Carter #2: A Template for Future Charter Appeals

Why Carter v. Canada Was So Speedy:

The Supreme Court of Canada (hereafter “SCC”) produced the Carter decision on assisted dying, one of the most important in its history, in record time, slightly over three and a half months. It strikes me that they were able to do so because they had already decided two key technical legal issues in their earlier decision of Canada (Attorney General) v. Bedford (the prostitution case reported at 2013 SCC 72). In Carter, they simply applied to themselves the approach they had defined in Bedford for how all appellate courts should deal with these types of cases.

Bedford and Carter are companion pieces.

Both are applications under s. 52 of the Constitution Act for a declaration that particular provisions of the Criminal Code were contrary to section 7 of the Charter.

Both dealt with issues which, on the surface, appeared to have been decided by earlier SCC decisions. Both attracted many intervenors. These are organizations interested in the issue who wanted to put their perspective before the court.

Both had massive amounts of evidence including affidavits of plaintiffs, cross-examinations, social science studies, reports, expert evidence, and a host of other social and legal materials.

Both trial judges found that, in law, they could “distinguish” the earlier SCC precedent, and declare the relevant provisions of the Criminal Code unconstitutional.

Both were overturned on appeal by their respective Courts of Appeal primarily on technical grounds. Both trial judges were upheld, in whole or in part, by unanimous (9:0) decisions of the SCC.

The ultimate result of both cases was that the Supreme Court’s declaration of invalidity was suspended for twelve months to allow Parliament to pass new laws to fill the void if they so chose.

The technical issues at stake are important and will have significant effects in future such Charter litigation. Together, Bedford and Carter  form a package which tells lower courts (Courts of Appeal and trial courts) how these types of cases are to be handled in the future.

What are these two key technical issues? 1) That trial judges could revisit SCC precedents in certain limited circumstances. 2) That appeal courts should defer to all findings of fact of trial judges “absent palpable and overriding error.” In other words, if the findings of the trial judge are “reasonable” and “supported by the evidence,” appellate courts should not interfere.

Let me explain.

Whither stare decisis?

The doctrine of “stare decisis” (which means “to [stand] by decisions and not to disturb settled matters”) is a fundamental principle of our common law legal system. It has two meanings: that lower courts must follow decisions decided by higher courts in the hierarchy (“vertical stare decisis”), and that cases must be decided the same way when their material facts are the same (“horizontal stare decisis”). Clearly, the rule is designed to promote consistency, predictability, and certainty. If any judge could determine any matter however he or she wanted, without considering “stare decisis,” ours would not be a system characterized by the rule of law.

That being the case, how is it that the SCC would uphold the right of a trial judge like Justice Smith of the BC Supreme Court to deviate from their earlier decision against assisted dying in the Rodriguez case (1993)?

They did so because: 1) new legal issues were raised in Carter that had not been before the court in Rodriguez, and 2) there was a change of circumstances or evidence that ‘fundamentally shift(ed) the parameters of the debate.”

Justice Smith was not allowed to “overrule” Rodriguez, but she was permitted to “distinguish” it. In so doing, she had to consider what it was that Rodriguez actually decided and determine whether there was any room for further consideration.

The trial judge found, and the SCC agreed, that although the “who, what, when and where” (the “adjudicative facts”) of the plaintiffs in Rodriguez and Carter were the same, the context of their situation was different.  The law argued by counsel, and “the legislative and social facts” in the evidence before the court were not the same.

“Legislative and social facts” are all the other evidence including facts about society at large, established by complex social science evidence, the experience in other jurisdictions where assisted death was now legal, evidence of current Canadian palliative practices and prosecution policies, and medical ethics.

The law which had developed since 1993 were new legal principles defining the Charter, particularly principles relating to “overbreadth” and “minimal impairment.” In 2012 when Carter was heard before Justice Smith in the BC Supreme Court, counsel argued these  principles and the trial judge was obliged to consider them.

As the SCC said in Carter (para 44), “stare decisis is not a straitjacket that condemns the law to stasis.” The dictionary meaning of “stasis” is “a slowing or stopping of the normal flow of bodily fluids,” a condition of no action or progress, “an abnormal state in which the normal flow of blood is slowed or stopped.”

By rejecting the notion that all lower courts must “rigidly follow (SCC) Charter precedents unless and until this Court sets them aside(para 43),” the court recognized the reality of our common law legal system. It is best thought of as a living tree, rooted in fundamental principles, but which is constantly evolving as lower courts apply new law to new evidence before the courts.

Sometimes these cases go up to the hierarchy on appeal, perhaps even to the SCC. More often they do not. Together they form the “jurisprudence” which is the common judge-made law on the issue in Canada.

Modelling a doctrine of appellate restraint

In the past, Courts of Appeal applied a rule to the effect that they should show deference to the findings of trial judges on the credibility of witnesses and the objectivity of expert witnesses. The rule also said that appellate courts did not need to defer to the trial judge’s findings on social and legislative facts. The SCC expressly rejected that approach in both Bedford and Carter.

The SCC’s position on this is clear: “Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact….” (Bedford, para. 49)

The SCC goes on to note “two important practical reasons” why this should be the practice.

