These are some of the questions facing the Supreme Court of Canada, in a fall session with 19 appeals — most with interveners — that raise nationally important issues in the areas of constitutional, criminal, family, immigration, tax and labour and employment.
There is perhaps no more consequential case, however, than the Attorney General of Quebec’s appeal from a watershed Quebec Court of Appeal decision last February which affirmed, for the first time, that Indigenous peoples have the right of self-government, a form of Aboriginal right protected by s. 35 of the Constitution Act, 1982, including over child and family services — Re: Reference to the Court of appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families.
The five-judge panel unanimously affirmed the vires of most of the federal Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92) (in effect since January 2020) which recognizes the inherent right of Aboriginal self-government, including legislative authority in relation to child and family services, with no need for bipartite or tripartite agreements.
Under ss. 21 and 22 of the impugned federal Act, Aboriginal laws relating to child and family services have the same force of law as federal laws, and prevail over conflicting provisions of federal or provincial laws in respect of child and family services. The Quebec government argues that the Act exceeds federal powers under s. 91(24) of the Constitution Act, 1867, and jeopardizes the architecture of the Constitution.
Justice Sheilah Martin, left, Chief Justice Richard Wagner, centre and Justice Nicholas Kasirer hear arguments in Quebec City court.
Counsel told The Lawyer’s Daily the Quebec Court of Appeal’s ruling recognizes a third order of government, while setting the stage for Indigenous peoples to seek self-governance on matters beyond child and family services, including education and health, as well as for years of litigation in relation to the appeal panel’s holding that Indigenous laws take precedence over conflicting federal or provincial laws, unless an infringement of the Indigenous law can be justified by the relevant government under the Sparrow test, which outlines the conditions under which a government can regulate an Aboriginal right.
(A 16-page English summary of the Quebec Appeal Court’s 209-page judgment in French can be found here.
Quebec was where the Supreme Court of Canada started its fall session, earlier than usual and sitting for the second time outside Ottawa, in Quebec City, on Sept. 14 and 15. The nine judges reserved judgment in separate appeals which ask whether police must have an approved testing device with them at the same time as they order a driver to provide a breath sample, and whether Quebec’s ban on growing cannabis for personal use is ultra vires that province.
The court kicked off its regular fall schedule Oct. 4 (continuing to Dec. 8, 2022), with the judges reserving judgment on a Crown appeal from a B.C. Court of Appeal decision remitting a defence motion for a stay due to alleged police misconduct and abuse of process back to the trial court for a full evidentiary hearing. The defence seeks to stay proceedings against two men convicted at trial of first degree murder.
In 2021, the B.C. Court of Appeal affirmed the respondents’ guilt in the drug-related execution-style shooting deaths of six men in Surrey, B.C. in 2007 (known as the “Surrey Six”).
However, the Appeal Court held that the trial judge ought not to have dismissed the application at the “Vukelich” summary proceeding in which she exercised her discretion to refuse to hold a voir dire on the stay application on the basis that the serious nature of the offences committed by the respondents could not justify a stay of proceedings.
The B.C. Crown’s appeal to the Supreme Court, which drew interventions from associations for defence and trial lawyers and from the federal and Ontario Crowns, gives the apex court an opportunity to revisit the doctrine of abuse of process, and to give standardized national guidance on the principles applicable to summary dismissal applications in criminal proceedings, including: when can/should a trial judge summarily dismiss an accused’s application for a remedy, without a hearing on the merits; and how should courts balance the need to maximize trial efficiency with the accused’s constitutional right to seek an effective remedy for state misconduct: R. v. Johnston et al.
On Oct. 6, the nine judges also reserved their decision in a far-reaching appeal, which attracted 12 interveners, from a 2021 Federal Court of Appeal ruling that overturned, on procedural grounds, the Federal Court’s striking down of provisions in the Immigration and Refugee Protection Act (IRPA) implementing Canada’s “Safe Third Country Agreement” (STCA) with the U.S. with respect to refugee claimants.
