Canadian Supreme Court Research Articles

Reconsidering Luxton in the Post-Nur Revolution: A Brief Qualitative and Quantitative Analysis of Recent Challenges to Mandatory Minimums and Other Sentencing Provisions

In the 1990 decision of R v Luxton, the Supreme Court of Canada (SCC) upheld the mandatory minimum for first-degree murder as constitutional in large part because of the existence of the Faint Hope Clause Regime, which was abolished in 2011. Since then, Parliament has also codified proportionality as the fundamental principle of sentencing. Similarly, the SCC has rendered the Gladue line of cases. These changes suggest that the reasons for upholding Luxton may no longer be as valid now as they were back then. Recognizing that legal argument is as much a sociological phenomenon as it is about the law, the thesis of this article is that it is only recently that challenges to mandatory minimums have gained sufficient momentum to give a challenge to Luxton a fighting chance. Nur sent a strong signal to lower courts that unjustified constraints on their ability to impose proportionate sentences would no longer be tolerated. To quantitatively and qualitatively test this theory, the inventory of cases from MMS.watch will be analyzed to show that Nur sparked a revolution that has not only seen an increase in the number of challenges brought against mandatory minimums, but an increase in their success rate and reach. Then, using three key 2020 decisions from three different Appellate Courts, recent trends in judicial thinking that demonstrate both a boldness that is finally ready to take on Luxton, as well as support for some of the reasons for overturning Luxton, will be highlighted.

A Deposit in a Pre-Incorporation Transaction is Still a Deposit: A Comment on Benedetto v 2453912 Ontario Inc

In Benedetto,the promoter of a pre-incorporation transaction argued that a deposit had to be returned to him when the transaction did not close. His reason was that there was language in the agreement to indicate that he was invoking the protection of subsection 21(4) of the Business Corporations Act (Ontario).The Court refused. While I agree with the ultimate result in the case, there are three basic issues that will be considered in this Comment. After laying out the reasoning of the Court of Appeal (in Part II), I turn to a fundamental concern that lies at the heart of my discomfort with this ruling, namely, my view that any deposit is inextricably intertwined with the contract that provides for it. This runs directly counter to the reasoning provided by the Court of Appeal (the focus of Part III). In Part IV, I suggest that there is a more direct route to deal with the issue of deposits in pre-incorporation transactions that use language that is reasonably considered a subsection 21(4) inclusion. Essentially my argument is three-fold. The first argument is one of contractual interpretation. Drawing upon both recent case law from the Supreme Court of Canada, as well as older case law from other courts, I suggest that a proper interpretation of the contract at issue (and others like it) would have led to a narrow interpretation of the language of the subsection 21(4) inclusion. Narrowly construed, the inclusion does not force the payment of the deposit, but also does not mandate its return. Second, the tort of deceit may also have a role to play here. I then suggest that there was in fact a third route that would have allowed the Court to refuse to return the deposit, namely, the law of restitution. Finally (in Part V), I will review the academic commentary that immediately followed the release of this judgment, suggesting that the Court of Appeal’s conclusion was problematic. I will suggest that the commentary, which criticizes the Court of Appeal, is itself flawed.

‘Within or outside Canada’: The Charter’s application to the extraterritorial activities of the Canadian Security Intelligence Service

Since the swift passage of the Anti-Terrorism Act in 2015, the Canadian Security Intelligence Service (CSIS) has had the unprecedented and highly controversial authority to take ‘reasonable and proportionate’ measures to reduce threats to Canadian security. While there are some limits to the types of measures CSIS can employ, the Canadian Security Intelligence Service Act permits the use of measures that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms so long as they are judicially authorized by the Federal Court. As new threats proliferate around the world, it is anticipated that CSIS will increasingly carry out this mandate overseas. Yet review bodies tasked with monitoring CSIS’s use of threat reduction measures (TRMs) report that CSIS has never sought judicial authorization to conduct a TRM. Why? One answer may be that CSIS has concluded that the Charter does not govern actions carried out abroad, and, as such, their extraterritorial conduct falls beyond the reach and oversight of the Federal Court. Whether the Charter applies to CSIS’s overseas conduct ostensibly lies in the Supreme Court of Canada’s leading case on the extraterritorial application of the Charter, R v Hape. This article canvasses domestic and international law, as well as intelligence law theory, to explain why that presumption is wrong. Wrong, not least because the majority opinion in Hape is deeply flawed in its analysis and application of international law. But also, because intelligence operations are so distinguishable from the transnational criminal investigations at issue in Hape, the Court’s findings are inapplicable in the former context. In short, this article demonstrates that applying Hape to the actions of CSIS officers not only leaves their actions beyond the scrutiny of Canadian courts but also creates a significant human rights gap.