1) If it were not the case, appeal courts would be required to “duplicate the sometimes time-consuming and tedious work of the first instance judge in reviewing all the material and reconciling differences…. In a review for error—which is what an appeal is—it makes more sense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal to determining whether those errors vitiate the trial judge’s conclusions.” (Bedford, para. 51)

2) As social and legislative facts may be intertwined with the adjudicative facts and with issues of the credibility of experts, it is impossible to apply different standards of review to the different types of facts. Since social science evidence is best presented through experts and the assessment of expert evidence relies heavily on the trial judge, there is no longer any rationale for different standards of review. (Bedford, paras 52-53).

In Carter, the SCC applied this doctrine of judicial restraint to themselves.. In doing so, they were modelling what they now expect from trial courts and appellate courts across the country. Among other developments, these technical decisions will likely streamline how our legal system handles these types of cases in the future, making it more efficient and more modern.

If the SCC can deal with one of its most important and most sensitive cases in such record time (three plus months), how can other courts not do the same?

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Carter v. Canada (Attorney General) #1: Judicial Restraint at its Best

The Supreme Court of Canada (hereafter SCC) decision in Carter v. Canada (Attorney General), released February 6th, is of vital importance. This decision has grabbed the headlines and stirred public discussion. About the pros and cons of assisted death. About the role of the SCC. About the relationship of the Court to legislators. These are big issues, now squarely on the agenda in the year ahead.

My focus is not assisted death in substance; reasonable people differ on that subject. My interest is in what the decision tells us about judicial restraint. Andrew Coyne, in the National Post (February 14th), under a headline proclaiming “The Death of Judicial Restraint,” cited Carter as an example of judges changing the law “only because they wanted to.” He lamented “the fading notion that the courts, in interpreting the law, should be bound by…something—the written text, the historical record, precedent, logical consistency. …[and]…with the legalization of ‘assisted death, (the court) has slipped free [from these constraints] altogether.” I emphatically disagree.

In my view, the decision of the SCC in Carter is a model appellate decision demonstrating that the legal process in Canada is alive and well, and that the SCC is doing its job superbly. In a totally focused judgment, the SCC only decided what they had to decide, to review the decisions of the trial judge and the BC Court of Appeal, in this particular case.

Repeatedly, they declined to decide what was not necessary for their immediate purpose. Their focus was on the evidence put in at trial and on the findings of fact of the trial judge. This included evidence of the effect of the existing law on the plaintiffs before the Court, and evidence of the plethora of contemporary experience on the issue, since the issue was last considered by the Supreme Court of Canada, itself, in 1993. All relevant to the precise Charter issue before the court. Their reasons are replete with references to the jurisprudence which shaped their decision.

In my view, faced with the unenviable job of dealing with a matter known to be highly contentious, they had the courage to make the decision required by law and, out of deference to Parliament, the wisdom to make it as narrow as possible.

In this post today and others to follow, I will discuss what the SCC actually said in Carter, and what it teaches us about the nature of Canada’s legal system. I am interested by the fact that their decision, although argued as recently as October 15th, 2014, was produced so soon. Also that it was a unanimous 9:0 decision, written not by one judge but by the Court as a whole, including eight out of nine judges appointed by Conservative governments. I think that the Court was able to render their judgment so quickly precisely because it is a very narrow decision characterized by extreme judicial restraint. The sad truth is that a commentator as smart and well-informed as Andrew Coyne cannot see “judicial restraint” when it is staring him in the face.

In this post, I will unpack the decision for those of you who are not legally trained (and for lawyers who may be intrigued by my argument). What were the issues before the court? Where did the case originate? What did the SCC actually decide? What supports my view that the SCC was extremely restrained in their approach to the case?

Blog posts are generally short, such that each of these topics could be a post unto itself. Because the topics are inter-related and essential information, however, I thought it best to keep the discussion together. The result? A post which is essentially a mini-essay. The easiest way to read it may be to print a hard copy.

History of the case

Carter began as a “test case” before Justice Lynn Smith of the British Columbia Supreme Court in the fall of 2011. The plaintiffs included Gloria Taylor, who had ALS, and Lee Carter, whose mother Kay Carter had suffered from advanced spinal stenosis and had travelled to Switzerland in 2010 to secure an assisted death legally.

They sought a judicial declaration that the absolute ban on assisted death in the Canadian Criminal Code was contrary to their Charter rights. The absolute ban is found in s. 14 and s. 241(b) of the Criminal Code. Section 14 says that “No person is entitled to consent to have death inflicted on him… .” Section 241(b) says that “Everyone who… aids or abets a person to commit suicide is… liable to jail for up to fourteen years.”

They argued that these provisions denied them the assistance of a physician should they want to end their own life and, by doing so, violated their rights under s. 7 and s. 15 (1) of the Canadian Charter of Rights and Freedoms.

Section 7 provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 15 (1) says that “ Every individual is equal… under the law and has the right to the equal protection and equal benefit of the law without discrimination… based on… physical disability.” Also relevant to a Charter challenge is section 1 of the Charter which “guarantees the rights… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Canadians who assert in court that they have a right under the Charter have the burden (known as “onus”) of proving that some law or state action violates or violated their right or rights. If they are successful, the onus then shifts to the government to prove that any violation is “justified in a free and democratic society.”

