Canadian Supreme Court Research Articles

Legislative Inconsistency and the 'Smoking Out' of Illicit Motives

US Constitutional law is often perceived to be an exceptional appearance in the landscape of comparative constitutional law. One main difference that is identified is that the US Supreme Court refuses to apply the proportionality test that is a central doctrinal instrument of fundamental rights jurisprudence almost everywhere else. This paper tries to show that this difference is, at least in part, overstated. Even proportionality courts do not exclusively rely on proportionality. This paper analyzes consistency arguments that are common in the case law of several proportionality courts. It examines cases from five different apex courts, arguing that the main function of consistency considerations is the “smoking out” of illicit motives. The paper first shows that the “smoking out” of illicit motives is a frequent element of the strict scrutiny test of the US Supreme Court. It then analyzes the function of consistency arguments in the jurisprudence of proportionality courts. It draws on examples from the UK Supreme Court, the Canadian Supreme Court, the German Federal Constitutional Court, the European Court of Justice, and the South African Constitutional Court. These courts use legislative inconsistency is an indication that the legislature also pursued different aims than the ones which were stated explicitly. In particular, the parliamentary majority may have been captured by interest groups, or it might have had incentives to discriminate against societal minorities.

Neutrality and Prayers:Mouvement laique v Saguenay

In Mouvement laique v Saguenay the Supreme Court of Canada held that the recitation of a prayer at the opening of a municipal council’s public meeting breached ‘the state’s duty of neutrality’ in matters of religion. The comment discusses some of the difficulties or challenges raised by the Court's commitment to religious neutrality.

The Caretaker Convention and Supreme Court Appointments

On 27 July 2015, Prime Minister Stephen Harper announced that Mr. Justice Russell Brown, of the Alberta Court of Appeal, will replace Mr. Justice Rothstein on the Supreme Court of Canada, when the latter retires at the end of August. Six days after making the announcement, the Prime Minister advised the Governor General to dissolve Parliament. This will be the first Supreme Court appointment, made while Parliament is dissolved, since 1958. That is no accident. There is a constitutional convention obligating the government to exercise “restraint” in making appointments while it is functioning in a “caretaker” role. Though the scope of the convention may be disputed, the weight of historical precedent, the professed views of successive governments as to the existence of the convention, and the actual and perceived significance of Supreme Court appointments, all suggest that it applies to them. In this paper, I want to consider the caretaker convention and what it has to say about the appointment of Supreme Court of Canada judges while Parliament is dissolved. My central aim is not to assess the constitutionality of Mr Justice Brown's appointment specifically. I do, however, use his case as a springboard for reflecting on conventions generally, the caretaker convention, and its application to the appointment of Supreme Court judges. I also consider the implications of the government's decision to circumvent the caretaker convention by announcing Brown's appointment immediately before advising the dissolution of Parliament.

Hedley Byrne: Abandoned by the Supreme Court of Canada

This article identifies and criticizes the manner in which the famous HL decision in Hedley Byrne v Heller has been employed by the Supreme Court of Canada to influence the recovery of economic loss in negligence. Although Hedley Byrne has been cited with approval in virtually every Canadian negligent misrepresentation decision rendered in the last 50 years, the SCC has never really understood it, and it no longer actually follows Hedley Byrne. The SCC has been indifferent to the theoretical justifications for allowing recovery for negligent information or advice leading to pure economic loss. Liability for misrepresentation in Hedley Byrne was based on the defendant's intending the plaintiff to rely on its information or advice, well-described as a voluntary assumption of responsibility. In contrast, in Hercules Management v Ernst & Young the Supreme Court based liability on the defendant's foreseeable reasonable reliance. By allowing the plaintiff to unilaterally claim the right to rely on another, the Supreme Court violates the autonomy rights of the defendant. It also creates an impractically wide ambit of liability at the prima facie duty stage which in turn requires a narrowing of that ambit of liability at the policy stage. None of this would be necessary with a proper proximity analysis that takes the intentions of the defendant into account. The article concludes by examining the indirect influence of Hedley Byrne in developing the law governing recovery for other types of economic loss in Canada, notably the defective structure/product cases, and relational economic loss.