In their appeal, the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and nationals of El Salvador, Ethiopia and Syria argue that designating the U.S. as a “safe third country” — thus making claimants entering from south of the border ineligible to claim refugee protection in Canada — has resulted in those refugee claimants being automatically imprisoned by U.S. authorities, in situations which also deprive them of food, medical care and “basic human dignity” — in violation of the refugee claimants’ ss. 7 and 15 Charter rights to be treated fairly and equally, and to their liberty and security of the person.
A separate appeal also involving IRPA, to be heard Nov. 29, asks whether s. 34(1)(e) of the Act — which deems a foreign national or permanent resident inadmissible on “security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada” — requires that such security grounds relate to “national security” or Canadian security generally (as argued by the appellants) — or whether the inadmissibility threshold is met if the security grounds have a nexus to the securing the lives and safety of individual Canadians (as urged by the federal immigration minister).
The Federal Court of Appeal affirmed as “reasonable” the holding of the Immigration Appeal Division and the Immigration Division that s. 34(1)(e) operates whether or not there is a connection to national security: Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156.
On Oct. 11, seven judges heard argument, and reserved judgment, in an appeal from B.C. asking the court to revisit how anti-SLAPP legislation, a specialized form of summary judgment, is to be applied in the context of a defamation action: Hansman v. Neufeld, 2021 BCCA 222.
By providing for early dismissal of baseless lawsuits, such provincial laws aim to safeguard against the use of strategic lawsuits against public participation (SLAPP) to silence individuals or groups who speak out publicly on matters of public interest but who don’t have the time or money to defend themselves against spurious litigation intended to shut them up.
The B.C. Court of Appeal held that s. 4 of the province’s Protection of Public Participation Act (PPPA) — which allows a person who has been sued over their comments to apply to have the action dismissed early if the expression relates to a matter of public interest — should not have been used to summarily dismiss a defamation lawsuit brought by a B.C. school trustee against the ex-president of the province’s teachers union. The Appeal Court held that to summarily dismiss the action would have a “potential chilling effect” on future expression in matters of public interest — thereby turning s. 4 into what one intervener at the Supreme Court calls “a powerful new tool for [defamation] plaintiffs to defeat anti-SLAPP motions”.
Key questions at the Supreme Court are whether, and under what circumstances, the “chilling effect” — which may be included as a factor in the “weighing” exercise prescribed by s. 4(2)(b) of the PPPA — can be used to support the continuation of a plaintiff’s defamation action, rather than to support its dismissal.
The appellant argues at the Supreme Court that the Appeal Court below erred in overturning the chambers judge’s dismissal of the defamation action on the basis of the fair comment defence and the chambers judge’s conclusion that the public interest in continuing the proceeding did not outweigh the public interest in protecting the appellant defendant’s expression. Nine interveners are weighing in, including the Canadian Human Rights Commission, Canadian Civil Liberties Association, West Coast Legal and Action Fund and Egale Canada.
On Oct. 12, the top court will hear the City of Sudbury’s appeal from an Ontario Court of Appeal judgment that took a broad view of who qualifies as an “employer” responsible for workplace safety violations under Ontario’s Occupational Health and Safety Act (OHSA) The 2021 ruling is seen by some as boosting health and safety protection for workers, while also raising concern for those who contract out their construction work to third parties: R. v. Greater Sudbury (City) 2021 ONCA 252.
The Corporation of the City of Greater Sudbury contracted with a company to do routine road maintenance, but it also kept some city employees on the job site to check for quality control and contract compliance.
Tragically, a pedestrian died after being struck by a road grader being backed up by the employee of the third-party “constructor” doing the roadwork. Both the city and the contractor were charged with violating Construction Projects, O. Reg. 213/91, contrary to s. 25(1)(c) of the OHSA.The city was charged on the basis that it was both a “constructor” and an “employer” within the meaning of the Act. The Ontario Court of Appeal affirmed that the city was indeed an employer, and thus was liable for violations of the Regulation, unless it could establish a due diligence defence.
The Supreme Court of Canada is asked whether the owner of a construction project which contracted out the construction to a third party to act as the constructor was responsible for workplace safety as an “employer” under s. 1(1) of the OHSA.