Don’t worry if you do not understand the significance of the lingo used in the Charter. The Charter was enacted in 1982 and, over the succeeding 32 years, thousands of judges from the SCC to the Provincial Courts have grappled with the meaning of the Charter in individual cases before them. This body of law (known as “jurisprudence”) is sophisticated and constantly changing. In Carter, you will learn about the meaning of s. 1 and s. 7 of the Charter. You will also learn how courts approach a Charter analysis. Informed lay people do not need to know all the details. It is sufficient to understand what the heck is going on. I hope this post will help.

Getting back to the history of the case, the plaintiffs wanted a Declaration suspending the existing law until Parliament could pass a new one. In the interim, they sought a constitutional exemption from prosecution for Gloria Taylor and anyone who assisted her in dying.

The defendants were the Attorneys General of Canada and of British Columbia. They argued that Justice Smith was bound by the 1993 decision of the SCC, in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, which had upheld the same sections of the Criminal Code in a similar case. They said that the trial judge had no option but to dismiss the application.

In June 2012, Justice Smith released her 1416-paragraph decision: Carter v. Canada (Attorney General) 2012 BCSC 886. After an “exhaustive review” of all the evidence and after considering the legal arguments of counsel, she held that she could “distinguish” Rodriguez. That means that, on the new law argued before her and the facts proven in the evidence at trial, there was room for her to reconsider Rodriguez. She concluded that the absolute ban in the Criminal Code violated the s. 7 and s. 15 Charter rights of Gloria Taylor and those who might assist her, and that the plaintiffs should be granted the relief they sought. She later ordered special costs against Canada and British Columbia.

The Attorney General of Canada appealed to the British Columbia Court of Appeal. The majority of that court (2:1), in 2013, held that Justice Smith was wrong, that she was bound by Rodriguez, and set aside her orders [Carter v. Canada (Attorney General), 2013 BCCA 435 at para 352]. On January 18, 2014, the SCC granted leave to the plaintiffs to appeal that decision. The SCC properly agreed to hear their appeal as it clearly raised issues of national importance.

The Supreme Court Decision in a Nutshell
(paragraph numbers of SCC decision are in parentheses)

The SCC found s. 14 and s. 241(b) void, “insofar as they deprive a competent adult of such assistance where the person (1) clearly consents to the termination of life, and (2) 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.” (paras 4, 147)

The Court found that the plaintiffs had met their onus of showing that the absolute ban on assisted death violated the s. 7 Charter rights of Gloria Taylor and people like her to “life, liberty and security of the person….” All three s. 7 interests as defined by the caselaw were affected.

(1) With respect to the right to life, the SCC noted the evidence that people in the position of Gloria Taylor had no option but to suffer “severe and intolerable suffering” until they died of natural causes or to take their own lives prematurely while they were still competent to do so. (para 1). This fact was not disputed by any of the parties before the Court. In these circumstances, the existing caselaw applied to the effect that “the right to life is engaged by the threat of death… where law or state action imposes death or an increased risk of death, directly or indirectly.” (paras 57-63)

(2) With respect to liberty and security of the person, the SCC agreed with the trial judge that “the law has long protected patient autonomy in medical decision-making” and “the right to make fundamental personal choices free from state interference.” (paras 64-68)

As to the meaning of “the principles of fundamental justice,” the SCC explains that laws impinge on “life, liberty and security of the person” all the time. When they do, however, the caselaw has recognized three “principles of fundamental justice” which are central: laws “must not be arbitrary, over broad, or have consequences that are grossly disproportionate to their object.” (paras 71-72)

To see whether the law meets these minimum standards, the court must identify the object of the law. In this case, what is the purpose of the absolute ban on assisted dying? (para 73). The SCC found that the majority in Rodriguez had “concluded that the object of the absolute ban was to protect vulnerable persons from being induced to commit suicide at a time of weakness.” (paras 74-82). The SCC found no legal reason to disagree now. The fatal flaw of the absolute ban was not that it was arbitrary, but that it was overly broad, because it swept into its ambit people like Gloria Taylor, who clearly were not “vulnerable.” (paras 85-88)

Turning to whether the breach was justified under Section 1 of the Charter, the only question was proportionality. (paras 94-101). The key issue? Whether the absolute ban “was the least drastic means of achieving the legislative objective?” The Court found no error in the trial judge’s conclusion that, on the evidence of current practices in Canada and in permissive jurisdictions elsewhere, “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards.” (paras 102-121). Since the evidence did not show that the absolute ban was minimally impairing, the SCC agreed with the trial judge that the government had not met its onus of proving that s. 1 justified the breach.

To allow Parliament, Legislatures and professional colleges time to respond to their decision, the SCC suspended the effective date of its decision for one year. (paras 126, 128, 147)

The SCC held that nothing in their declaration of invalidity would compel physicians to provide assistance in dying and “the Charter rights of patients and physicians will need to be reconciled.” (para 132)

It upheld the order of the trial judge for special legal costs against Canada for the entire proceeding, and against British Columbia for 10% of the costs of the trial. (paras 133-146)

Examples of Judicial Restraint

The SCC is very clear that their decision only applies to the factual circumstances of the plaintiffs before the court. (para 127). The SCC refused to comment about other situations when other classes of people may seek assisted death. This was the narrowest basis upon which they could deal with the case before them.

