SCC: A DECADE IN REVIEW
SCC: A DECADE IN REVIEW
The composition of the Supreme Court of Canada’s (“SCC”) dais has nearly completely turned over since 2010, Justice Abella being the only remaining Justice from 2010 still currently sitting on the bench. We saw many household names retire from the bench such as Justices Binnie, Lebel, and Cromwell (law student and lawyer households that is). Throughout most of the 2010s, the Honourable Justice McLachlin presided as Chief Justice; the Honourable Justice Wagner assumed the role of Chief Justice in late 2017 upon Justice McLachlin’s retirement. We welcomed several new appointments such as Justice Martin in late 2017, and most recently Justice Kasirer in 2019. One thing that hasn’t changed since 2010 is the 4-5 split of female and male Justices on the bench. While women continue to have strong representation at the highest court, the SCC is yet to see an Indigenous or racialized Justice appointed to the bench. Many have pointed out that we may see an increase in representation as more Indigenous and racialized persons are appointed to the lower level courts. Something we hope to see in the 2020s.
In 2018, the Supreme Court began releasing “Cases in Brief” to accompany its written reasons for judgment. These briefs offer plain-language, concise summaries of recent Supreme Court decisions, and are aimed at improving the public’s access to major decisions that affect their everyday lives.
In September 2019, the SCC sat for the first time outside of Ottawa. All nine Justices sat in Winnipeg to hear two appeals namely R v KGK which will determine whether Jordan timelines include the time to render a verdict and give reasons, and Conseil Scolaire Francophone de la Colombie-Britannique v British Columbia on minority language rights to education.
Here are some of the Supreme Court decisions we found the most impactful from 2010-2019.
Section 11(b)
R v Jordan, 2016 SCC 27 - For better or for worse, Jordan represents one of the most impactful paradigmatic shifts of the decade. Revisiting the Morin framework for applying s. 11(b) rights, the Court set presumptive ceilings beyond which delay is presumed to be unreasonable (barring rare circumstances that justify the delay). The Court set a presumptive ceiling of 18 months, from the charge to the actual or anticipated end of trial, for cases tried in provincial court, and a ceiling of 30 months for cases in superior court. Delay attributable to or waived by the defence is not counted towards the presumptive ceiling. If delay exceeds this presumptive ceiling, the Crown bears the burden to rebut the presumption of unreasonableness on a threshold of “exceptional circumstances”. Exceptional circumstances generally refer to (1) discrete events and (2) complex cases. Delay attributed to a discrete event is subtracted from the total delay. Delay arising from the complexity of the case renders the delay reasonable. Delay below the presumptive ceiling, however, places the onus on the defence to establish that the delay is unreasonable. The defence is required to establish that it took reasonable steps to expedite the proceedings and that the case took longer than it reasonably should have. The remedy for unreasonable delay is a stay under s. 24(1).
Jordan, in spirit, was aimed at combating the plague of complacency in the criminal justice system by encouraging cooperation between Crown and defence counsel. In practice, however, this goal has yielded mixed results. Section 11(b) Charter challenges are now encumbered with extensive calculations of which side delay is attributable to. The removal of judicial discretion in assessing what delay is “reasonable” has largely reduced s. 11(b) claims to a game of pointing fingers, looking to attribute delay to opposing counsel’s column on the delay spreadsheet.
More recently, the Court of Appeal for Ontario set an additional presumptive ceiling for post-verdict delay in R v Charley, 2019 ONCA 726. The Court fixed this ceiling at five months; beyond this ceiling, the Crown bears the burden of justifying this presumptively unreasonable delay.
Additionally, in R v KJM, 2019 SCC 55, the Supreme Court affirmed that the Jordan timelines apply to youth justice court proceedings. The majority found that there was no evidence of a delay problem facing youth proceedings that would require a lower presumptive ceiling.
Read the full case at R v Jordan, 2016 SCC 27.
Section 8 - Search & Seizure
As technology has become more pervasive in individuals’ lives, the court has attempted to adapt traditional section 8 jurisprudence to reflect this technological evolution.
R v Fearon, 2014 SCC 77 - In Fearon, the Court modified the existing framework governing searches incident to arrest given the intrusiveness of cell phone searches. A lawful search incident to arrest requires that the search be exercised in the pursuit of a valid law enforcement purpose, and that the search be truly incidental to a lawful arrest. The Court, however, identified that additional protections were required given the inherent potential for cell phones to house private information. In the context of a cell phone search, the nature and extent of the search must be tailored to the law enforcement purpose of the search. The Court identified that in practice this means only recently sent messages, call logs or photos will be justified. Valid law enforcement purposes include protecting the police, accused or public; preserving evidence and discovering evidence where the investigation will be hindered by the inability to promptly search the cell phone. Lastly, policy must take detailed notes of what they examined and how they examined the cell phone. Read the full case at R v Fearon, 2014 SCC 77.
