Episode 12 Supreme Court briefing

Yves Faguy: Hi, I'm Yves Faguy. In this episode of Modern Law we discuss the work of the Supreme Court of Canada.

Voice: You're listening to Modern Law, presented by the Canadian Bar Association's national magazine.

Yves Faguy: It's October 6, 2022. As listeners know by  now, this show is primarily about the law's ability to keep pace with change. Which is why we have guests on, leading legal minds and law practitioners to help us understand a wide range of challenges at the intersection of law and modern society. Many of those changes are driven by technological advances, obviously. But innovation isn't just about tech. Social innovation also lies at the root of why laws evolve, as new ideas meet changing social needs.

Which brings us to our Supreme Court of Canada. It's open to debate how much our final arbitrer of law effectrively influences social change. The fact remains, as former Chief Justice Beverley McLachlin said, back in 2008, and I quote, "To perform their modern role well, judges must be sensitive to a broad range of social concerns. They must possess a keen appreciation of the importance of individual and group interests, and rights. And they must be in touch with the society in which they work, understand its values and its tensions."

So with that in mind we're introducing a new regular bonus feature in our Modern Law series called Supreme Court briefing to keep listeners apprised of the Court's work. And so to guide us today I'm thrilled to have Nadia Effendi on the show. Nadia Effendi is a partner at BLG, based out of Toronto and Ottawa, a member of the CBA's Federal Court's Bench and Bar Liasison Committee. She is also the chair of BLG's Appellate, Advocacy and Public Law Group. And before joinoing BLG, Effendi served as a law clerk at the Supreme Court of Canada to then Justice Michel Bastarache. She's been counsel before Supreme Court on more than a few occasions and is otherwise what you would call a very attuned court watcher.  

So thanks for joining us, Nadia.

Nadia Effendi: Thank you for having me.

Yves Faguy: Well thanks for coming. And so let's kick things off, talking  about the Supreme Court, we're still obviously in the early days of the new term. The Court has heard a few cases, one today. But the big story  is obviously the nomination of Michelle O'Bonsawin. Any thoughts first on that and her start, the start of her tenure on the bench?

Nadia Effendi: Yeah, I mean I think that as many listeners will know, an obvious Prime Minister Trudeau appointed the – appointments Justice Michelle O-Bonsawin, an historical nomination in my view. She was sworn in very quickly in early September, becoming the first indigenous person to sit on Canada's high court. And her appointment follows another historical appointment that we had in July 2021 with Justice Mahmud Jamal, who was the first reacialized person to now serve on the Canada's highest court.

And so I would say that Justice O'Bonsawin brings with her a wealth of experience to the Supreme Court. She's fully bilingual, English and French. Brings a broad and diverse background. She's practiced in both public and private sector with specialization in mental health, employment, labour, human rights, indigenous and criminal and privacy law. On top of it all she also has a PhD which she managed to complete while she was on the bench, although she started prior to that. And we know, because she's been quite open about it, that her thesis for her PhD daelth with the Gladue principles.  And so I would say that she brings with her quite a breadth of experience at the Court. There's no doubt about it. 

Yves Faguy: It takes a while sometimes for a new justice to settle in, and you know, I'm – and there seems to be a lot of attention on her, understandably coming from indigenous communities. What are the expectations for her? Is she  under any particular pressure?

Nadia Effendi: You know what? I would say that each justice that is appointed to the Court brings with them their own expertise and set of experiences to their role. I think she probably said it best when she said, look, I'm first a judge and then I'm a Franco-Ontarian, bilingual, indigenous person. And by that I think what she was saying  basically is, look, I come in impartial, ready to listen to all  the cases. But of course  you can't ignore all your past. And I think that's why her appointment is so important.