The SCC rejected arguments from the plaintiffs seeking a more expansive definition of the existing caselaw. Three examples:

  1. They declined to alter the existing law that both the feds and the provinces have concurrent jurisdiction over the issue for different purposes. (paras 49-53).
  2. They upheld the existing legal definition of the s. 7 “right to life,” that it implies a threat of death, and refused to adopt a broader, qualitative approach to the “right to life.” (paras. 59-63).
  3. They refused to consider any principle of parity because such a principle was “not yet recognized in the jurisprudence.” (para 92)

They limited their discussion of the “liberty” interest only to those who seek assistance in dying, and did not consider those who might provide such help. (para 69)

In defining the object of the existing Criminal Code ban, they rejected federal government submissions’s to broaden the definition beyond that adopted by the majority decision in Rodriguez, that the object was “to protect vulnerable persons from being induced to commit suicide at a time of weakness.” It noted that “all the parties except Canada accept that formulation of the object.” (paras 73-78).

The SCC noted that the federal government at trial had conceded that the present law caught people outside the class of people intended to be protected by the objective of the law. (para 86). This basic finding of fact helped ground the decision that the law was overly broad.

The SCC refused to consider additional legal claims or doctrines that were “unnecessary.” Three examples:

1) Having found a “severe” violation of s. 7, that decision was sufficient to deal with the case. Unlike the trial judge, the SCC declined to deal with any alleged equality rights of the plaintiffs under section 15 of the Charter. (para 93)

2) Having found a “severe” violation of s. 7 because it was “overly broad,” the SCC refused to discuss “gross disproportionality” as an element of the s. 7 analysis, as it also was “unnecessary.” (para 90)

3) Having found that the existing absolute ban did not meet the basic Section 1 Charter requirement of “not minimally impairing,” the SCC declined to “weigh the impact of the law on the rights of the appellants against the beneficial effect of the law on society.” On the well-established caselaw (Oakes, 1986), this step in the analysis also was “not necessary.”

The SCC clearly recognized when the SCC should defer to Parliament and the Legislatures, and that the standard expected from the state was not “perfection” but only what is “reasonable.”  Where there is a “complex regulatory response,” a high degree of deference is owed to…Parliament.….” The contested sections of the Criminal Code were not such a response.

As it did in Canada (Attorney General) v. Bedford 2013 SCC 72 (the prostitution case), the SCC delayed the effective date of their decision for one year. Why? “… for Parliament and the provincial legislatures to respond, should they choose to do so, by enacting legislation consistent with the constitutional parameters set out in these reasons.” ( para 126).

The SCC followed their decision in Bedford (2013), that the trial judge did have legal authority to reconsider Rodriguez and that the SCC should defer to her findings of fact as “they were reasonable and open to her on the record.” (para 109). More on these issues in my next post.

You Decide

Who is right? With this, and the post to follow (shorter I promise), you can decide. Better still, read the judgment itself, reported on the Court website at Carter v. Canada (Attorney General), 2015 SCC 5. Do not be intimidated! The first few pages are the standard mechanics of any court decision: the parties, the date of the hearing, a short summary of the judgment called a headnote, the citations, and a list of counsel who appeared at the hearing of the appeal. The actual judgment of The Court starts with a Table of Contents and paragraphs numbered sequentially from paragraph 1-148. The Court writes very well, and you will be surprised at how accessible their judgment is to read. One of the duties of judges is to write reasons for their decisions, so that litigants and the public can understand why they came to the decision they did. You decide if The Court did its job.


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Sexual Assault and the Criminal Courts: A Response to the Globe and Mail Editorial

Following the Bill Cosby and Jian Ghomeshi affairs, a year-end Globe and Mail editorial (published December 28/29th and entitled “The year justice changed”) proclaimed 2014 “the tipping point in a shift that is alarming to a country built on… due process and… fairness,… from a presumption of innocence to a tolerance of public shaming.” The editorial correctly spoke to fundamental issues about our criminal justice system which warrant attention. Public shaming versus due process. A presumption of innocence versus a presumption of guilt. Crowd “justice” versus justice in the courts.

What was so alarming about the Globe editorial, however, was its simplistic conclusion that the supposed “shift” to “public shaming”… “is easily explained by the failure of our justice system to defend sexual assault victims.” The specific problems identified were:

1) the police dismissing the majority of victims’ complaints,
2) courts not imposing “tougher sentences on convicted offenders (the average in Canada is two years, often conditional)”, and
3) our law of consent which is “progressive and clear on paper” but “mud” in court as “… our society continues to think it reasonable that women bear some of the responsibility….”

No sources for these assertions were identified.

In my experience, the above reveals a shocking misunderstanding about the criminal law of sexual assault, and how the courts have dealt with it since the last major reform over 30 years ago. I felt I was in a time warp, and did not recognize what I was reading.

First, the crime of “sexual assault” as defined in the early 1980s does not only refer to intercourse without consent (previously called “rape”). It extends to any unwanted touching which violates the sexual integrity of the complainant. The spectrum of sexual assaults runs from an unwanted patting on the buttocks, groping at the genitals, caressing of the breast area (over or under clothing) to intercourse. As one of the factors considered on sentencing is the severity of the particular fact situation, sentences for “sexual assault” run the gamut. Properly so.

Second, police have been trained to lay charges when they have “reasonable grounds” to believe that an offence has occurred. The test for “reasonable grounds” is not high. A complainant who reports that he or she has experienced a sexual assault can expect that these allegations will be taken seriously, investigated, and will likely lead to charges. The police cannot lay charges when there are no witnesses, and victims, for complex social reasons (to do with poverty, dependence, personal or family issues, fear of cross-examination, to name but a few) choose not to report.