R v Marakah, 2017 SCC 59 - In Marakah, the Supreme Court considered whether senders retain a reasonable expectation of privacy (“REP”) in messages retrieved from the recipient’s phone. The crux of the debate centered on whether this subjective expectation of privacy was objectively reasonable. A claimant only has standing to challenge the reasonableness of a search under s. 8 of the Charter where their subjective expectation of privacy is deemed objectively reasonable in the totality of the circumstances. The Court held that, while not dispositive, a sender’s control over how, when and to whom they send a text message is indicia of a REP. Despite a lack of exclusive control over the information contained in the electronic messages, the sender may nonetheless reasonably expect that information to remain safe from police intrusion on the recipient’s phone.
Many view Marakah as a “win” for digital privacy given the Court’s recognition of the inherently private nature of text messages. Our cell phones, and the information contained within, have the potential of revealing some of our most intimate thoughts as electronic messaging becomes a pervasive form of communication in society. Moldaver’s dissent, however, highlights policy concerns that the majority’s analysis will allow those engaged in criminal activity such as child luring and child pornography to claim privacy interests in the evidence housed on the victim’s cell phone. The dissent, in essence, expresses concern over law enforcement’s ability to access and rely on reliable and necessary evidence housed on victim’s cell phones. Justice Rowe expressed a similar concern over a recipient’s ability or, rather, inability to consent to the search of their phone given the sender’s continued expectation of privacy in the messages.
Read the full case at R v Marakah, 2017 SCC 59. For a full summary of the majority’s s. 8 analysis: http://www.thecourt.ca/return-sender-reasonable-expectations-privacy-r-v-marakah/.
Section 9 - Detention
R v Le, 2019 SCC 34 - Le represents an important recognition by the SCC that an individual’s interaction with police is often shaped by social markers such as race and socioeconomic status. These subjective experiences help inform what constitutes a ‘detention’ within the meaning of section 9 of the Charter. In Le, three police officers detained four racialized individuals hanging out in a backyard without any reasonable suspicion for doing so. The officers began to question the individuals, including Le, about drug dealing. Le ran off and was subsequently arrested for a variety of drug and firearm possession charges. Le affirms the meaning of psychological detention within the meaning of section 9 of the Charter. The majority held that “detention” includes when an ordinary person in the same circumstances would believe they were not free to leave and had to comply with police questioning or demands. The detention in question involved a young racialized person in a low-income neighbourhood. Given the problematic over-policing of these communities, members of these communities generally have more negative interactions with police. An ordinary person, in these circumstances, would therefore likely believe they had to comply with the police; a narrow majority of the SCC held the individuals were detained as soon as the police entered the backyard. Read the full case at R v Le, 2019 SCC 34.
Sentencing
R v Nur, 2015 SCC 15 - The use of mandatory minimums is often problematic for lawyers as it places the power of sentencing in the hands of the legislature rather than with the judiciary. In Nur, the majority of the Court held that the mandatory minimum for possession of a loaded prohibited firearm (contrary to s. 95(1) of the Criminal Code) was inconsistent with section 12 of the Charter. The majority affirmed that the proper approach to deciding the constitutional validity of a mandatory minimum sentence is two-fold: (1) the court must determine whether the impugned provision imposes cruel and unusual punishment on the particular individual before the court, and (2) if not, whether a reasonably foreseeable application of the provision would impose cruel and unusual punishment on other offenders. This “reasonable hypothetical offender” approach is grounded in the concept that “it is the nature of the law, not the status of the accused” that is in issue. Mandatory minimums severely hinder a sentencing judge’s ability to tailor a proportionate sentence to the circumstances of the offender and offence.
Read the full case at R v Nur, 2015 SCC 15. See also Jordan Casey’s case comment for legal blog ‘the Court’ on Moldaver’s dissent in Nur - http://www.thecourt.ca/r-v-nur-the-battle-of-two-approaches-to-challenging-a-mandatory-minimum-sentence-under-s-52-of-the-constitution-act-1982/).
