Canadian Courts Research Articles

Over a Shadowed Threshold: Supreme Court of British Columbia Litigation Activity 1992-2022

The Supreme Court of British Columbia between 2002 to 2022 published “Annual Reports” that include information and statistics from 1992 to 2022 concerning Court litigation and activities. Compiled Annual Report data and calculations permit the first long-duration survey of different litigation type volumes, specific process activities, and the frequency at which court and judicial resources could not support scheduled proceedings in a provincial superior court of inherent jurisdiction. The resulting observations in this article are strong support for further and expanded quantitative investigation and evaluation of Canadian courts and their operation. While the overall volume of new Supreme Court of British Columbia activity is generally stable, extended timeline data reveals long-duration shifts in the frequency of certain litigation types, and a general decrease in trial volume, with the largest decreases being in criminal subject litigation. However, the volume of “long chambers” interlocutory processes has remained stable.

Judicial review as a quasi-administrative jurisdiction

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve ‘dueling administrative interpretations’ of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller’s contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller’s contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant’s favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions.

Canadian cross‐border insolvency law and the triumph of “modified universalism”: A retrospective

Abstract“This article examines the implementation of the Model Law on Cross‐Border Insolvency in Canada and the evolution of the concept of “modified universalism”. In particular, the article argues that Canadian courts have developed an expansive view of modified universalism, based upon a liberal and purposive interpretive approach, that prioritizes cooperation and coordination with foreign courts to the greatest possible extent. This expansive view of modified universalism began developing in the jurisprudence long before Canada adopted the Model Law in 2009. Although this evolution was not entirely without controversy, since 2009 the law has continued to develop along the same lines. Thus, the Canadian experience illustrates the important role played by the courts in laying the groundwork for the successful adoption and implementation of the Model Law. This can be contrasted with the more restrictive approaches taken by courts in certain other jurisdictions. At the same time, the article also highlights the conceptual indeterminacy of modified universalism, suggesting that more work is needed to fill gaps and resolve inconsistencies that may hamper the law's further development.

The Invisible Struggle: Parents with FASD, the Courts and the Child Intervention System

Fetal alcohol spectrum disorder (FASD) encompasses a range of complex neurodevelopmental challenges that arise because of maternal alcohol use during pregnancy. Contrary to previous beliefs, FASD is a wide-ranging condition that is mostly invisible, affecting cognitive, social, and daily living skills. Furthermore, living with FASD may present other challenges, such as mental health issues, substance abuse, and engagement in criminal behavior. FASD is a long-term disability that requires support across the lifespan. The main objective of this research was to determine what, if anything, has changed since a prior review in 2020 of parents with FASD appearing in child intervention courts in Canada. We found eleven relevant reported cases throughout Canada from 2020 to 2024 where parents had a confirmed diagnosis or a potential FASD to be eligible for our study. Within these cases, only one parent was able to reunite with their children because of the strong and supportive system they had. There were four cases where ongoing contact between parent and child(ren) was permitted, Additionally, we found that professionals lack education regarding the potential skills that people with FASD may demonstrate. A person with FASD is seen through the lens of their diagnosis rather than a strengths-based approach, creating stigma, fear, and power imbalance. Stigma has an impact not just on how professionals see people and make decisions but also on policymakers, funding, and support from governments or other social groups. Individuals or parents with FASD are often reluctant to report their diagnosis for fear of being judged or having their children taken from their care. Thus, parents are unable to obtain access to services, and even when they do have access, they must navigate the system on their own. Parents with FASD who are involved in child intervention may be required to participate in many programs simultaneously, potentially resulting in an overwhelming experience.

A comprehensive examination of the role of the Spousal Assault Risk Assessment Guide, Domestic Violence Risk Appraisal Guide, Ontario Domestic Assault Risk Assessment, and Danger Assessment in Canadian courts and tribunals.

A comprehensive examination of the role of the Spousal Assault Risk Assessment Guide, Domestic Violence Risk Appraisal Guide, Ontario Domestic Assault Risk Assessment, and Danger Assessment in Canadian courts and tribunals.

