Episode 31: 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.

You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.

It’s October 27th, 2023, and we’re back with a new instalment of our Supreme Court briefing with Nadia Effendi. Nadia Effendi is a partner at BLG and a member of the CBA’s Federal Courts Bench and Bar Liaison Committee. Nadia Effendi, welcome back to Modern Law for a new edition of Supreme Court of Canada briefing.

Nadia Effendi: Thank you for having me back.

Yves: Let’s begin with the big news. And the big news is obviously the appointment of Mary Moreau of Alberta to the court. She fills the vacancy left by Justice Russell Brown who left earlier this year, another Albertan. How does this impact the court? Who is she? What are your general ideas? What can you tell us about her?

Nadia: So you’re right. Finally I think that the legal community had been waiting quite patiently for this announcement. It is big news. She was the Chief Justice of the Court of Kings Bench in Alberta. And so with her appointment, for the first time ever, we have a majority female court. And I think it’s the first majority female court in the western world. And so she is the second Albertan judge on the bench, along with Justice Sheilah Martin.

I would say just generally, and we can get more specifically into her background, some notable things: she does have expertise in criminal law. So that’s something that some people had said, with the departure of Justice Moldaver, was lacking. And then the other thing that she does fulfil is this requirement of bilingualism that the Prime Minister had said was important and in fact had enshrined in legislation.

So you know, I think it’s a great appointment. And if we dive a bit even to kind of some of her background, maybe the listeners are interested if they don’t know who she is. Just generally, she’s a graduate from the University of Alberta Law Faculty, 1979. I should point out, just speaking of timing, that it appears that Chief Justice Moreau, I guess now Justice Moreau, is 67 years old. I couldn’t get official confirmation anywhere but I saw it in publication when she was appointed.

Yves: No, there’s a lot of questions about what her age might be, but yes.

Nadia: Yeah, I think when she was appointed Chief Justice, this, her age, was mentioned. And then if you add in the few years since then, I think she’s 67. And obviously we know that the age of retirement, the mandatory age is 75. So she’s not going to be able to stay there as long maybe as other members of the court, but still will have an impact with kind of eight years there if she decides to stay until the end.

And looking at her background, she was the first woman appointed to the position of Chief Justice of the Alberta Court of Kings Bench in 2017. Prior to that she was a justice of that court for over 23 years, so extensive experience obviously. And prior to becoming a judge, she practiced in criminal law, constitutional law, civil litigation in Edmonton. I mean she’s appeared before all levels of court.

And a few things that I thought were of interest, and maybe this is also because of my bias, but she has appeared before the court in several language right cases when she used to be counsel. And two of them that come to mind are Paquette and [Marier] Tremblay, both cases that are kind of cases that are still to this day mentioned in the context of language rights. So you could see that she has a keen interest there.

In addition to that, speaking of her interest in terms of protecting kind of the minority French speaking community, she also was the founding member of Association des juristes d'expression française de l'Alberta. And so she really hits all the various, I think, criteria that the government was probably looking for. She’s also been actively involved in education and administration at the NJI. She’s the former President of the Canadian Superior Court Judges Assocation.

So she has extensive experience in leadership roles. And she also has international law experience. And she’s been involved in international judicial education, particularly more recently. She’s been part of the committee that’s been put together to support the judicial reform project in Ukraine.

So I think it’s fair to say that she’s extremely qualified, and I think that based on what I’ve seen in the last 24 hours, a welcome addition to the bench, and a welcome appointment, I guess for now, nomination to the bench. And nothing bad has been said yet about her appointment by the legal bar.

Yves: She does replace another Albertan who I suspect is, to characterize him – and I’m talking about Justice Brown – as having certain inclinations, is probably a bit of a dangerous game because I think it’s probably a lot more nuanced. But he was perceived as a more conservative judge on the court. Does this change anything?

Nadia: You know what, and we’ll get to it in a moment, with the Impact Assessment act Case, maybe the answer is no, it doesn’t change anything because as we’ll see in a moment, a lot of people thought with the absence of Justice Brown that the decision would have been quite different. And in fact, the Alberta Government was successful in that decision overall.

