’s use of foreign and international law judgments and its relationship with foreign national and international courts.

Abstract. This paper demonstrates that an important and overlooked guide to understanding Canadian and US Supreme Court decision making in tax cases is the “default,” or the party to whom the court will decide in favour of if tax language is ambiguous. While statutory interpretation methods influence the overall manner in which courts approach tax-law decision making, the default is a more concrete guide to evaluating Canadian and US Supreme Court decisions. The paper first explores the statutory interpretation approaches referenced in Canadian and American Supreme Court tax law cases. The paper then examines the histories of defaults, including the cases in which they emerged and the rationales given for their adoption. Third, based on original research, the paper concludes that defaults have a profound effect on income tax decisions by, in Canada, the Supreme Court favouring the taxpayer and, in the United States, the Court deferring to the Internal Revenue Service. Résumé. Cet article démontre que la partie à laquelle les Cours suprêmes du Canada et des États-Unis donnent gain de cause lorsque la loi est ambiguë, appelée “ défaut ”, constitue un point de repère important, souvent négligé, pour comprendre les décisions de ces tribunaux en matière de droit fiscal. Bien que les méthodes d'interprétation de la loi influencent la prise de décision de ces tribunaux dans des causes fiscales, le “ défaut ” représente un point de repère plus concret pour évaluer les décisions des Cours suprêmes du Canada et des États-Unis en ces matières. L'article qu'on va lire examine d'abord les interprétations de la loi rencontrées dans la jurisprudence fiscale des Cours suprêmes du Canada et des États-Unis. Il présente ensuite l'historique des “ défauts ”, les cas où ils ont surgi, ainsi que les arguments et les justifications qui les accompagnent. Enfin, l'article conclut, sur la base d'une recherche inédite, que les “ défauts ” ont des effets profonds sur les décisions des Cours suprêmes en matière de droit fiscal tant au Canada, où la Cour suprême donne le plus souvent gain de cause au contribuable, qu'aux États-Unis où la Cour suprême se range plutôt à l'avis de l'Internal Revenue Service.