Obviously I'm not in her shoes so she's probably better placed to say what kind of pressure is on her. But I would say, you know, it is really good, frankly, we are moving in the right direction by seeing that this Court now is starting to reflect Canadian society. And you know, in addition to that, Justice O'Bonsawin also restores the Court's gender composition you know, that existed before Justice Abella retired so we're now back at four female justices and five male justices. So I do think that there's probably certain pressures on her. But at the same time I think she's made it very clear that she's coming at this job, like all of her colleagues, candidly,  ready to in an impartial way listen and determine those cases.

Yves Faguy: And with the departure of Michael Moldaver, you know, there are – there have been comments out there about his criminal law expertise. Any concerns about the ability of the bench to replace that expertise or to substitute themselves for the expertise?

Nadia Effendi: I mean there's no doubt that Justice Moldaver had deep expertise in criminal law and leaves big shoes to fill at the Court. That being said, I mean there is a wealth of criminal law experience and expertise on the Court right now. Justice Kasirer, for instance, taught criminal law at university as did Justice Martin, who also has experience from her time as defence counsel.  We also have Justice Jamal, who while he was a private lawyer, represented various parties on intervention, several major criminal cases including, you know, representing the Canadian Civil Liberties Association.

So those are just a few exmplew which in my view showcases all the criminal experience. So I think cumulatively there is experience on the bench. There's no doubt about it in my view. And obviously now Justice O'Bonsawin comes in qualified and brings, you know, additional knowledge to that collective pool with her relevant experience and expertise in criminal law and the application of the Gladue principle and the [contents? 00:06:54] of mental health.

Yves Faguy: Yeah, and yeah, th'ts a very good opoint. And also the Chief Justice himself has presided over his fair share of criminal trials.

So the other big story was the visit to Quebec City for two hearings. One was the breathalizer case. The King versus Pascal Breault. I guess it's the first – is that the first King versus -

Nadia Effendi: It might be actually.

Yves Faguy: - Supreme Court. The second was an interesting constitutional law division of powers case. Janick Murray-Hall versus the Attorney General of Quebec, a challenge against Quebec's ban on owning and growing cannabis plants for personal use. Did anything stand out for  you in either of those two cases?

Nadia Effendi: Yeah, I mean let's start with the Breault case. I think it was definitely an interesting case because they're obviously, as you have mentioned, the Court will have to decide whether police must have an approved testing device with them when they order someone to provide a breath sample. And we saw that we had quite an active court at the hearing. You know, they definitely – it appears to have been through the questions and obviously – I don't know what the outcome will  be, we'll have to see with the judgement. But there seems to be some resistance to the idea that an acused would have to wait until a device arrives. And there definitely was an openness on the part of the judges to the accused's arguments.

The Court asked question that focused on, among other things, on how is a  police officer's order to be considered valid if it cannot be followed through with, if there's no device? And how can an individual can commit and offence when in fact they would not have been able to comply with the order since the device wasn't there and the tests couldn't have been performed forthwith.

And so the justices asked a lot of questions about the way the term forthwith ought to be interpreted, demonstratring, frankly, a concern that the interpretation of that term is tied to the constitutionality of the provision. Justice Karakatsanis also expressed discomfort, you know, stating that it was safe – that it was as if the state or government was benefiting from the ignorance of the individual who didn't know that the device wasn't present. There was quite a few interveners, obviously the attorney generals in the case were advocating for flexibility in the interpretation of forthwith as opposed to a more stringent interpretation that might require the police officer to have the device in their possession. And then obviously on the flipside you had the Quebec Defence Bar highlighting the issue of interpreting the term forthwith in such a way that might suspend an individual's right to counsel and advocating for transparency. In other words that an individual should be fully informed of the facts of the situation.

So I think we had an active bench there and it'll be interesting to see what outcome the Court decides.

Yves Faguy: And what about the cannabis case?

Nadia Effendi: You know what? The cannabis case was quite interesting for a couple of reasons. Obviously division of power cases are always interesting. And that's what we a had here. You know, we had our basically arguments that were being raised about the constitutionality of the Cannabis Regularion Act of Quebec and whether or not in fact it was invalid since you know, this falls within the exclusive jurisdiction of Parliament, as being a criminal matter.