Third, crown attorneys traditionally have discretion about how they pursue their cases in court. Most criminal charges (well more than 90%) are resolved without a trial. Most cases are heard by a judge alone. Most in the provincial court, in Ontario called the Ontario Court of Justice. Plea bargaining is the mechanism by which criminal courts manage their caseload. When alleged offenders take responsibility for some offence, and the crown proposes a sentence which the defendant can live with, and would be acceptable to a judge “as a joint submission,” matters typically end with no need for any trial. Without this practice, the courts would collapse.

With respect to domestic violence, this discretion of the crown has been considerably curbed. Often crowns pursue cases to the point of calling evidence from the complainant, even when she has recanted her story, and the chances of a conviction are minimal. This practice is controversial, and has its pros and cons. Where the crown does not “withdraw” the charges, the court may impose other remedies even without a conviction. The statistics will show another acquittal by a judge, but the reason for the acquittal has little to do with the system.

Fourth, judges are prohibited from basing their decisions on stereotypical assumptions. Except in very limited circumstances, judges cannot assume that a truthful complainant would have reported immediately. Reputation evidence is inadmissible, as is questioning on prior sexual conduct, except in strict situations after a hearing. Judges must give reasons for their findings of fact. Their reasons must be based on the evidence before the court, and are subject to review by appeal courts.

The real issue for a judge is determining credibility. The Supreme Court of Canada has defined a very specific test for credibility. Extensive case-law has refined it, including the need for judges to consider the special circumstances of particular complainants (children, young people, those with disabilities, and those from other cultures). If a judge cannot make findings of fact beyond a reasonable doubt, however, there can be no conviction. As a practical matter with respect to any offence, delays in getting to trial do not help.

Since the 1980s, the criminal law, and the criminal courts (in Ontario at least), have tried to make it easier for complainants. The appeal courts have given trial judges greater powers to constrain abusive cross-examination. Numerous mechanisms now exist which assist witnesses giving their evidence in court, and protect them outside. An elaborate victim witness program has long ago been created to inform witnesses about the system and provide support if they need to testify. A tide of child sexual abuse cases has swept through the courts, and been dealt with, many historical and involving powerful people.

It would be useful if the media focused on how the criminal justice system actually works. The system is complex; the administration of justice is a provincial responsibility, and practices may vary across the country. Perpetuating stereotypes about the system which are out of date, however, does no service to anyone. It deters potential complainants from coming forward, and ignores the real issues that undermine the delivery of justice in our criminal courts (including the problem of delay).

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Judicial Appointments… Finally!

(This article is an edited version of one originally published December 17, 2014 by Marion Lane on The Effervescent Bubble.)

On December 16, 2014, the federal Department of Justice announced twenty-one new appointments to the upper courts of Ontario including two to the Court of Appeal, fifteen to the Superior Court, two transfers from the Superior Court to the Family Court Branch, and two transfers within the Superior Court resulting from the change of the Regional Senior in the North East Region. Eureka! The new appointments will be happy. The courts they will join will be even happier.

What is shocking about the announcement is how long the vacancies have existed. Brampton is one of the busiest jurisdictions in the province, with a heavy caseload (among other things) of drug prosecutions coming out of Lester Pearson Airport. Brampton is the court for Peel Region which was called “the worst jurisdiction north of the Rio Grande” in 1990 when, in a case arising out of Brampton (R. v. Askov), the Supreme Court of Canada defined what is “a trial within a reasonable time” in Canada. Thereafter, thousands of charges were withdrawn from the system because trials were unduly delayed. One would have thought the federal government would have been most anxious to avoid another Askov in Brampton.

Apparently not. Madam Justice Fairburn was appointed yesterday to replace Madam Justice van Rensburg, who was appointed to the Court of Appeal on October 1, 2013. Her position has been vacant for over 14 months. Justice Ivan Bloom was appointed yesterday to replace Justice Seppi who went supernumerary (retired to part-time) January 8, 2004, just over three weeks short of a year ago. Justice William LeMay was appointed yesterday to replace Madam Justice Snowie who went supernumerary May 25, 2014, just short of seven months ago.

How can it be that in Brampton of all places, the government has chosen to leave these positions vacant for such long periods of time? When the federal government decided to elevate a Brampton Superior Court judge to the Court of Appeal in October 2013, was there no one available to replace her at the time? Both Madam Justice Fairburn and Justice Bloom have been crowns in the system for a long time, Justice Bloom apparently an employee of the federal government’s own Public Prosecutions Service. Were neither of them available to fill the post over a year ago? How many cases have been delayed in the interval because “no judge was available” to conduct a trial? How many defendants, victims and other witnesses have endured prolonged stress and anxiety because their matters could not be scheduled for trial in a timely fashion?

Canada’s federal government has the power to define the criminal law and is happy to pass laws which add to the Criminal Code, ad infinitum. The feds also have the exclusive power to appoint judges to the Superior Courts and the Courts of Appeal. Appointing judges does not seem a priority. The vacancies left unfilled for so long speak for themselves.

On the assumption that the government is not asleep at the wheel, the rest of the list of new judges shows how delaying appointments has become the pattern of this federal government. The two Court of Appeal vacancies arose January 31, 2014, and March 5, 2014, eleven and ten months ago respectively. This is the most important court in Ontario; the highest court which defines the law for all the lower courts, and which, at full complement, has only twenty-two full-time judges.