And so I don’t know that we can really predict. There’s no doubt that Justice Brown had certain views with respect to statutory interpretation, constitutional law, but we’ll have to see how Justice Moreau is. And I don’t know that looking at her cases, we can glean anything from them. And so I think it’s TBD really in terms of where this is going to go.

I will simply say that I would have thought, based on the last appointment, that the Government would have wanted to appoint someone that would have been there for a longer period of time. That’s the only thing, because obviously we don’t know what’s going to happen in this political world. And so if they want to make their mark, they want someone that’s going to be there 15, 20 years. And obviously that’s not going to be the case with Justice Moreau.

Yves: Having said that, this is the sixth appointment by this Prime Minister.

Nadia: Fair enough.

Yves: So perhaps that gave them some comfort that the court has been shaped by this government.

Nadia: That’s possible, absolutely. But as we know from previous experience, people come and go, so you never know if someone decides to retire ahead of time or not. And I don’t have any inside knowledge there. So that’s the other thing to keep in mind.

But I think that you know what, at the end of the day, it is nice to be able to see that this is an additional appointment that goes in the direction also of diversity: having a woman, having someone that’s bilingual.

Yves: Before we talk a little bit about what’s been on the court’s docket and the judgements that it has rendered, a quick question. We noticed recently that the court announced some news about delivering summaries on its judgements. What’s that about? Is this a response to ‘let’s call them complaints out in the community’ that we wanted to know a little bit more what was happening on the oral judgement front? How do you see this?

Nadia: Well let me start off by saying that those summaries that are prepared and posted are prepared by the communication staff of the Supreme Court. Not to say that they’re not accurate. They’re very accurate. But they have a specific purpose which is really to help the public better understand court decisions.

And so they don’t form part of the court’s reasons for judgement and shouldn’t be used in legal proceedings. I think this news follows, Yves, the court’s most recent effort to increase access to justice by allowing the public but also the media to understand their judgement. And when it comes to the issue of summaries of oral reasons, you may recall a few years ago there was a lot of backlash when all of a sudden, the court was releasing a lot of decisions from the bench.

I think we had a year where there was a significant number of them and people were wondering why. They were also in the context of criminal law. And in fact, there were several legal practitioners including, you may remember, Frank Addario who penned an op-ed saying this is not fair, this is not a transparent court. Why are we in the context of these cases being given two, four paragraphs compared to civil law cases?

And so that was one criticism. And then the additional criticism was from the media: we can’t find these decisions because obviously they weren’t transcribed, the oral judgements. You had to go on the webcast and kind of listen in. And so I think the court took that to heart frankly. And since then, we’ve seen an improvement in transparency. So I welcome that. So if you now click on those decisions, the most recent one I think is Johnson. You can listen to actually the delivery of the judgement by the court. You can also look at the transcription of that oral judgement. And then there’s a summary of it. So now you have it all in one place so that it's easy to find and access.

And I think that’s fair. That obviously allows the legal community to have access to that information. It may not deal, strictly speaking, with the concern that Frank Addario and the member of the criminal bar had about: why can’t we have more information to explain some of these decisions? But look, we know the court is entitled to issue decisions from the bench. And there may be circumstances where this is appropriate if they feel that they can simply endorse one of the decisions of the lower courts.

Yves: Let’s talk a little bit about the judgements that have been released recently. What do you want to start with? Actually, should we start with the IAA ruling just because we mentioned it already? So we know now that the courts essentially ruled that Parliament does have the power to enact a scheme of environmental assessment, but in this case, it went too far. So where does this leave us in terms of this federal, provincial complicated relationship in terms of the environmental file?

Nadia: I agree. I think that that decision to a lot of people came frankly as a bit of surprise if we think about the last time the court opined on a decision in the context of environmental law, which was the greenhouse gas. And of course that was a completely different outcome there.

