The Supremes: Function and Impact of Our Supreme Court

The Supreme Court of Canada and its independence holds a fundamental place in Canadian democracy. This workshop will focus on the function and impact of the Court by reviewing some of its leading decisions, particularly those affecting Canadian society. We will also look at its history, composition and how it compares to the U.S. counterpart.

The Supreme Court of Canada (SCC) has its own website where it is noted that it is the ‘only bilingual (English and French) and bijural (common law and civil law) supreme court in the world’! The SCC website (where you can easily search for decisions by case name) explains many decisions in plain language under ‘Cases in Brief’ and has a wealth of information, including archived webcasts of proceedings (and live-streaming). It also provides ‘SCC—A Year in Review’, which if you search by year, the significant cases are highlighted and explained in plain language. 

The decisions of the Court are also available under ‘Canada (Federal)’ and ‘Supreme Court of Canada’.  CanLII is the Canadian Legal Information Institute, founded by the Federated Law Societies of Canada. The site is easily searched by case name and plain language commentary from the legal community on various decisions is available in the site under ‘CanLII Connects’.  As well, commentary on many of the leading decisions is available through a general internet search. There is no need to be familiar with legalese or technical language! 

Each week new decisions are listed on Canlii, providing an endless number of topics to review.

At our first class, participants will introduce themselves and then the facilitators will provide an introduction to the Court, how it operates and how it compares with its U.S. counterpart. The last class will be a wrap-up and discussion about what was learned and what more the participants would like to learn. The remaining ten classes will be used for presentations.

Presentations may be done in a variety of ways—like by exploring a court decision, reviewing a relevant book or any material related to the Supreme Court of Canada drawn from speeches, articles or online discussions. Suggestions are listed below (decisions are listed alphabetically by subject).  Presentations may be done via slides or otherwise, as chosen by the presenter.

Suggested Supreme Court (Scc) Decisions For Discussion:

Abortion:

• v. Morgentaler, 1988—is abortion a woman’s right? Here a doctor’s conviction for performing an abortion was overturned while earlier, in1975, the opposite occurred.

Administrative Law:

• Administrative Law Trilogy, 2019—Canada (Minister of Citizenship and Immigration) v. Vavilov and Bell Canada v. Canada (Attorney General), 2 cases—courts should generally review administrative law decisions on a standard of ‘reasonableness’ except where a statute states otherwise or the issue is a ‘rule of law’, such as constitutional issue.

Cannabis:

• Murray-Hall v. Quebec (Attorney General), 2023—okay for Quebec to ban possession and cultivation of all cannabis plants at home even though the Federal Government enacted an exception to its ban for four such plants.

Copyright:

• York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021—a copyright tariff was not enforceable against York University.

Criminal Law:

• v. Brown; R. v. Sullivan, 2022—self induced intoxication is a defence.
• v. Sharma, 2022—banning conditional sentencing for certain offences is constitutional.
• v. Jordan, 2016—presumptive ceiling on delay in a criminal trial—18 months for provincial court trial and 30 months otherwise.
• v. Friesen, 2020—sentences for child sexual assault should be increased given the harms.
• v. Bertrand Marchand, 2023—mandatory minimum sentences for child luring are unconstitutional.
• v. Bissonnette, 2022—consecutive parole ineligibility periods in cases involving multiple murders are unconstitutional.

Defamation:

• Hansman v. Neufeld, 2023—when defamation suit may go forward.
• Bent v. Plotnick, 2022—defamation suit can proceed since it was not a tactic to prevent speech.

Democracy:

• Toronto (City) v. Ontario (AG), 2021—reduction of councillors during an election okay.
• Frank v. Canada, 2019—can still vote if living outside Canada for over five years.

Digital:

• Google Inc. v. Equustek Solutions, 2017—world-wide injunction imposed against Google to remove a company’s website from its global search engines.

Environmental:

• Reference re Greenhouse Gas Pollution Pricing Act, 2021—legality of the carbon pricing regime.
• ENVironment JEUnesse v. Procurer General du Canada, (Youth v. Canada), 2018—can government be responsible for climate change inaction?
• Reference re Impact Assessment, 2023—environmental assessment scheme passed by the federal government was unconstitutional when it applied beyond federal jurisdiction.