Of the other newly appointed Superior Court judges, one replaces a judge who became Senior Family Judge on December 31, 2013, a year ago. Another replaces one who semi-retired January 8, 2014, nearly a year ago. Three replace judges who semi-retired in April, eight months ago; one replaces another who went supernumerary in May, seven months ago; another replaces a judge who went supernumerary in June, six months ago; and two replace judges who semi-retired in July, five months ago. The two transfers into the Family Court branch and the appointments to replace them are relatively recent (October and November), and one appointment is prospective, to replace a judge going supernumerary on January 16, 2015.

Judges who go supernumerary typically give ample notice of their intentions. Once semi-retired, they are scheduled into the calendar on a part-time basis, if their circumstances permit. Their part-time availability only partially fills the gaps. What is clear, however, is that the federal government exploits this supernumerary crutch to avoid the cost of providing full-time judicial services. Why have a full-time judge if a part-timer would suffice? “Law and order” and “the rights of victims” obviously do not extend to timely justice.

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Judicial Appointments Delayed, Justice Denied

(This article is an edited version of one originally published November 28, 2014 by Marion Lane on The Effervescent Bubble.)

Justice Louis LeBel of the Supreme Court of Canada (SCC) is 75 years of age and by law must step down from the Bench on Sunday. Yesterday, the federal government announced their choice of his successor: Suzanne Côté, partner and head of litigation at Osler, Hoskin and Harcourt in Montreal. With 34 years of experience in commercial and civil litigation and in public law, Côté has been hailed as one of the 25 best women lawyers in Canada. We don’t know her perspective on the role of judges, but her legal qualifications for the appointment are impeccable. That she becomes the fourth woman out of nine on the Bench is an added bonus.

That the government chose someone with no prior judicial experience is not cause for alarm. The legislation provides for appointing lawyers directly from the Bar and the practice is not unprecedented. Prime Minister Brian Mulroney appointed Toronto civil litigator John Sopinka to the SCC in May 1988. At that time, he had been in private practice for 28 years and had an outstanding reputation as a civil trial lawyer. Similarly, Prime Minister Jean Chrétien appointed Ian Binnie to the Supreme Court in January 1998, after 32 years as a civil litigator and with significant legal service for the government. Such lawyers bring to the highest Court in the land much-needed expertise in the practical day-to-day realities of civil and commercial litigation. Both Justice Sopinka and Justice Binnie made outstanding contributions to the Supreme Court.

What is disturbing is the “process” for appointing Justice Côté. No one disputes that an SCC appointment is within the purview of the Prime Minister and his Minister of Justice. Under Prime Minister Chrétien, however, a process was created by which an Advisory Committee of Members of Parliament, legal experts and others developed a shortlist of candidates suitable for appointment to the SCC. With this advice at hand, the government made its choice. In 2006, Prime Minister Harper himself made it a condition of selection that the proposed appointee appear before a nationally televised all-party committee of Members of Parliament and legal experts to answer questions about their legal experience and perspective. Justice Marshall Rothstein was the first appointee to take part in this public hearing. Later Justices Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis and Richard Wagner did the same. The process was intended to increase openness and transparency, and to inform the public about the judges themselves and why they were appropriate for appointment.

In June 2014, Prime Minister Harper and Justice Minister Peter MacKay shut down that process. When the SCC rejected Justice Marc Nadon as ineligible for a Quebec position on the Supreme Court, Harper and MacKay had a snit. Although under a duty to uphold the law and not malign the courts, they engaged in an unprecedented attack on the Chief Justice of the SCC which was widely regarded in the legal profession and across the country as totally unseemly. They also refused to recall the Advisory Committee to help find and vet the new appointment. On their own, without parliamentary input, and without any Committee hearings, they appointed Justice Clément Gascon of the Quebec Court of Appeal to the vacant Quebec place on the Bench. He was sworn in on October 6th, after the Quebec position had been vacant for a year. Harper and MacKay have done the same thing again. Made another Quebec appointment at the last possible moment, with no parliamentary participation, nor any public knowledge about the new appointee. Respect for process, transparency and accountability are apparently no longer important. Secrecy is again the name of the game.

In the meantime, the federal government has dragged its feet on the timely appointment of new judges to all federal courts across the country. At present, there are 61 vacant federal judicial positions across Canada waiting to be filled. This includes 23 judges in the Ontario Superior Court, five judges in the Ontario Unified Family Court, three in the Ontario Court of Appeal, and five in the Federal Court of Appeal. The Chief Justice of Ontario is the highest-ranking judge in Ontario. After Chief Justice Warren Winkler stepped down in December 2013, the position remained vacant until the federal government finally appointed Chief Justice George R. Strathy on June 13, 2014, over five months later. Who needs a Chief Justice anyway?

It should be obvious that judges are essential for access to justice within a reasonable time. Delay is endemic in the courts. So why not make timely appointments? Maybe the government can’t find enough judges of their own ideological persuasion to fill the posts. Or maybe the non-payment of judicial salaries contributes to the much-vaunted federal budget surplus. Or maybe, since the Provinces are responsible for administering justice, the public does not notice that the federal government is not carrying its weight in the system. Whatever the reason, it seems that this “law and order” government does not value public access to courts and to the judiciary. A government that valued justice and respected the courts would want a Bench working to capacity with as little burn-out as possible.  That’s not happening, and it hasn’t for some time.