Supplemental Material for A Comprehensive Examination of the Role of the Spousal Assault Risk Assessment Guide, Domestic Violence Risk Appraisal Guide, Ontario Domestic Assault Risk Assessment, and Danger Assessment in Canadian Courts and Tribunals

Supplemental Material for A Comprehensive Examination of the Role of the Spousal Assault Risk Assessment Guide, Domestic Violence Risk Appraisal Guide, Ontario Domestic Assault Risk Assessment, and Danger Assessment in Canadian Courts and Tribunals

Generative AI in American and Canadian courts: a ‘training’ approach to regulation

ABSTRACT Increased usage of generative artificial intelligence (AI) within the legal profession has prompted responses from the judiciary, resulting in the issuance of various practice directives. The spectrum of these directives ranges from conservative recommendations to more radical measures demanding lawyers to disclose their use of generative AI in the preparation of legal documents or certify the absence of such software in their creation. This article explores the development of a comprehensive framework for judicial guidance on generative AI use in legal proceedings in Canada, highlighting key elements of such guidance. The author contemplates a ‘training’ approach to regulating generative AI use in legal proceedings, focusing more on the user than the technology itself. This approach emphasises the need for judicial guidance to balance constructive engagement with generative AI with lawyers’ ethical responsibilities.

Unfinished Business in Unwritten Justice: Unwritten Constitutional Principles After Toronto (City) v. Ontario (Attorney General)

This article examines unwritten constitutional principles (UCPs) within the context of the Supreme Court of Canada’s 2021 obiter opinion in Toronto (City) v. Ontario (Attorney General). The Supreme Court has traditionally accepted three main arguments in justifying the use of UCPs. The Toronto (City) v. Ontario (Attorney General) majority strictly prescribed a “textual approach,” whereby a court broadly interprets the written Constitution, negating the importance of UCPs as independent legal tools. I respectfully submit that the majority failed to provide a reasoned framework for UCPs. I argue that certain constitutional issues arise that cannot be addressed through explicit constitutional provisions. Relying exclusively on enumerated provisions to invalidate legislation may stress the democratic authority of the Constitution when its provisions have a weak tie to a desired principle that addresses the constitutional threat at hand. In these cases, it is better if constitutional principles and values are openly acknowledged and subjected to careful consideration, analysis, caution, and criticism through structural argumentation. While the written text of the Constitution must always take priority, Canadian courts must sometimes turn to the full legal power of UCPs when faced with novel constitutional issues unforeseen when the Constitution was drafted.

The Judicialisation of Parliamentary Privilege in Canada: A Cautionary Tale

Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff’s claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by developing guidelines for their appropriate use.

Aquaculture’s offshore frontier: learning from the Canadian courts on ocean grabbing, ocean privatization, and property as process

Many coastal nations have endorsed the Blue Economy as both an economic and environmental opportunity, despite numerous questions as to how industrial expansion into deep ocean waters might be regulated for sustainability. Aquaculture is one industry actively promoting a move offshore, with numerous offshore leases in development. Drawing on the history of aquaculture in the nearshore, and relying on a processual approach to property, we explore questions around the regulation of privatized ocean spaces: What can court cases involving aquaculture in the nearshore tell us about the role of law in promoting sustainable offshore ocean spaces? And what in turn does this suggest about extractive capitalism, the privatization of ocean spaces, and the law? We examine 46 Canadian court cases which cover a 30-year time frame and multiple Canadian jurisdictions. We argue that there are lessons here regarding the questionable ability of law to effectively regulate existing or future aquaculture operations once privatization emerges. The lessons from these Canadian court cases, taken together with a burgeoning literature on legal geography, more-than-human methodologies, and critical environmental law, suggest the varied legal dimensions of deep-sea aquaculture frontier imaginaries and highlight the real limits to regulating the extraction of resources in this perceived open space (terra nullius). We highlight crucial barriers to sustainability through what we are calling jurisdictional opaqueness in regulatory issues. The results include poor regulation and overlapping or contested jurisdictions, which relates in turn to inadequate consultation, frequent environmental problems (toxic chemicals, anoxia, salmon escapes, marine debris), and scientific disputes.

