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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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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