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Don’t Believe the Headlines: The Truth in Sentencing Act and The Supreme Court of Canada

(This article is an edited version of one originally published April 15, 2014 by Marion Lane on The Effervescent Bubble.)

On Friday, the Supreme Court of Canada released its decisions in a trilogy of cases (Summers, Carvery and Clarke) dealing with the Truth in Sentencing Act (TISA) passed in 2009 as part of the Harper government’s ‘tough on crime’ agenda. On Saturday, a Toronto Star headline proclaimed, “Tories’ ‘tough-on-crime’ law set back,” with the sub-head teaser reading “Supreme Court restores credit for pretrial jail time in latest blow to Conservatives.”  The Globe and Mail said, “SCOC deals another blow to Harper,” with the sub-headline, “Canada’s top court squashes Conservative government’s attempt to do away with extra credit for prisoners for time served before trial.” This is a striking example of how headlines and summaries may misrepresent what actually goes on in the criminal courts of Canada, including in the Supreme Court.

What actually happened in these cases is more nuanced than the newspapers imply. In these appeals, the constitutionality of the sections was not questioned and the Supremes did not address that issue. They certainly did not “squash” the amendments. Instead they interpreted them to make them work. In my view, the federal government in these most recent cases lost the skirmish but won the war.

In 2000, the Supreme Court upheld the discretion of judges to give pre-sentence credit at 2:1, or even 3:1, to persons denied bail and detained in custody pending trial. This enhanced credit is justified for two reasons:

  • The corrections regime applicable to most inmates in federal prisons and provincial jails does not count time spent in pre-trial detention in calculating eligibility for parole and early release; and
  • Remand jails do not give educational or rehabilitation programs available in long-term jails, and are often beset with unusually onerous conditions (overcrowding, triple bunking, constant inmate turnover, multiple security lock-downs).

The Criminal Code recognized the practice of awarding enhanced credit with no limitations on judicial discretion until the 2009 amendments.

These new amendments changed the boundaries of pre-trial credit dramatically. The new general principle was that there would be no enhanced credit for time spent in pretrial detention. “If circumstances justify it,” judges could give a maximum of 1.5:1, a sharply reduced cap on judicial discretion.

Two of the three cases before the Supreme Court were crown appeals on a narrow issue: the correct meaning of “circumstances” justifying enhanced credit. The debate was about an extra half day of augmented credit the government conceded judges may award, “if circumstances justify it.”

The lower courts in Ontario and Nova Scotia  had held that the statutory corrections regime for calculating parole and early release beginning when sentence is imposed is a circumstance which warranted the 1.5:1 credit. Any other interpretation would mean that persons detained in custody pending trial would serve longer sentences than would persons convicted of similar offences who had been released on bail. The Ontario and Nova Scotia Courts of Appeal took the same position. The crown disagreed, arguing that “circumstances” suggests facts particular to an accused and not universal consequences inherent in the statutory regime. The Supreme Court sided with the lower and Appeal courts on the issue. In doing so, they taught the Harper government yet another lesson in how Canadian law operates.

The wording of the amendments is awkward and convoluted.  The government may have wanted a 1:1 cap as the general rule with enhanced credit the exception. The Supreme Court, in a unanimous 7-0 decision, made it clear, however, that the 1.5:1 cap was to be of general application (with the specified exceptions) so long as the statutory corrections regime for parole and early release remained as it is. Unless the government amends the corrections regime, most people detained in pretrial custody will be eligible for the augmented extra half day credit.

In interpreting the amendments as they did, the Supreme Court reaffirmed the fundamental principles of sentencing set out in s. 718, 718.1 and 718.2 of the Criminal Code. These require that:

  • “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender,” and that
  • a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

As Justice Karakatsanis wrote:

  • a rule that creates structural differences in sentences, based on criteria irrelevant to sentencing, is inconsistent with the principle of parity.
  • And proportionality is not promoted “when the length of incarceration is a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria.

She noted that poor people, aboriginal people, and those without families or friends to provide support and post bail, are disproportionately detained for economic reasons unrelated to the actual offences they are alleged to have committed.

In my view, this interpretation is the obvious result required by the  context and by the principles of sentencing. Parity and proportionality are fundamental values of our criminal justice sentencing regime. Judicial discretion may have been sharply reduced, augmented credit at 2:1 or 3:1 may have gone the way of the dodo, but at least these principles have been preserved.

On balance, however, it strikes me that the Harper government won this one. The Supreme Court of Canada has put its stamp of approval on the cap which has so greatly reduced judicial discretion. The Court also sets out an analytical framework that judges must apply in dealing with the issue. It confirms that the onus is on the defence to claim the enhanced credit (which it admits need not be difficult), that the new amendments apply to all persons charged after the legislation became effective (even if the alleged offence occurred before), and that judges can still deny enhanced credit in appropriate cases where an accused is shown to have been gaming the system or would clearly not be eligible for parole or early release in any event. These clarifications clearly further the law-and-order goals of the Harper government.