A Two-Tier Health Care System: The New Zealand Story

The Canadian health care system is at a crossroads. Litigation building on the Supreme Court of Canada’s decision in Chaoulli that could lead to the establishment of a parallel private tier is underway in several provinces. For example, in a challenge set to proceed to trial this fall, Dr. Brian Day and six patient plaintiffs are challenging several British Columbia laws that restrict parallel private care. Provincial governments across Canada employ various laws to protect public Medicare, including bans on private insurance for publicly insured services, limits on dual practice by physicians (i.e. prohibiting those who are paid through the public insurance plan from also being paid from the public purse), and bans on extra-billing for insured services (i.e. preventing physicians from topping up public payments by charging patients more). Plaintiffs in the upcoming cases allege that the combination of long wait times in the public system and limits on private care infringe their Charter rights to life and security of the person. As judges evaluate these claims, a key consideration will be whether restrictions on private care are essential to preserving quality, efficiency, and accessibility within Canada’s public health care system. In assessing the impact of liberalizing these laws, courts will rely on the comparative experience of countries that also have universal public health insurance, but that allow parallel private care. However, too often, the subtleties of foreign countries’ experiences with two-tier care and contextual differences between health care systems are downplayed or ignored, in favour of simplistic conclusions. For example, in Chaoulli, Chief Justice McLachlin accepted a “common sense” argument that prohibiting private health insurance was not related to the provision of quality public health care, given the experiences of several western democracies with “medical services that are superior to and more affordable than the services that are presently available in Canada,” without addressing the differences that exist between Canada and these countries. This paper draws lessons for Canada from New Zealand’s health care system, which permits two-tier health care. After briefly comparing the two systems, we address the claim that New Zealand’s shorter wait lists coupled with its permissive approach to a parallel private system suggest that Canada should loosen its own restrictions on privatization. We argue that not only are there concerns with the reliability of New Zealand’s wait list data, but that its method of organizing wait lists and its permissiveness of dual practice raise serious concerns with equitable access, quality of care, and physician conflicts of interest. We conclude by arguing that the uncertainty inherent in adapting comparative health policy literature to the Canadian context necessitates judicial deference to policy-makers in the upcoming constitutional challenges.

“THE CHOICE IS CRUEL”: ASSISTED SUICIDE AND CHARTER RIGHTS IN CANADA

IN a groundbreaking decision, the Supreme Court of Canada in Carter v Canada (Attorney General) 2015 SCC 5 has declared the criminal law measures prohibiting the provision of assistance in dying unconstitutional. In doing so, the Supreme Court unanimously overruled its previous decision (Rodriguez v British Columbia (Attorney-General) [1993] 3 S.C.R. 519) upholding the blanket prohibition on assisted suicide.

Analysis of Reference re Supreme Court Act: The Implied Currency Requirement for Quebec Seat Appointees to the Supreme Court

The Supreme Court of Canada, in a 6-1 judgment in March 2014, ruled that an appointee toone of the three Quebec seats on the Supreme Court must be either a current Quebec SuperiorCourt judge or a current Quebec lawyer of at least ten years’ standing. Reference re SupremeCourt Act, ss. 5 and 6 [Reference] determined that the phrase “from among” in section 6 of the Supreme Court Act [Act] implies that Supreme Court appointees to the reserved Quebec seats must be current members of one of the designated Quebec legal institutions. The judgment also affi rmed that any change to the composition of the Supreme Court, including the eligibility conditions of appointees, is constitutionally protected. A synthesis of textual, contextual, and purposive analysis is hereinaft er used to review the Reference.

Supreme Court of Canada – 30/1/2015 – Saskatchewan Federation of Labour v. Saskatchewan

Supreme Court of Canada – 30/1/2015 – Saskatchewan Federation of Labour v. Saskatchewan

O caminho até Tsihlqot´in. O reconhecimento dos títulos nativos no Canadá e as lições de Tsihlqot´in vs. British Columbia para o direito brasileiro

A recent ruling by the Supreme Court of Canada in June 2014 on the Tsilhqot’in Nation v British Columbia marks a development in Canadian Aboriginal rights as it defines the occupational pattern worthy of legal protection. In short, the ruling highlighted that indigenous land rights protected by law should not be assessed according to the same parameters employed in non-indigenous law. The article outlines the way in which the recognition of indigenous titles has evolved in Canadian law and traces a parallel with the characteristics of the recognition of indigenous territories in Brazilian law, suggesting similarities between the Canadian and Brazilian legal systems, particularly in light of the decision taken by the Brazilian Supreme Federal Court in the Raposa/Serra do Sol case (Petition no. 3388/State of Roraima).