R v Anthony-Cook, 2016 SCC 43 - In Anthony-Cook the SCC unanimously limited the circumstances in which a trial judge should depart from a joint submission. This decision continues to have a big impact on the Canadian criminal justice system given the exorbitant volume of guilty pleas heard annually. Joint submissions allow the majority of guilty pleas to move through the criminal justice system with relative efficiency by removing needless sentencing submissions. In Anthony-Cook, the Court held a trial judge should only depart from a joint submission where “it would bring the administration of justice into disrepute, or is otherwise contrary to the public interest.” In other words, a departure from a joint submission is only justified where the joint position is out of line with the expectations of reasonable persons aware of the circumstances of the case. Judges should not depart from joint submissions lightly given their role in improving the efficiency of the court system. Read the full case at R v Anthony-Cook, 2016 SCC 53. See also Robichaud’s summary of R v Anthony-Cook at https://robichaudlaw.ca/joint-positions-in-canada-the-supreme-court-case-of-r-v-anthony-cook/.
R v Ipeelee, 2012 SCC 13 - The main issue considered in Ipeelee was how a sentencing judge ought to determine a fit sentence for a breach of a Long Term Supervision Order (“LTSO”) in the context of an Aboriginal offender. LTSO’s are aimed at both protecting the public, and reintegrating offenders into the community. Sentencing judges have broad discretion in assessing what sentence will be proportionate to the gravity of the offence and the degree of moral culpability of the offender. The Court reaffirmed the remedial nature of s. 718.2(e) of the Criminal Code which was designed to improve the increasing problem of overrepresentation of Aboriginal people in prisons. Section 718.2(e) is a call to action by Parliament directing sentencing judges to pay particular attention to the unique circumstances of Aboriginal offenders in imposing a just and fit sentence. Ipeelee confirmed that the factors outlined by the Supreme Court in R v Gladue, [1999] 1 SCR 688 such as the systemic and background factors that bring a particular offender before the courts, and the types of sentencing tools that may be appropriate given the offender’s particular Aboriginal connection, apply in all sentencing considerations. The Court clarified that Aboriginal offenders are not required to establish a nexus between their Aboriginal heritage and the commission of the current offence. Lastly, the Court sent a clear message that a sentencing judge must apply s. 718.2(e) in every case involving an Aboriginal offender; failure to do so is an error warranting appellate intervention.
Read the full case at R v Ipeelee, 2012 SCC 13. The Supreme Court cited OKT Law’s Managing Partner Renee Pelletier, see their full summary at https://www.oktlaw.com/supreme-court-reaffirms-principles-aboriginal-sentencing-renee-pelletier-quoted/.
Section 11(e) - Bail
R v Antic, 2017 SCC 27 - In Antic, the Supreme Court affirmed the crisis status of the bail system in Canada. It has been well established that pre-trial detention has significant negative impacts on an accused’s ability to make full answer and defence (not to mention the severe physical and psychological impacts of being detained). In Antic, the Court affirmed the necessity of upholding an accused’s right to reasonable bail. Much like in Jordan, the Court actively challenged the culture of complacency in the criminal justice system by firmly reminding bail courts that the presumption of innocence requires minimal state intrusion. Any state intrusion must be justified. In order to improve efficiency and uphold s. 11(e) rights, the starting point for bail proceedings is a presumption of release without conditions.
If the Crown seeks detention of the accused under s. 515(1), it bears the onus of establishing that the accused should not be released on bail. The Crown can rely on the primary (attendance), secondary (safety of the public) and tertiary (maintain confidence in the administration of justice) grounds under s. 515(10) to meet this burden. If the Court is not satisfied that there should be an outright denial of bail, the court can impose restrictions on the release of the accused. The form of these restrictions are outlined in s. 515(2). The Crown retains the onus to establish why a more restrictive form of release is justified over a less onerous one. This is referred to as the “Ladder Principle” which requires that the accused be released on the least restrictive bail unless a more restrictive form is demonstrably justified.
Read the full case at R v Antic, 2017 SCC 27. See also Robichaud’s overview of bail procedure in Canada, and its effect on Superior Court decision R v Tunney at https://robichaudlaw.ca/antic-tunney-di-luca-bail-decision/.
Honourable Mentions: R v Barton, 2019 SCC 33; R v Jarvis, 2019 SCC 10; R v Lloyd, 2016 SCC 33; R v Spencer, 2014 SCC 43; R v Telus Communications Co, 2013 SCC 16; Canada (Attorney General) v Bedford, 2013 SCC 72; R v Cole, 2012 SCC 53; R v Nasogaluak, 2010 SCC 6.
What do you think was the most impactful case in the 2010s? Let us know!