Canadian Codes of Medical Ethics as a Source of Law

The article discusses the codes of medical ethics which are adopted in Canada. These acts are not ‘classical’ normative-legal acts, since they are adopted not by legislative bodies, but rather by medical associations, and are aimed at providing rules on the professional conduct of physicians and auxiliary medical personnel; occasionally, they also feature the rules concerning the rights and duties of patients. The article’s sources include the codes of medical ethics adopted in Canada, Canadian court judgments, and academic literature.

Canadian Courts and Customary International Law

Canadian Courts and Customary International Law

Canada Consults on “Modernizing” Its Transfer Pricing Rules – What’s in (the) Store?

In the summer of 2023, Canadian tax and finance authorities conducted a consultation on changes to Canada’s transfer pricing legislation. These changes reflect both international transfer pricing’s increasing emphasis on “economic substance” following from continuing work conducted by the OECD and perceived limitations of Canada’s existing transfer pricing legislation as interpreted in important Canadian court cases. Among other things, the changes would empower the tax authorities and courts not to recognize taxpayers’ transactions in favour of alternatives considered to more accurately reflect the economic features of taxpayers’ circumstances.

Indigenous Incarceration in Canada

Canadian sentencing law reform in 1996 and the R. v. Gladue 1999 Supreme Court landmark decision, Canada introduced an internationally unique requirement for Canadian courts in sentencing Indigenous offenders to give special consideration to systemic factors in order to address the historic and ongoing experiences of Indigenous people in the criminal justice system Canada. While these reforms to the criminal justice system were centred around alleviating the egregious level of incarcerated Indigenous people, this analysis will reveal the implementation of Gladue principles has not been the transformative change many have hoped for. This Canadian policy research paper argues that the Canadian government’s Gladue policy has been underfunded and requires a commitment to the complete implementation of Gladue Reports and Gladue Courts to accomplish its objectives of considering the systemic circumstances of Indigenous offenders and providing criminal justice in a culturally appropriate manner.

Correction: Religious and Cultural Expressions in Legal Discourse: Evidence from Interpreting Canadian Courts Hearings from Arabic into English

Correction: Religious and Cultural Expressions in Legal Discourse: Evidence from Interpreting Canadian Courts Hearings from Arabic into English

Appellate review of foreign law

Canadian courts treat foreign law as fact. When foreign law governs a dispute as a result of choice-of-law rules, the parties must plead and prove its contents, typically through expert testimony. The trial court assesses the evidence and applies the law, as it was proven, to the case at hand. But what happens when a litigant disagrees with the trial court’s view of foreign law and appeals its decision? Appellate courts do not interfere with findings of fact unless the trial judge made a palpable and overriding error. Conversely, appellate courts are free to impose their views on questions of law. Should appellate courts defer to the trial judge or get the final word on issues of foreign law? This article addresses the disagreement between appellate courts over this issue, which the Supreme Court of Canada dodged in a recent case. It delves into the complex features of foreign law, insisting on the distinction between its evidentiary treatment (as fact) and its nature and function in litigation (as law). It makes the case for a nuanced approach to the standard of review which accounts for the many ways in which problems of foreign law present themselves to the courts. As a result, appellate courts should characterize specific questions of foreign law as questions of fact or questions of law rather than attempting to pigeon-hole foreign law itself, an abstraction capable of being both. Ultimately, correctness and deference should coexist in the appellate review of foreign law findings.