From Courtroom to Bedside - A Discussion with Dr. Jeff Blackmer on the Implications of Carter v. Canada and Physician-Assisted Death

Introduction:On February 6th, 2015, the Supreme Court of Canada (SCC) concluded that “the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”[1]. The Court added, “The declaration of invalidity is suspended for 12 months,”[1] to allow the government to respond with appropriate legislation to guide and regulate the practice of Physician-Assisted Death (PAD).Dr. Jeff Blackmer is the Vice President of Medical Professionalism at the Canadian Medical Association (CMA). He holds a Masters in Medical Ethics from the University of Toronto. He served as the Executive Director of the CMA’s Office of Ethics, Professionalism and International Affairs and has been the interim Director of Ethics for the World Medical Association in Geneva. In an interview on February 11th, Dr. Blackmer kindly agreed to help us navigate through an array of ethical and practical ramifications stemming from the decision on Carter v. Canada.

A Ban on “Private Label” Generic Pharmaceuticals: Legal and Economic Context

In 2010, the Canadian province of Ontario passed regulations to prohibit pharmacy chains from selling their own “private label” (PL) generic drugs. Pharmacy chain owners Shoppers Drug Mart Corporation and Katz Group Canada challenged the regulations, stating they fell outside the purpose and authority of their overarching legislation that was meant to promote low drug prices. In 2013, the Supreme Court of Canada ruled in favor of the ban, prohibiting PL generic drugs in Ontario. However, the Supreme Court was limited to examining the legality of the ban, not its impact on drug prices. This article reviews the legal case and also discusses the likely impact of PL generics on drug prices, taking into consideration the competitive effects of vertical integration and the price-caps on generic drugs currently in place in Canada.

Canadian Appellate Level Decisions Dealing with Refugee Claims Based on Sexual Orientation and Gender Identity Listed According to the Definition of a Convention Refugee

This compilation of Canadian appellate level decisions covers the period from 1993 to 2015 and contains two appeals from the RAD of the IRB; a significant number of judicial reviews from the Federal Court; and finally, one case from the Supreme Court of Canada. Decisions were selected if they identified principles of law which are settled and illustrated how those principles were applied to particular situations. Indeed, cases were selected if they set out a legal principle rather than decisions that were simply decided on the particular facts of the refugee claim.

“Third Parties” and Democracy 2.0

Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up—and the Supreme Court has embraced—an “egalitarian model” of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. “Third parties”―those participants in pre-electoral debate who are neither political parties nor candidates for office―are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time. This article argues that changes since the development of the “egalitarian model” have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with “Web 2.0” has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties’ privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.

Case Comment: Alberta v United Food and Commercial Workers

Case comment on Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 (2013 SCC 62). Traces the Supreme Court of Canada's jurisprudence on freedom of expression in the context of a labour dispute, from Dolphin Delivery through KMart and Pepsi-Cola. Focusing on how the Court has characterized freedom of expression in the labour context and the evolution of its willingness to protect third parties from the impact of a labout dispute. Alberta v UFCW represents an evolution in the Court's thinking about third parties that is consistent with the trajectory of earlier jurisprudence.

The Honour of the Crown in Aboriginal Land Issues: Manitoba Métis Federation Inc. v. R., 2013

Promises of land allotments that the Crown made to Métis children in 1870 were fulfilled for some eligible children and partially fulfilled for others. This led to the Manitoba Métis Federation and seventeen individuals initiating action against the federal Crown, claiming that the Crown had breached a fiduciary obligation to the Métis and had failed to uphold the honour of the Crown by not executing its obligation diligently, which, in turn, had caused injury to a number of the children. At trial, upheld on appeal, the case was dismissed. The fiduciary obligation was deemed not to exist, the honour of the Crown had not been breached, and the action was barred by both statutes of limitations and the doctrine of laches. Overturning the decision, the Supreme Court of Canada, however, held that the honour of the Crown had been breached and statutes of limitations and the doctrine of laches did not apply. The case contributes to Canadian jurisprudence regarding the honour of the Crown in Aboriginal land matters. It is also of interest in international land administration and land restitution, given the current high incidence of grabbing of customary/Aboriginal land in many countries.