And so there the Court really questioned counsel on whether the federal act granted a positive or freestanding rights given that the Court, back in Rothman's, back in 2005, had held that the federal government can't create freestanding rights using it's criminal power. So we had here just as Kasirer explained that you know, if Murray Hall's arugment was to be accepted then they would have to set aside those previous case law, in so far as they explain how federal jurisdiction is prohibitive in nature. And so obviously the AG seemed to be in agreement that criminal law power and shouldn't create freestanding rights.

The justices were also interested in hearing arguments on the [unintelligible 00:11:15] and substance of the Act and teasing it out, how the double aspect doctrine applies, how paramountcy might apply. And you had Justice Brown who was really interested in whether it is – was frustration of purpose when the federal act defines what is illicit and licit cannabis, insofar as cannabis that is listed under the federal legislation might then be prohibited by provincial legislation. So you really had a variety of questions being asked.

One interesting thing that was also noted and highlighted by the court was the absence of the Attorney General of Canada who didn't intervene in this case. And you had Justice Jamal question what could be inferred from that absence? And obviously one interverner thought that the reason that was the case was because the federal act wasn't in question there.

One thing that struck me aside from the substantive legal issue at stake here was the issue – more of a procedural issue that took place at the hearing. And I would invite counsel who appear for interveners or on a regular basis or might appear in the future for interveners to actually listen to this hearing. And the reason I say that is that you have the Chief Justice and at least one other justice interrupt counsel for interveners on several occasions to remind them of the proper role of interveners, and made the point, in fact, at the end of the hearing to clarify that there seemed to be a misunderstanding with respect to intervention and stating the interveners have no business referring to the facts or the merit of a case. That their role is simply to bring a different perspective to that of the parties. And he instructed counsel to, in the future, review the criteria for intervention prior to making argument.

So I thought that that was an interesting point on the part of the Chief Justice -

Yves Faguy: There was even a veiled threat to – if not, the Court could revise its own criteria to grant leave to interveners.

Nadia Effendi: Correct. Correct. And you'll remember that the Court just last November issued this kind of revised guidelines on intervention. So I think the Court is trying to send the signal here to counsel, look, you really need to stick with the criteria and your role as an intervene. You can't go beyond that. And I will say that as counsellor that appears for intervener, that's a bit challenging sometimes because the Court's approach has been, at the beginning of the process, to grant intervention to virtually anyone who seeks to intervene. So there's not a lot of guidance provided by the Court at that end. But then it seems when you get to the hearing that the Court really is trying to take a harder approach to that and making sure that the interveners are sticking to their role and mandate.

Yves Faguy: I did wonder whether – because I know that he did – that Chief Justice sort of admonished these interveners about that. But, a lot of the interveners were attorneys general. So do they get a pass for that?

Nadia Effendi: Yeah, I mean -

Yves Faguy: Just because of who they are?

Nadia Effendi: Yeah. I think – look, I don't know whether they get a pass. I mean obviously the attorney generals are constantly before the courts. I think that a lot of them that have experience tend to focus on the legal issues. And it may be that, you know, counsel that weren't as familiar with the Court or may have been – and I'm not sure, frankly. I don't want to – I'm not sure whether some of these counsel it was their first time or not their first time, but I would simply say that we really need to be careful as counsel, we're also as interveners to make sure that we're there to help the Court. We're not diving into who should win or who should not win. That really isn't the role of an intevener. And sometimes that's tough, right? As we all know, facts is what makes law. So it's difficult sometimes to distinguish one from the other.

But I think that that's really what the caution, the Court reminded us of in that case.

Yves Faguy: Yes, definitely. And today the constitutionality of the Safe Third Country was heard.