Fairness: The Bedrock of Ombuds Practice in Canada

Fairness and justice are longstanding constructs in the discussions around ethics and morality. And fairness, or the principle of procedural fairness, as the bedrock of Ombuds practice in Canada, creates a responsibility for Ombuds to advance and hold institutions and individuals accountable to ethical processes and decisions. While effective conflict engagement forms a significant part of our work as well, Canadian Ombuds practice is firmly founded on and delivered through a fairness lens. Fairness has been described as a flexible and context-specific construct, its content to be determined by the individual circumstances of the case. In this flexible approach lies the opportunity for Ombuds to help humanize bureaucracy for those who must navigate it, by encouraging rules, processes and decisions that support the diversity and multiplicity of contexts, experiences and perspectives. It gives Ombuds a way to define fairness that does not mean treating everyone the same, which is an interpretation of “fairness” that actually creates and perpetuates inequity and unfairness. This is supported by Canadian jurisprudence from the Supreme Court of Canada that embeds equality and inclusivity into the concept of fairness. The Charter of Rights and Freedoms, Canadian values and the diversity of the Canadian populace inform the standard of fairness in a way that support Ombuds to advance fairness in a way that is inextricable from equity.

Open Courts, Privacy and Equality in a Digital Era: The Supreme Court of Canada’s 2021 Open Court Jurisprudence

Open Courts, Privacy and Equality in a Digital Era: The Supreme Court of Canada’s 2021 Open Court Jurisprudence

Women’s Charter Equality at the Supreme Court of Canada: Surprising Losses or Anticipated Failures?

Women’s Charter Equality at the Supreme Court of Canada: Surprising Losses or Anticipated Failures?

Balancing the Scales: The Role of the Canadian Supreme Court in Weighing Commercial Speech and Public Health.

The Supreme Court of Canada has established that commercial speech is protected under the Canadian Charter of Rights and Freedoms and that commercial speech exists along a continuum of utility and value, which is balanced against objectives such as public health. This article examines jurisprudence to determine when infringements on commercial speech are acceptable, analyzing considerations of evidence, rational connections between policies and outcomes, proportionality, and minimal impairment.

“Untethered”: How the majority decision in Toronto (City) v Ontario tries (but fails) to break away from the Supreme Court of Canada’s unwritten constitutional principle jurisprudence

“Untethered”: How the majority decision in Toronto (City) v Ontario tries (but fails) to break away from the Supreme Court of Canada’s unwritten constitutional principle jurisprudence

Gatekeeping Reconciliation: The Supreme Court of Canada’s Piecemeal Erosion of Aboriginal Rights

Gatekeeping Reconciliation: The Supreme Court of Canada’s Piecemeal Erosion of Aboriginal Rights

A Mighty Fortress is Our Court: Abusive Litigant Abatement at the Supreme Court of Canada

A Mighty Fortress is Our Court: Abusive Litigant Abatement at the Supreme Court of Canada

An Update on Administrative Law: the Supreme Court of Canada in 2022

An Update on Administrative Law: the Supreme Court of Canada in 2022

Rigour Required: Recent Direction from the Supreme Court of Canada on Binding and Non-Binding Sources of International Law in Charter Interpretation

Rigour Required: Recent Direction from the Supreme Court of Canada on Binding and Non-Binding Sources of International Law in Charter Interpretation

Triage and Dissensus at the Supreme Court of Canada: A Review of the Court’s 2020 Constitutional Decisions

Triage and Dissensus at the Supreme Court of Canada: A Review of the Court’s 2020 Constitutional Decisions

Implications of the Supreme Court of Canada's New Approach to Charter Interpretation

Implications of the Supreme Court of Canada's New Approach to Charter Interpretation

Getting the Ghet: Analyzing the Need for State Intervention in Canadian Jewish Divorces

