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Michael Feder of Vancouver’s McCarthy Tétrault LLP.

SCC’s winter term features Charter cases on sentencing, public-interest standing and speedy trials

Wednesday, January 12, 2022 @ 12:10 PM | By Cristin Schmitz

Last Updated: Friday, January 14, 2022 @ 2:40 PM

As the Supreme Court of Canada’s winter session shifts into high gear this week, 22 interveners are lined up to have their say on the rules governing public interest standing in constitutional or other legislative challenges.

A.G. of B.C. v. Council of Canadians With Disabilities, a civil procedure appeal being argued Jan. 12 and 13, 2022, has attracted the most interveners among a raft of other interesting constitutional cases that implicate questions related to, for example, mandatory minimum penalties, equality rights, speedy trials and admissibility of evidence.

Michael Feder, McCarthy Tétrault LLP

The public standing appeal, being argued one week short of a decade after argument was made in the leading case, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, is about access to justice, said Michael Feder of Vancouver’s McCarthy Tétrault LLP.

Feder,Katherine Booth, Kevin Love and Connor Bildfell are co-counsel for the respondent Council of Canadians With Disabilities (CCD). The CCD succeeded below in overturning a 2020 B.C. Supreme Court decision that summarily dismissed the CCD’s constitutional challenge to a B.C. law authorizing non-consensual psychiatric treatment for involuntary patients, on the basis that the CCD lacked public interest standing in the absence of individual co-plaintiffs affected by the impugned law.

“Public interest standing determines who can sue the government to vindicate the rights of others, especially others who may not be able, or willing, to sue themselves,” said Feder of the focus of the appeal, which case the non-profit advocacy group pursued alone after two individual applicants dropped off.

Mentioning some of the interveners, Feder added “if the Attorney General’s argument succeeds, groups like the CCD, the Canadian Civil Liberties Association, the B.C. Civil Liberties Association, the Canadian Constitutional Foundation, and so on, will be further impeded in their ability to bring constitutional cases in the public interest. And lawyers like me, who often act pro bono for those groups, will be less willing to take on new cases [as] protracted debates about standing consume a lot of time, and aren’t terribly rewarding — except to governments, which can, and do, use them to delay or prevent merits determinations.”

Of the 22 appeals the court is hearing from Jan. 11 to March 25, 2022, only seven are not criminal, including cases on child relocation in family law; de facto expropriation via zoning; compensation for “making available” under the Copyright Act; and the question whether receivers in bankruptcy and insolvency cases are bound by arbitration clauses in contracts they are enforcing (see summaries below).

Due to the continuing COVID-19 pandemic, the Supreme Court’s Ottawa courthouse remains closed to visitors, with counsel appearing via Zoom before the judges, who mostly are sitting in person in the courtroom.

When the winter session kicked off Jan. 11, nine judges heard argument, and reserved decision, in A.G. Canada v. Collins Family Trust, a federal Crown appeal which asks whether the equitable remedy of recission was available to unwind dividend payments to a family trust that resulted in unforeseen tax liabilities, as the transactions were mistakenly premised on a widely held interpretation (accepted by the Canada Revenue Agency) of the Income Tax Act that that later turned out to be wrong, according to the Tax Court and Federal Court of Appeal.

The appellant attorney general warned of “critical implications for Canadian tax administration” from the answer to the question whether “taxpayers can rely on equity to undo transactions because they give rise to unintended or unwanted tax consequences.”

The outcome of the top court’s consideration this week of how to properly apply the test for public interest standing set out in Downtown Eastside, 2012 SCC 45 — an issue that can arise in the context of many kinds of cases — is potentially even more far reaching.

The appellant Attorney General of British Columbia argues that in 2020 the B.C. Court of Appeal articulated “a new approach” to the Downtown Eastside multifactored test for public interest standing that gives too much weight at the outset to access to justice and the principle of legality, over other valid countervailing concerns such as the importance of properly allocating scarce judicial resources and screening out “the mere busybody. “

The Court of Appeal, “in effect, dispensed with the need for a ‘sufficiently concrete and well-developed factual setting’ required by Downtown Eastside, finding that ‘systemic’ constitutional challenges do not necessarily require an individual plaintiff — or even the specific factual context of an individual’s case,” the Crown states in its written argument. 

Describing the Crown’s arguments as “alarmist nonsense,” the respondent CCD contends that the Court of Appeal just followed, and correctly applied, the decade-old test, and did not hold (as per the Crown) that constitutional challenges can be adjudicated “in a factual vacuum” or “without any factual foundation” based on “reasonable hypotheticals.”