Nadia Effendi: It – and so another case that has been on everyone's radar. We'll remember that in that case stems from the 2004 aggreement between Canada and the US known as the Safe Third Country Agreement  where the US had been designated as a safe country pursuant to the Immigratoin Refugee Protection Scheme, and so as a result claimants arriving at like a land port eventualy to Canada from the US are deemed  to be ineligible for refugee protection.

And so it raises really novel issues of how foreign treaty obligation may affect the state's protection of Charter right and frankly raises really complex questions of administrative law. In fact it appeared at the hearing today went a bit over what was expected. So it'll be interesting to see what comes out of that decision in that case. Particularly as it relates to issues of Section 7 and Section 15 of the Charter.

Yves Faguy: So a few leaves were granted over the summer and over the last couple of weeks. I thought a lot of them seemed to emerge from criminal law, though there are a couple of exceptions to that. You know, tell us perhaps generally what's on your radar. Are any of those worthy of note or is there another hearing that you're particularly interested in tunin into in the coming weeks?

Nadia Effendi: Well I think it's important to mention maybe one case. The one that was actually granted leave for just at the end of September and that's the [unintelligible 00:16:56] Quebec and leave was granted on September 29 and that case will be of interest to all the lawyers specializing in labour and employment, particularly those in Quebec. And that's a case where the [unintelligible 00:17:10] challenged the constitutionality of the managerial exlusion in Quebec's labour code, after  in that case, a casino had objected to their application to represent a group of frontline managers at the casino on the basis that the definition of employee under the Canada Labour Code excludes managers.

So I think that will be interesting because here the Supreme Court has an opportunity to revisit the interpretation and the scope of Section 2d, that is the freedom of association and the equivalent provision under the Quebec Charter. We know that those kind of cases don't come to the Court every day. So I do think there will be quite a bit of  interest around that case.

It is actually a case that stems from a somewhat lengthy legal history, so I invite people to take a look at it. But it had been going on since 2009 in terms of going back to the  earlier steps in the proceeding.

So I think it will be interesting to see how the Court deals with its case law as it relates to – well remember that the Court had dealt with the issue of those provision in the RCMP case, and also in the Dunmore case back in 2001. So I think that this is one that will be on my radar. It's not likely to be hears, I would think, this  year, certainly. Probably in 2023 at the earliest.

 I think the other case that we might want to discuss is the case that's being heard next week. That's Hansman versus Neufeld case. You'll remember that that's the case that deals with defamation  and what is commonly known in the legal world as anti-SLAP. Those are the anti-strategic lawsuit against public participation motions.

Yves Faguy: You got that right.

Nadia Effendi: I had to write that one down. That case again may have, I think, significant consequences for freedom of expressions, affect the [defence of fair comment? 00:19:12] and is  likely to shape the factors that Court assess in weighing the various competing public interests  in the context of those anti-SLAP application generally. So I would say definitely one to watch next week.

The other one is one that's being heard in November, the Deans Knight.  That one will be of interest to all our colleagues in the tax world. They always get excited because there's not that many cases in tax. But again, you know, I think it'll be an interesting one to watch out for. It deals with the issue of control. So definitely one, I think, that is on my radar.

The only other one that I wanted to flag, and is not one that's being heard, you know, very soon, but I happened to be looking at the various cases that had been granted leave over the course of the spring and the summer, and I noted this one. And it goes back a bit in time. It was granted leave on April, 14, 2022. But that's the case of [unintelligible 00:20:15] and maybe at some other time we can talk further about that one, but it deals with language rights. And I think it'll be a very interesting case that deals with, you know, education law, language rights stemming out of the Northwest Territories. So I inveite people to be on the lookout for that one because it does raise really interesting issues, not only with respect to Section 23 of  the Charter, but also your rights to appear in court and be able to make your case in French. So one to be on the lookout for.

Yves Faguy: OK. That's great. That's a great fundown. Thank you so much Nadia Effendi from BLG for joining us today. And we'll have  you on again soon to update us on future cases and hearings.

Nadia Effendi: Thank you so much.

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