The intervener Ontario municipalities of York, Peel, Durham, Halton, Waterloo and Niagara argue that the Court of Appeal’s decision “marks a sea change in the regime governing occupational health and safety on construction projects in Ontario.”
According to the municipalities, “the OHSA long recognized a fair, commercially reasonable allocation of risks and responsibilities on construction sites. It allows project owners to delegate responsibility for occupational health and safety compliance to a ‘constructor’, usually the general contractor, who is expert in such matters and who accepts full control over the project. There is no precedent for extending those far-reaching obligations to an owner who engages in the limited practice of progress-monitoring and quality control.”
By contrast, the Ontario Minister of Labour urges that, “contrary to claims otherwise by the appellant, the broad and purposive approach taken by the ONCA does not ignore the intention of the Legislature. The practical reality of a workplace such as a construction project involves multiple workplace parties, be it workers, employers, or other contractors. From a worker safety perspective, the imposition of responsibility to enforce the minimum protections afforded by the OHSA on such multiple parties in an overlapping manner makes sense, as it increases the overall emphasis on worker safety. From a worker safety perspective, it matters not if an entity, operating at the workplace, confronting workplace hazards, is an owner, employer or constructor; each should have a duty to ensure compliance.”
Other Supreme Court of Canada appeals to be argued in the current session include:
R. v. McColman (Nov. 1) — Do police have authority, under s. 48(1) of Ontario’s Highway Traffic Act or at common law, to conduct a random sobriety check, after a driver leaves the public roadway and drives into private property?
The Ontario Crown asks the Supreme Court to overturn a decision by a majority of the Ontario Court of Appeal which the Crown argues enables drivers to “immunize themselves by steering onto private property whenever they spot police on the horizon or in their rearview mirror. Any type of private property will suffice: a parking lot, a field, or one of the driveways that line residential streets. Even if police intended to check the driver’s sobriety on the public street, the driver’s move onto private property shields them from the check.”
The respondent driver, whose convictions for impaired driving and driving while over 80 were overturned on appeal, calls the argument that police have the authority to enter onto private property to conduct a random sobriety check because an officer formed the intention to stop the vehicle prior to it leaving the roadway “not tenable at law.”
“If you decide to step behind the wheel of an automobile today you must remember that you, as the driver of the automobile in Canada, have no civil liberties,” the defence cautions. “From random stops, arbitrary detention, to mandatory breath tests, to denial of counsel, they are part of the ‘impressive array’ of weapons police currently possess to fight drinking and driving. Nevertheless, the Crown is seeking further power ostensibly, in the name of road safety.”
Deans Knight Income Corp. v. R. (Nov. 2): The appellant is seeking to overturn a 2021 Federal Court of Appeal decision that applied the general anti-avoidance rule (GAAR) to a tax loss monetization transaction, and ruled that an agreement the company entered into with a venture capital firm was abusive tax avoidance: Canada v. Deans Knight Income Corporation 2021 FCA 160.
The ruling created uncertainty for tax practitioners, while leaving the appellant on the hook for more than $22 million in tax arrears interest and penalties.
Des Groseillers et al. v. Revenue Agency of Quebec (Nov. 3): This appeal, in relation to Quebec’s Taxation Act, asks whether an individual’s donation of stock options to a registered charity gives rise to a taxable employment benefit where the donor receives no actual consideration.
The appellants, Yves Des Groseillers and BMTC Group Inc., appealed assessments made by the respondent Quebec tax agency which, during the course of its audits, added amounts to Des Groseillers’s taxable income as additional employment income, representing the total value of the stock options donated to registered charities, for which Des Groseillers had claimed tax credits.
Anderson v. Anderson (Dec. 5): This Saskatchewan appeal asks whether the analysis in Miglin v. Miglin, 2003 SCC 24 should be applied by judges who are considering non-binding agreements.
Miglin is a leading decision which sets out the two-stage test that applies when a spousal support claimant applies for support after their support claims were already settled by binding agreement.
If the Supreme Court finds that the Miglin analysis does apply to non-binding agreements, is it open to a judge to find that non-binding agreement enforceable, but depart from the agreement’s terms?
Photo of Supreme Court justices by Supreme Court of Canada Collection
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