Cheryl Milne, University of Toronto

Cheryl Milne, University of Toronto

Like several of the other interveners in the case, Cheryl Milne, who with fellow University of Toronto law professor Kent Roach represents the David Asper Centre for Constitutional Rights, questioned why the Supreme Court granted leave in CCD, so soon after Downtown Eastside.

She said many of the non-governmental interveners start from the premise that the current public interest standing test is appropriate and sufficiently flexible, so their interventions are largely defensive, while others are advocating for an even more flexible or broad-based test.

“The attorneys general who are intervening are generally arguing for the need for individual claimants in systemic cases,” she said.

But Milne said unconstitutional laws should not be permitted to stand, simply because there are no individuals with sufficient resources to challenge them.

“There is a reason that organizations representing refugee claimants, prisoners and people with mental health disabilities are intervening in this case,” she explained. “Also represented are environmental and animal rights groups who advocate on issues for which there is often not easily identifiable individuals who are particularly harmed by the challenged government action.”

Milne suggested “the Crown’s position risks setting up increasing barriers to systemic claims, including evidentiary burdens at early stages of the proceedings, and increased costs associated with defending attempts to shut down the litigation on procedural grounds rather than the substance of the claims.”

In her view, the “best case” outcome of the appeal with respect to the law on public interest standing would be “that the court maintains the current test, with language that acknowledges the need for flexibility in the context of claims made on behalf of particularly vulnerable groups for systemic remedies.”

The worst-case scenario would be a slightly more rigid test, that requires evidence of representation, or proof of individual impacts at an interlocutory stage in the proceedings, she added. “It is important to remember that this is being brought in the context of [a summary judgment] application, which is already designed as a more streamlined and efficient proceeding.”

Fahad Siddiqui of Toronto’s Norton Rose Fulbright Canada LLP, counsel for the intervener Federation of Asian Canadian Lawyers and Canadian Muslim Lawyers Association, told The Lawyer’s Daily “I think the best-case scenario is [the court gives] an affirmation of what the court itself said in Downtown Eastside, with a little more prescription for the benefit of first-instance courts ... [so that] the court will say to first-instance courts, ‘Do not hesitate to examine the panoply of factors that public interest litigants are telling you are preventing actual individuals from bringing these cases.’ ”

(Counsel for the appellant Crown had not responded to a request for comment by press time.)

Other appeals to be heard during the winter session include:

Copyright (Jan. 18): This statutory interpretation appeal from Federal Court deals with whether copyright owners are entitled to additional compensation when their work is made available via the Internet. It asks the court to clarify the scope and effect of s. 2.4(1.1) of the Copyright Act, enacted in 2012: Does the provision render the act of making a work available to the public for on-demand access “a communication to the public by telecommunication” that attracts a licence fee, whether the work is subsequently transmitted as a stream, a download, in another format, or not at all? Did Parliament intend to create a distinct and compensable “making available” right, or does the provision simply clarify an existing right already delineated by the court? Does s. 2.4(1.1) impose obligations both when a work is made online, and when it is shared or reproduced? Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al.

Bankruptcy and insolvency/arbitration (Jan. 19): This B.C. appeal deals with the enforceability of mandatory arbitration clauses in the context of bankruptcy and insolvency. It asks the court to clarify one of arbitration’s key, and most vexing, principles: the “separability doctrine:” is the doctrine’s purpose always to uncouple the arbitration agreement’s validity from the underlying contract’s validity, and thereby safeguard arbitral authority? Or is its purpose only in play when parties subject their arbitrations to a rule of separability? Can receivers disclaim arbitration clauses while enforcing in court private contractual claims arising from the same agreement? Do superior courts have jurisdiction under the Bankruptcy and Insolvency Act to stay, or otherwise render inoperative, arbitration agreements in the context of an insolvency proceeding? Peace River Hydro Partners, et al. v. Petrowest Corporation, et al

Sentencing (Feb. 8): Is the 490.012 Criminal Code requirement, which mandates lifetime registration and reporting under the Sex Offender Information Registration Act (SOIRA) for offenders convicted of more than one designated offence, overbroad and/or grossly disproportionate and therefore contrary to s. 7 of the Charter? A majority of the Alberta Court of Appeal upheld the law, R. v. Ndhlovu 2020 ABCA 307. SOIRA was amended in 2011 to remove judicial discretion to refuse to order an offender registered when an accused had committed a designated offence, and added s. 490.013(2.1), which requires offenders to be registered for life where the offender is convicted of more than one listed offence, regardless of the nature of the offence (summary or indictable), whether such offences arise out of the same set of circumstances, and without regard to the seriousness of the underlying offences. 