Communicating Censure: The Relevance of Conditions of Imprisonment at Sentencing and During the Administration of the Sentence

In common law, sentencing is chiefly concerned with the duration of a sentence and rarely engages in the conditions under which the sentence is served. Recently, courts in Canada and England and Wales have started to recognise the relevance of certain prison conditions when deciding sentences. These approaches, however, have lacked conceptual clarity and consistency. Building on communicative theories of punishment, this article proposes a novel framework based on ‘state responsibility/blame’ and dynamic censure to justify the relevance of considering the qualitative conditions of imprisonment at sentencing as well as during the administration of the sentence. This framework is coupled by a typology of unjustified harmful carceral conditions that can be considered relevant evidence. This expanded purview of sentencing will offer greater legitimacy of punishment by strengthening communicative practices of punishment that include dynamic censure, including censuring the state for additional and unjustified state‐created harms.

“Must the Police Refuse to Look?”

Courts in Canada are dealing more frequently with an old problem in a new guise: civilians bringing police digital evidence that engages a suspect’s privacy interest (text messages, email). Do police carry out a seizure when they receive it or a search when they proceed to review it, even briefly? Should police ‘refuse to look’ before obtaining a warrant or other authorization? If so, why? What measure of protection would calling this a search or seizure under section 8 of the Charter afford Canadians? The Supreme Court of Canada has yet to decide these issues directly, and trial, appeal courts, and commentators have offered widely diverging responses to the questions they raise. In doing so, courts and commentators alike have lost sight of the Supreme Court’s principled approach to what constitutes a search or seizure and when it will be reasonable. Applying this approach in R v Marakah, McLachlin CJ in obiter held that receiving a text exchange from a third party would require police to obtain a warrant before reading it, but she provided no rationale. This article articulates the Court’s principled approach and shows why diverging approaches among recent courts and commentators are not compelling. More crucially, given how central digital communication has become to all of us, the article sets out a rationale for insisting on a warrant before police review texts or photos, and what is at stake in failing to provide this vital safeguard.

Reflections on the corporate social responsibility landscape for Canadian mining transnational corporations in the aftermath of Nevsun Resources Ltd v Araya

This paper explores the corporate social responsibility (CSR) landscape for Canadian mining transnational corporations (TNCs) in the wake of the landmark decision of the Supreme Court of Canada in Nevsun Resources Ltd v Araya, which settles, as concrete law, the right of foreign victims of transnational torts committed by Canadian TNCs to bring an action in Canadian courts. The paper acknowledges that there has been an increasing tendency by the Canadian government to create, by way of legislation, legal responsibility for some of the corporate behaviours that had been only governed by CSR initiatives. It argues that the right of action established in the Supreme Court decision adds to the introduction of legal responsibility into the realm of social responsibility, thus calling into question the continuing relevance of CSR initiatives for mining TNCs. It concludes that despite the apparent encroachment upon the social responsibility sphere by legal responsibility, CSR initiatives still hold a place of importance for mining TNCs. Canadian mining TNCs will continue to use the CSR front to gain acceptance in local communities, but may now be potentially held legally responsible through extraterritorial litigation in Canada when their activities run afoul of their own CSR creed or programme and/or violate the rights of local people in their host countries.

Preparing for a Mid-Life Crisis: Section 92A at 40

Section 92A, the resources amendment, was added to Canada’s foundational constitutionaldocument in 1982 at the same time as Canada patriated its Constitution from Westminster and adopted the Canadian Charter of Rights and Freedoms. The provision was designed to confirm and enhance the legislative and executive authority of provincial governments. As we approach the fortieth anniversary of section 92A, Canada appears destined for another federation-defining conflict over resource-related issues including the construction of new pipelines, legislative and policy responses to greenhouse gas emissions, and the reach of federal environmental impact assessment legislation. This article begins by examining the events that led to the adoption of section 92A and next assesses both how litigants have invoked section 92A and how Canadian courts have interpreted its text in the 40 years since its adoption. Earlier decisions relied on section 92A to confirm the validity of provincial or municipal legislation, but, in more recent cases, section 92A has been invoked to question the validity or applicability of federal legislation. Section 92A arose out of conflict with respect to trade in resources and the right to appropriate the economic rent associated with developing those resources. The current conflicts focus on the power to make laws with respect to the development and exploitation of those resources.