Equality:

• Edwards v. Canada (AG), 1929, known as the “Persons Case”—are women people too? The highest court at the time, the Judicial Committee of the Privy Council in Britain, found women were ‘persons’ under the British North America Act (now the Constitution Act) and therefore could be appointed to the Senate, thus overturning on appeal the ‘lower’ Supreme Court of Canada 1927 decision that held that women were NOT ‘persons’. Appeals to Britain ceased in 1949 when the SCC took over as the Court of last resort.
• Ref re same sex marriage, 2004—religious freedom objection to same sex marriage.
• Andrews v. Law Society of BC, 1989— ‘equality’ in the Charter of Rights expanded to include the practice of law.

Family Law—Property Division:

• Murdoch v. Murdoch, 1973–women denied share of property on divorce; unfairness of the applicable law led to legislative change.
• Anderson v. Anderson, 2023—pre-nuptial agreement lawful even when no lawyer involved.
• Colucci v. Colucci, 2021—child support reduction rejected.
• Michel v. Graydon, 2020—child support back payments owing even once child grown.
• Canada v. Hislop, 2007—spousal benefits under CPP can’t discriminate against same sex couples.
• F v. N, 2022—UAE can decide custody of children in Ontario.
• BJT v. JD, 2022—grandmother given custody of child despite father’s closer biological tie.

Free Trade in Canada:

• v. Comeau, 2018—free trade not so free within Canada.

Freedom of Expression:

• Whatcott v. Saskatchewan Human Rights Commission, 2013; R. v. Zundel, 1992; R. v. Keegstra 1990; R. v. Taylor, 1990—definition of ‘hate speech’.
• Ward v. Quebec Human Rights Commission, 2021—how far can a comedian go?

Freedom of Information:

• Ontario (AG) v. Ontario Information and Privacy Commissioner, 2024—Minister’s mandate letters are confidential Cabinet records.

Health Care:

• Chaoulli v. Quebec (AG), 2005—public vs private health care, SCC finds that prohibition on private health insurance in Quebec law was unlawful.

Human Rights:

• Janzen v. Platy Enterprises Ltd, 1989–sexual harassment is sex discrimination under Human Rights legislation.

Immigration:

• Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007—withholding evidence from a detainee on a security certificate violated rights to due process.
• Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023—designation of the US as a safe third country does not infringe the refugee claimant’s rights to liberty and security of the person.

Income Tax:

• Symes v. Canada, 1993—paying for childcare is a woman’s choice and therefore such expenses are not required to earn income and not deductible as an expense.

Indigenous Rights:

• v. Sparrow, 1990—historical rights–first case to recognize Indigenous rights predate Canada’s existence as a country.
• v. Gladue, 1999—sentencing rules for Indigenous offenders to redress historical injustices.
• v. Marshall (No. 1 and 2), 1999—affirming Indigenous treaty rights to fish, hunt and gather in pursuit of a moderate livelihood.
• Delgamuukw v. BC, 1997—who owns the land? First account of Indigenous title in Canada.
• Reference re Act re First Nation children, youth and family, 2024—the Act is constitutional.
• Dickson v. Vuntut Gwistchin First Nation, 2024—the Charter of Rights may apply to First Nation Governments. The Court established a framework for when Indigenous collective rights take precedence over individual Charter rights.
• v. Desautel, 2021—non-resident and non-citizen can claim Aboriginal rights.
• Haida Nation v. British Columbia, 2004—strict duty to consult and accommodate.
• Tsilhqot’in Nation v. British Columbia, 2014—Aboriginal title outside of reserve extends to lands regularly used pre-Canadian sovereignty. The government had a duty to consult before clear cutting timber on those lands.
• Shot Both Sides v. Canada, 2024—while the Indigenous tribe’s treaty land entitlement claim was statute barred, declaratory relief was warranted given the Crown’s dishonourable conduct.
• Williams Lake Indian Band v. Canada, 2018—Canada liable for pre-confederation breach of fiduciary duty to the Indian Band by the Crown.

Labour Relations / Employment:

• Dunmore v. Ontario, 2001—Farm workers unite! The right to unionize without interference as freedom of association.
• Uber Technologies Inc v. Heller, 2020—The bully in the room! The arbitration clause with a driver was unconscionable and unenforceable.
• Matthews v. Ocean Nutrition Canada Ltd, 2020—How not to pay a bonus! Constructive dismissal in the workplace and what is owed an employee who ‘quits’ in these circumstances.
• Fraser v. Canada (Attorney General), 2020—RCMP officers were entitled to temporarily job-share but were denied the ability to buy back full pension credit. Since it was mostly women who took advantage of job-sharing, this was discrimination in that it had an adverse impact on women.