Speedy trial (Feb. 9, 10): These Crown appeals argue that the Quebec Court of Appeal did not properly take into account defence delays when determining that the accused in two separate cases had not been accorded their s. 11(b) Charter right to be tried within a reasonable time and in granting a stay of proceedings. The decisions could be more far-reaching, however, as the intervener Ontario Crown, for example, is asking the top court to depart from a decades-old precedent that a stay of proceedings is the minimum remedy for a Charter s. 11(b) violation — a proposal vigorously opposed by the intervener Criminal Lawyers’ Association (Ontario): R. v. Marc-André Boulanger; R. v. Mélanie Ste-Marie, et al.

Expropriation (Feb. 16): The Nova Scotia appellant landowner/developer asks the court to revisit the law of de facto expropriation, and some interveners in support of property rights ask the court to liberalize the test in Canadian Pacific Railway Co v. Vancouver (City), 2006 SCC 5. The appellant alleges the respondent Halifax Regional Municipality encourages members of the public to use its lands as a public park, thereby effectively expropriating the land without paying for it. However, its claims for damages on the basis of de facto expropriation, abuse of public office and unjust enrichment were summarily dismissed. Does the exercise of a zoning power which deprives a landowner of the reasonable uses of its land in favour of creating a public park carry an implied obligation to pay compensation? Does a de facto expropriation require not just a deprivation to a property owner, but also an acquisition of a benefit by government? For example, the intervener Attorney General of British Columbia urges the court to affirm that, for no-fault “takings” liability to exist, a government must acquire a beneficial interest in property — a bright line at which point regulation becomes a taking of property warranting compensation.

Sentencing (March 22): The appellant, who fired rifle shots into an occupied residence, pleaded guilty to the intentional discharging of a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place under s. 244.2(1)(a) of the Criminal Code. The offence carries a mandatory minimum penalty (MMP) of four years. The trial judge struck down the MMP in s. 244.2(3)(b) of the Code as a violation of the Charter’s s. 12 prohibition against cruel and unusual punishment, and instead sentenced the appellant to three and a half years. The Alberta Court of Appeal set aside the declaration of invalidity and sentenced him to four years. This appeal, and several others in the winter session, enable the Supreme Court to revisit its s. 12 Charter jurisprudence, including the law set out in R. v. Nur 2015 SCC 15, and R. v. Lloyd, 2016 SCC 13, which has led to the striking down by lower courts of many MMPs attached to broadly defined offences that capture a wide range of behaviour (i.e. from less serious to more serious): Jesse Dallas Hills v. Her Majesty the Queen.

Sentencing (March 24): Is a life sentence without parole a violation of the Charter’s ss. 7 and 12 protections against unfair deprivations of liberty and cruel and unusual punishment? The Quebec Court of Appeal declared invalid s. 745.51 of the Criminal Code which, in the event of multiple murders, enables a sentencing judge, in addition to imposing a life sentence, to order parole ineligibility periods, to be served consecutively, of 25 years for each murder. Respondent Alexandre Bissonnette shot worshippers at the Great Mosque of Québec, pleading guilty to 12 counts, including six of first-degree murder. He went on to successfully challenge the constitutional validity of the Code’s authorization of stacked periods of parole ineligibility, with the Quebec Court of Appeal ordering a total period of parole ineligibility of 25 years in his case (the sentencing judge ordered 40 years). The intervener Canadian Civil Liberties Association argues that sentences without the possibility of review or release during an offender’s lifetime fall within the category of punishments that are inherently demeaning of human dignity and exceed the state’s power to punish as constrained by the Charter. The intervener Ontario Crown argues jurisprudence in England and Europe supports the availability of “whole life” sentences, and that the discretion accorded to sentencing judges enables them to devise sentences in egregious murder cases that more precisely reflect the gravity of the crime: A.G. Quebec, et al. v. Bissonnette.

Family law (March 25): In this child relocation case from Ontario, the appellant mother took her two children from their home in Dubai, with their father’s consent, on what was supposed to be a month-long visit to her parents in Canada. She refused to return. As the United Arab Emirates is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, the father couldn’t seek their return under the convention. Instead he successfully applied under s. 40 of Ontario’s Children’s Law Reform Act (CLRA) for a declaration that the mother is wrongfully keeping the children in Ontario, and for an order that returning the children forthwith to the UAE. The order is stayed pending the outcome of the appeal. The top court will decide whether the trial judge erred in interpreting and applying ss. 23 and 40 of the CLRA, and the relevance thereto of the “best interests of the child” principle: F. v. N.

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