The court’s nine members, including Justice Michelle O’Bonsawin who was appointed September 1, 2022 to succeed Justice Michael Moldaver, have a packed schedule in the provincial capital from Sept. 12-16: The court’s schedule is here.
It includes hearing two far-reaching appeals emanating from Quebec which ask whether police must have an approved testing device on hand when they order someone to provide a breath sample (Sept. 14) and whether a provincial ban on growing cannabis for personal use is ultra vires the province of Quebec (Sept. 15).
Chief Justice Richard Wagner
In a brief but wide-ranging interview on CBC Radio’s Quebec AM with Julia Caron, the chief justice unhesitatingly answered her question as to whether Supreme Court of Canada judges should be bilingual in English and French.
“There’s no doubt in my mind, they have to be,” the chief justice responded.
“What about [such a requirement] excluding Indigenous candidates, or Quebecois candidates, or reducing the competition pool in some regions of Canada where bilingualism might not be as strong?” Caron asked.
Replied the chief justice, “I always said that people should recognize themselves in their institutions ... the most important ones like the courts and the Supreme Court. So that’s why I was very happy when the last appointment was announced, Justice O’Bonsawin who is Indigenous, but also fluently bilingual in French and English. So it means that you can satisfy the bilingualism criteria, while also representing Canadians. So I think we’re [moving] in the right direction.”
(The Liberal government’s recent policy that functional bilingualism in French and English is a prerequisite to Supreme Court appointment garners considerable support in Parliament, but remains controversial in some quarters, with critics contending that it effectively excludes many worthy unilingual anglophone jurists, as well as most qualified English-speaking Indigenous jurists who, rather than learning French, might be focused instead on acquiring the endangered Indigenous languages the federal Crown and residential schools tried to stamp out over the decades.)
In brief opening remarks at the news conference (the top court provided a text to The Lawyer’s Daily), Chief Justice Wagner told media in Quebec City that since his appointment as chief justice in 2017, “I have made it a priority to make the Supreme Court of Canada the most open and accessible top court in the world.”
The chief justice said communication initiatives in pursuit of that goal include the top court’s popular plain-language “cases-in- brief” as well as annual Supreme Court reviews highlighting the court’s work in a publicly understandable way, and his attendance each year at a press conference with national media.
“These various initiatives serve to strengthen public confidence in Canadian courts, which are open, independent and impartial institutions (translation),” the chief justice said. “And this week, the people of Quebec City are taking advantage of a unique opportunity to be able to observe, directly, the Supreme Court at work.”
While in Quebec City, the court is hosting a journalist-moderated question-and-answer session with the public Sept. 14 at the Musée de la civilisation’s Roland-Arpin auditorium. The judges also met with high school students Sept. 12, and will later meet with members of the local legal community. On Sept. 16, the judges will participate in round table discussions with Université Laval faculty and students (closed to the public and media).
Interested viewers, who are unable to attend in the courtroom in Quebec City, can see the two appeals being heard by the nine judges, via livestream through the Supreme Court’s Quebec City Visit micro-site.
On Sept. 14, the court will hear argument beginning at 9:30 a.m. (EDT) as to whether police must have an approved testing device with them when they order someone to provide a breath sample: R. v. Breault.
The Criminal Code says police can demand that a person provide a breath sample, via an approved screening device (ASD), immediately, if that person is suspected of drinking and driving within the last three hours. The ASD gives police a reading that determines if there is sufficient alcohol in someone’s body to warrant a full breathalyzer test.
Police demanded a breath sample from respondent Pascal Breault, who was walking away from a parked vehicle at a campsite near Quebec City in 2017. However, officers did not have an ASD on hand, and radioed nearby police to get a device.
While waiting, they ordered Breault to provide a breath sample. After he repeatedly refused, they arrested him. The ASD never came because the officers cancelled their request and charged Breault with failing to comply, without a reasonable excuse, with a demand by police to take a breath test.
Quebec’s municipal court convicted Breault in a decision upheld by the Quebec Superior Court. However, the Quebec Court of Appeal allowed Breault’s appeal, and acquitted him, on the basis that police must have an ASD with them when they order someone to take a breath test, so the person can “immediately” comply with the order, as per the Criminal Code. The Supreme Court’s decision on the Crown’s appeal, which asks whether police can keep someone waiting while they get an ASD, could affect policing across Canada.
On Sept. 15, at 9:30 a.m. (EDT), the top court will hear argument in Murray-Hall v. AG Quebec.
In 2019, Janick Murray-Hall challenged Quebec’s ban on owning and growing cannabis plants for personal use. He argued, on behalf of Quebec residents who might be fined between $250 and $750 for owning and growing cannabis plants, that the Quebec law is ultra vires Quebec because only the federal government has the power to enact a ban, pursuant to criminal law, which is exclusively federal jurisdiction under section 91(27) of the Constitution. Alternatively, Murray-Hall argued the Quebec ban should be struck down because the federal cannabis law (which limits, but does not ban, personal-use growing) prevails over the provincial law.
The Quebec Superior Court agreed the Quebec ban is unconstitutional. However, the Quebec Court of Appeal upheld the impugned law, holding that it pertains to matters of provincial jurisdiction in the Constitution, under s. 92(13), which allows provinces to make laws related to property and civil rights, and s. 92(16), which permits provinces to make laws of a local or private nature within a province.
The Supreme Court’s decision could affect cannabis laws in other provinces, as well as provide clarity on the law related to the division of constitutional powers.
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Photo by Marc-Antoine Hallé, courtesy Supreme Court of Canada.