Lawyerly Behaviour:

• Groia v. LSUC, 2018—when uncivil behaviour is not professional misconduct.

Language Rights:

• Conseil Scolaire Francophone BC v. BC, 2020—French and English education must be of the same quality.
• Bessette v. BC, 2019—accuseds have the right to a trial in French for provincial offences.

MAID:

• Carter v. Canada (AG), 2015—The right to decide when to die and the right to medical assistance in doing so, overturning their earlier 1993 decision in Sue Rodriguez.

Obscenity:

• Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000—If I don’t like it, it’s porn! It is unconstitutional to pre-emptively detain material not banned as obscene.

Privacy:

• v. Feeney, 1997, search warrant needed to enter a private home.
• v. Tessling, 2004—surveillance technology– use of thermal imaging outside a residence by the police investigating illegal grow-ops was unconstitutional absent a search warrant.
• v. Jarvis, 2019—Violation of trust–a teacher’s in-school surreptitious video taping of female high school students (particularly in the chest area) was an offence given their reasonable expectation of privacy.
• v. Spencer, 2014—Anonymous online internet users have a reasonable expectation of privacy to subscriber information held by Internet Service Providers.
• v. Bykovets, 2024—computer IP address is personal information so police need a warrant.
• York Region District School Bd v. Elementary Teachers’ Federation of Ontario, 2024—a principal cannot search a teacher’s private communications on a school laptop.

Religious Beliefs:

• Multani v. Commission Scolaire Marguerite-Bourgeoys, 2006—your ‘dangerous object’ is my religious symbol–duty to accommodate religious observances.
• Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018—no interference on religious questions.

Sexual Assault Cases:

• v. J.J., 2022, established the constitutional validity of new rules for introducing evidence about victims by defence in sexual assault trials (post Ghomeshi case).
• v. Ewanchuk 1999–no means no.
• v. Darrach 2000, established the constitutionality of the ‘rape shield’ rules protecting victims of sexual assault from negative assumptions re prior sexual conduct.
• v. Kirkpatrick, 2022—if the agreement is sex with a condom, then if it isn’t, it’s assault.
• v. Barton; R. v. Goldfinch; R. v. RV, 2019—prior sexual history of complainants only admissible in limited contexts.
• v. Ndhlovu, 2022—mandatory lifetime registration on sex offender registry is unconstitutional.

Spousal Murder:

• v. Lavallee, 1990—self defence against abuse—a battered woman’s right to self defence in the murder of a spouse.

Book Review Suggestions:

• ‘Noise: A Flaw in Human Judgment’ by Kahneman, Sibony and Sunstein, 2021—what impacts judges, and others, in decision-making
• ‘Truth be Told: The Story of My Life and My Fight for Equality’, by Beverley McLachlin, 2020
• ‘Two Firsts: Bertha Wilson and Claire L’Heureux Dube at the Supreme Court of Canada’, by Constance Backhouse, 2019
• ‘Beverley McLachlin: The Legacy of a Supreme Court Justice’, by Moore and Jutras (ed), 2018
• ‘Claire L’Heureux Dube: A Life’ by Constance Backhouse, 2017
• ‘Defending Battered Women on Trial’ by Elizabeth Sheehy, 2017
• ‘Made in Court—Supreme Court Decisions that Shaped Canada’, by Richard W. Pound, 2014
• ‘Governing from the Bench: The Supreme Court of Canada and the Judicial Role’, by Emmett Macfarlane, 2012
• ‘Mighty Judgement: How the Supreme Court of Canada Runs Your Life’ by Philip Slayton, 2011
• ‘Power Without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism’, by Alex M. Cameron, 2009

Law Publications

• The Law Times
• Canadian Lawyer

YouTube

• ‘Inside the Supreme Court of Canada’
• ‘Learn about the SCC’
• ‘Is the Supreme Court of Canada the most Powerful Court in the World?’
• TVO Today, ‘Democracy and Canada’s Highest Court’, June 28, 2024

Film

• ‘Without Precedent—The Supreme Life of Rosalie Abella’, 2023