By the way, according to Statistics Canada, in 2009/2010 (the latest date from which statistics are available), there were, on average, about 13,600 ADULTS ON REMAND EACH DAY IN CANADIAN JAILS (excluding Nunavut). There has also been a shift in who makes up the custodial population. In 2009/2010, adults on remand accounted for 58% of the custodial population while those serving sentence comprised 42%; ten years earlier, proportions were reversed, at 40% and 60% respectively. These are shocking statistics. Why so many people presumed innocent are detained on remand is an issue for another day.

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Supreme Court Nullifies Harper Appointment: Why is this important?

(This article is an edited version of one originally published March 25, 2014 by Marion Lane on The Effervescent Bubble.)

Jeffrey Simpson in the Globe and Mail hit the nail on the head. He wrote: “The Harper government figured it would teach the Supreme Court justices a lesson by appointing Marc Nadon to their midst. Instead, the justices taught the Harper government a bunch of lessons. Among these lessons: Don’t play politics with the judiciary. Don’t play fast and loose with the law. Pick the best qualified, not the average. Understand the Constitution.” Chantel Hébert in the Toronto Star wrote: “This is one of those occasions when a bad day for the current government of Canada is a good day for federalism.” Christie Blatchford in the National Post, under the headline “Egregious meddling in what should be PM’s choice for top court,” fumed that “it is a disgraceful decision,” while her colleague John Ivison, in the same edition, wrote that “There’s no disguising the whole appointment process has been a cock-up… “

The Supreme Court decided 6:1 against the government; of whom three in the majority were appointees to the court by Prime Minister Harper.  As is customary when litigants disagree about the correct interpretation of legal provisions, they considered the wording of the statute, its history and its purpose. Then the majority released their decision as one voice, to emphasize its importance.  So what did the Supreme Court majority decide?

1) That Justice Nadon, the Harper government’s choice to fill one of three seats on the court reserved for Quebec judges, was not eligible for the position.
2) Having worked for the past 20 years in Ottawa, he was not a current member of the Quebec bar, nor of the high courts of Quebec, as required by s.6 of the Supreme Court of Canada Act.
3) That particular section, passed in 1875, and not changed since, “narrows the pool of eligible candidates” from the general requirements in s.5.
4) It does so for two basic reasons: a) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court and b) to enhance the confidence of Quebec in the Court.
5) The federal government’s unilateral amendment to the Supreme Court of Canada Act  declaring that former members of the Quebec bar or higher courts are eligible for appointment to the Supreme Court is beyond the powers of the federal government acting alone.
6) Changes to the Supreme Court and to its composition are subject to constitutional amending procedures requiring  the unanimous consent of Parliament and the provincial legislatures.

I agree with Chantal Hébert and the other pundits who applaud this decision as a great day for Canadian federalism. Quebec can have no complaint when their own position on the issue was so completely affirmed by the Supremes. Separatists will be frustrated; but they are never happy when the Canadian federation shows that it serves Quebec interests well. There are those across Canada who may ask: “Why does Quebec get distinctive treatment on this issue?” They do, because their codified civil law is different from the common law applicable to the rest of Canada and, when the country was first formed, the Fathers of Confederation agreed to preserve that law in Quebec. That bargain recognized the distinctive nature of the French Canadian legal culture. This is a foundation principle upon which Canada was created and evolved to the official bilingual state we enjoy today.

True conservatives, and everyone else, across Canada, should be equally pleased. The Supreme Court of Canada has confirmed its own status as one of the basic constitutional institutions of the nation, and insisted that its integrity must be respected. This is an essential precondition to protect the freedoms fundamental to our society. Those who complain that “the court has interfered with the supremacy of Parliament” do not seem to appreciate that it is a primary function of the court, and particularly the Supreme Court, to rule on the validity of state action. That’s what they do frequently. That’s what they were asked to do this time. That is their role. The Court is only doing their job. One of their jobs is to keep the government accountable. Accountable to the constitution which is the fundamental law of the land. You and I and everyone else who values the rule of law in this country should be thankful for that. No one is above the law, not even the Prime Minister and his majority in Parliament.

Everyone agrees that the process by which Justices are appointed to the Supreme Court of Canada needs updating. That is a subject for another day. Suffice it to say that, in the Nadon case, the federal government didn’t even follow the prevailing practice. Although Mr. Justice Fish gave six months notice of his retirement, the government waited until the very last minute to choose his successor. When they did, they ignored the pool of outstanding candidates obviously available and chose someone almost unknown, semi-retired, with limited legal jurisprudence to his credit, and whose only apparent claim was his obvious support for their own ideological perspective. With little time to know his record, his appearance before the Parliamentary Committee to review his appointment was perfunctory to say the least. The government knew, furthermore, that by choosing Justice Nadon, who was not a current member of the Quebec bar, or the Quebec higher courts, they were flirting with the s.6 statutory qualifications. When there was an immediate challenge to the appointment (from Toronto lawyer Rocco Galati, and then from the Quebec government itself), the government referred the matter directly to the Supreme Court for an expedited decision. The federal government also passed legislation to amend the Supreme Court Act asserting that their view of the provisions prevailed. Did Parliament think that, by passing such a law to apply retroactively, they could dictate how the Supreme Court must decide?

One can sympathize with the embarrassment this has caused Justice Nadon. The actions of the Harper government, however, were unprecedented. They called for a firm response. They got it… as Jeffrey Simpson said: a resounding “No.” Three cheers for the Supreme Court of Canada. Anyone who wants to read the Supreme Court decision for themselves can find it on the court webpage.

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