The Place of the Niqab in the Courtroom

Abstract This paper analyzes the Supreme Court of Canada’s decision in R v NS, 2012 SCC 72 where the Court considered if a witness who wears a niqab for religious reasons can be required to remove it while testifying. The Court identified the two Charter rights engaged: the witness’ freedom of religion and the accused’s fair trial rights, including the right to make full answer and defense. This paper focuses on those aspects of the Supreme Court’s decision that relate to religious freedom, multiculturalism and reasonable accommodation. Analyzing the Court’s reasoning through the lens of critical multiculturalism, I consider the potential of the reasonable accommodation framework to forward minority rights. I suggest that had the Supreme Court applied an intersectional framework to adjudicating NS’s claim, it could have crafted a more contextual response based on her location along multiple axes of discrimination: gender, religion and racialised minority. This paper aims to contribute to a better understanding of mediating individual and group tensions, to move towards a more inclusive notion of citizenship than can foster a commitment to a shared multicultural future.

Draft Federal Legislation to Amend the Criminal Code to Be Consistent with Carter v. Canada (Attorney General) 2015 SCC 5

Draft Federal Legislation to Amend the Criminal Code to Be Consistent with Carter v. Canada (Attorney General) 2015 SCC 5 and the Final Report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted DyingOn February 6, 2015, the Supreme Court of Canada unanimously declared that the Criminal Code prohibitions on physician-assisted dying (both assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. They immediately suspended the declaration for 12 months thus allowing the government time to craft new legislation. This paper is a contribution to the project of meeting that deadline -- it presents draft federal legislation. This draft legislation is based on: 1) a thorough review of existing legislation in all permissive regimes throughout the world (reviewed through a "lessons learned" lens); 2) the requirements for constitutional validity set out by the Supreme Court of Canada in Carter v. Canada (Attorney General); 3) the Final Report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying; and 4) other relevant case law. Specifically, medically-assisted dying includes both assisted suicide and voluntary euthanasia. Access is limited to assistance provided to individuals who have a grievous condition (including illness, disease or disability) that cannot be alleviated by means acceptable to the person and causes enduring physical or psychological suffering that is intolerable to the individual in the circumstances of his or her condition. Assisted dying is only permitted with the free and informed consent of the individual. Procedural safeguards and a national oversight system are established.

Rights may conflict with assisted-dying ruling

The Supreme Court of Canada’s decision to overturn the law prohibiting physician-assisted dying throws the conflict between patients’ and doctors’ rights squarely into the political arena. The unanimous decision by all nine Supreme Court justices on Feb. 6, 2015, upheld an earlier ruling by a

Environmental Assessment as Planning and Disclosure Tool: Greenpeace Canada v. Canada (Attorney General) 2014 FC 463

In Greenpeace Canada v. Canada (Attorney General) (2014), the applicants successfully challenged the adequacy of the environmental assessment report prepared in relation to a proposed nuclear power plant. In assessing that report, the Federal Court described environmental assessment as an “evidence-based and democratically accountable” decision-making process. In this comment I suggest that this characterization represents the most significant – if perhaps also long overdue – development in Canadian environmental assessment law since the Supreme Court of Canada’s landmark decision in Friends of the Oldman River Society v. Canada (Minister of Transport) (1992). I also discuss some of the implications of this characterization, including the extent to which environmental effects must be considered and the proper approach to judicial review in this context.

High Court Recruitment of Female Clerks: A Comparative Analysis of the U.S. Supreme Court and the Supreme Court of Canada

In this article, we systematically analyze the available data on SCOTUS clerk appointments to more thoroughly investigate the gender disparity in the hiring practices of its justices across the time period, 1941 to 2011, and compare this data, whenever possible, to that collected for the SCC from 1967 to 2007. In doing so, we are especially interested in exploring the impact of justice ideology and justice gender on individual decisions to hire female clerks. We maintain that the gender imbalance that has characterized the U.S. Supreme Court's composition might, at least partially, account for the discrepancy between the number of male and female clerks that have worked for this Court. It may also explain the notable relationship between a justice's ideology and his or her decision to hire female clerks.