In this case, you’ll remember, Yves, that the court was looking at the constitutionality of federal environmental assessment, came under the Impact Assessment Act and one its regs, the physical activities regulation. And it was a really complex scheme frankly that was in place. And from the moment that the feds enacted that, the Alberta Government said, “Look, we think this is unconstitutional.” And several provinces said the same thing. So they referred those questions over to the court to decide whether or not the act was beyond Parliament’s legislative authority under the constitution, and second, whether the regulations were unconstitutional because they apply to matters entirely within the legislative authority of the provinces.

And Alberta Government was successful all the way along up to this Supreme Court, and they were successful at the Supreme Court. Essentially, what the majority of the court says was that we were looking at two schemes here, one that really applied, a discrete scheme that applied to regulation of activities on federal land or outside of Canada. And they determined that what I call the federal project scheme was constitutional. But the balance of the scheme that related to regulation of the designated project, what I call the designated project scheme, plainly overstepped Parliament’s legislative competence.

And I think this represents a major victory for Alberta and several other provinces who argued that it impermissibly intruded on provincial jurisdiction. And so, unlike, as I mentioned, the reference in greenhouse gas where the court upheld the federal carbon pricing regime, here that is not the case. So I think that it’s important. One piece that is both adopted, by the majority and also the dissent, is the fact that there is coexistence of shared responsibilities over matters like environment. And it’s not unusual, and it can work.

But what the court says here basically is that the Federal Environment Assessment must be clearly rooted within a federal head of power and can’t veer towards projects or evaluating the wisdom of these projects. This is where it went a step too far.

And so as I said before, a lot of people thought with the absence of Justice Brown that this decision may have gone in a different way, and we saw that that wasn’t the case. We did have obviously the dissent of Justice Karakatsanis and Jamal. But it is a major step, kind of the recent saga of constitutional cases etching out federal/provincial jurisdiction over environment.

And I think it does send a clear signal that the Federal Government has to respect provincial legislation competence in that sphere. This decision will almost certainly impact future constitutional challenge regarding environmental matters including any challenge of the government’s proposed cap on oil/gas emission. That’s something that’s been talked about.

I think we should note though that this decision is a non-binding advisory reference case. And Canada has already confirmed that it intends to table amendments in an attempt to rectify the unconstitutional provision of the IAA. So practically speaking, for existing permit holders or those who are currently undergoing an impact assessment, the effect of the decision may really depend on those future amendments.

And so notwithstanding this kind of near-term uncertainty, I think the decision still brings considerable clarity to the regulatory environment faced by project proponents, resource market participants who are likely going to experience greater regulatory transparency, I think certainty and frankly investor confidence. We all know, looking at what’s going on in the broader world, a lot of people have said: “Can’t invest in Canada, their regulatory system is so complicated, there’s too much risk.”

So interesting decision. I would say that let’s put one into the win for the provinces.

Yves: My takeaway is as if the feds and provinces are going to have to maybe talk to one another maybe a little bit more. Obviously, no one’s winning this war. They keep winning their own battles. But the court seems to be saying it doesn’t want to always be picking the same side on this one.

Nadia: I think that’s absolutely right. And the other thing that was interesting to me is to see kind of the evolution of who was on which side as well. We saw that just as Jamal and Karakatsanis that were in dissent, I thought that was interesting. I don’t know that we’ve seen them as a duo as much. And so I’m with you on that. I think it sends a message that even though you might have won in the greenhouse gas, and let’s remember that was a difference of scheme and we were dealing with [pod 00:16:34] – we weren’t dealing with the same head of powers here, the court saying you’re going to have to be careful.

I mean it really does come down though at the end of the day on how you describe the pith and substance of these schemes. And that’s where you have the differences between the majority and the dissent. So I think that it’s a really complicated issue and I don’t envy, frankly, the legislators that are sitting there trying to figure out: how do we resolve this big problem, and how do we do it in a way that is constitutionally valid?

And I think you’re right. There’s going to have to be a coming of minds of both the provincial and federal governments on that. But I don’t know. We’ll have to see whether or not that’s in the cards, given some of the political climate and maybe diversion views on that front.

Yves: Another case that was rendered, another judgement that was rendered, was in Mason versus Canada. This is where the court quashed immigration decisions that found two foreign nationals inadmissible to Canada. Why is this important?