A commitment to religious freedom involves respecting the individual’s spiritual choices and obligations. However, to regard a religious community as an association that members join and quit at will is to miss both the value of religious association and its potential to limit, and sometimes even to oppress, its members (Moon, 2008). Through analysis of the judicial reasoning in several Canadian Supreme Court cases, I argue in this article that the courts are justified in ruling to protect vulnerable group members from oppressive or unjust religious rules, and that the state is justified in legislating such protections. In the private sphere, most religious systems impose patriarchal norms on family life (Becker, 1999). In Judaism, the Jewish Orthodox rabbinical courts have exclusive control over marriage and divorce. These courts almost always grant to men full control over divorce, which results in gender-based discrimination and violation of female human rights. Under Jewish law, Halacha, divorce is not a judicial act and may be achieved only at the husband’s will. When the man refuses to divorce, the wife has no religious recourse and is known as agunah, or "chained wife." She is unable to continue her life without a ghet, the religious annulment of the marriage, and civil divorce or subsequent marriage are not viable options according to Jewish traditions. Practices surrounding the ghet often ignore the woman’s rights, rights that should be protected by the state and upheld by its courts. In this context, the role of the state is to alleviate women’s disadvantages; as such, secular legal authorities, comprising actors in both the legislative and judicial systems, should be obligated to ensure equal and fair treatment for women, even in the sphere of religious tradition.

Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

Judicial amendment and our constitutional lives: A reply to Emmett Macfarlane

Abstract This short article responds to Emmett Macfarlane’s important piece, “Judicial Amendment of the Constitution,” with questions about how well his theory of judicial amendment maps, and thereby offers guidance about, the realities of constitutional life. I focus on the application of Macfarlane’s theory to one of the Supreme Court of Canada’s most internationally known opinions, the Quebec Secession Reference. I take this approach not merely to stake out an interpretation of the Court’s decision in the Secession Reference that differs from Macfarlane’s, but rather to better see what Macfarlane’s approach exposes and occludes about lived constitutionalism. To this end, this essay first questions whether the Secession Reference is an instance of judicial amendment, as Macfarlane argues it is. It then considers the implications of this questioning beyond the Reference. I argue that Macfarlane’s theory would benefit from a more robust account of structural interpretation and that a future normative account should grapple with how the concept of judicial amendment helps us understand our constitutional lives.

The Exclusion Clause in Canada: Prioritizing Practical Expediency

Abstract Applying the Canadian legal framework for refugees in compliance with binding international instruments has entailed significant challenges. In order to fulfil its dual obligations of protecting people under threat of torture and persecution, while denying refugee status to those responsible for such atrocities, Canada relies on the exclusion clause of the 1951 Convention relating to the Status of Refugees as a practical and expedient solution. This article provides a comprehensive review of the jurisprudence related to Canada’s exclusion system, examining the judicial reasoning of decisions issued by the Immigration and Refugee Board, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. The analysis endorses the position that Canada’s continuing prioritization of security trumps humanitarian aims by an overly broad application of article 1F of the Refugee Convention. The interpretation of Canadian judiciary can lead to the improper application of international law, prompting the need for a reassessment of the Canadian exclusion system 70 years after the adoption of the Refugee Convention.

Decriminalizing Domestic Violence and Fighting Prostitution Abolition: Lessons Learned From Canada’s Anti-Carceral Feminist Struggles

This article offers a cautionary tale for efforts to decriminalize domestic violence through a retrospective analysis of Canadian feminist legal activism to decriminalize sex work. Both domestic violence and sex work are contested terrains of activism, litigation, and scholarship and have come up against the disparate views of criminalization as necessary to protect women from violence, versus criminalization as compounding women’s potential risks for violence. Through the example of Canadian feminist jurisprudence in R v Bedford, wherein the Supreme Court of Canada recognized the endangerment of women as resulting from the criminalization of sex work, I explore the liminal space following this decision, and how regressive legislation was introduced to re-entrench carceralism in the breach of a seeming feminist victory. My focus is on how carceral feminism continues to occupy the liminal space as a force of colonial violence, further endangering Indigenous women. I draw linkages between several violent murders of street-involved Indigenous women and the severing of allyship among feminists, sex workers, and Indigenous women over the potential decriminalization of sex work. Finally, I suggest that opposition to the decriminalization of sex work is successfully argued by an emerging force of carceral feminism: neo-abolitionist feminists who have appropriated a politics of abolition and, yet, may have deepened carceralism in the lives of Indigenous women.

On the breach: Identifying infringements of section 35 rights

Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.