Nadia: That case is important for anyone that is a geek in admin law, like I am, I would say. I think it’s obviously very important for our colleagues who practice in the immigration world. So that case basically dealt with the interpretation of Section 34.1E of the Immigration Refugee Protection Act. And what the court found: non-citizens can be found inadmissible to Canada and deported under that provision only if non-citizen’s alleged violent conduct has an access to national security or security of Canada.

So it really narrowed the application of that provision. But if you’re not in the immigration world and you practice in admin law, or you’re a decision-maker yourself, the decision has really important key takeaways. It was the first time that the court dealt with ‘how do we apply the standard of reasonableness since Vavilov.’ And it reaffirmed there the presumption of the standard of reasonableness because some of the parties in the case were trying to convince the court that in this particular scheme, the category of correctness applied.

And the reason why is because there’s a scheme under the Immigration Refugee Protection Act where you can have a certified question on appeal. And the parties were arguing that because it’s a certified question on appeal regime, that that warrants correctness. And the court said no and confirmed that it was reasonableness. I think that some of us have, looking at this decision, we think that the door is almost shut completely on new categories frankly of correctness. We will have to see.

The court may actually opine further on that, Yves, in the case that it heard earlier this year that deals with the Ontario Government and the Information Privacy Commissioner. You and I may have spoken about that. That’s related to those mandate letters that the Ford Government had given to cabinet ministers and refused to release.

And interestingly enough, there was a discussion at the hearing with Justice Jamal on the issue of what’s the applicable standard. And is it the applicable standard correctness, seeing as we were dealing with the concept of cabinet privilege?

So the court may come back to it. But looking at Mason on its face right now, I think correctness is pretty much gone. Unless you fit within one of the categories that’s been already established, not going to happen. But in addition to that, why Mason is so fundamental both for practitioners and decision-makers is that really, the court there says look, we have to start as a reviewing court with the reasons of the administrative tribunal. That’s what we need to start with.

And the reasons themselves have to address key arguments and submissions made by the party. It can be implicit. And you might remember in Vavilov, there’s a lot of language in some of the previous case law about contextual approach, saying we have to look at the whole context. We have to look at the whole record. The court is doubling down on saying no, no, we start with the reasons. Did the reason address all the fundamental arguments and submissions? Did the decision-makers grapple with all of these issues and arguments that were made by the parties? If not, then you know what? Your decision is probably at risk of being reviewed.

And So I think that Mason is important for that. And I think that decision-makers would be wise to be careful about how they write decisions. And this approach that we’ve seen in the past in the administrative world having boiler plate reasons is not going to cut it, in light of Mason.

But that being said, I think, not to use the pun, context is important obviously. Like if you were a specific type, first-line type of administrative tribunal, you may not have the same level of obligation as let’s say you being an adjudicative tribunal. So we have to keep that in mind as well as we go forward and apply Mason.

Yves: So what else caught your attention in terms of judgements that have been rendered?

Nadia: I would simply mention quickly the decision of La Presse versus Quebec. And some people have referred to that case as the secret trial case. And it dealt with the issue of publication ban. In fact, there were kind of two cases that were heard together there. You’ll remember one out of Quebec and one out of BC. The BC one was in the aftermath of the Amanda Todd case. And so I think that that’s a really important case for those that practice in the criminal law and publication ban – are often an issue.

The court here clarified for us kind of the circumstances in which those are applicable and it touches on principles of open court, trial fairness and when is the appropriate balance between ensuring an accused right to a fair trial and the public interest in court openness. And so, Chief Justice Wagner is the one that kind of wrote decision here and looked at the appropriate criteria to apply.

And the court confirmed that although publications ban limit the open court principle, they do so in a way that protects the accused’s rights too and society’s interest in a fair trial, and that those two goals are not irreconcilable. And so the case I think is really significant for clarifying a point of law that has been the subject to several varying judicial interpretations across the country.

And the court noted that different courts understood this specific provision 6481 differently. Some had interpreted it as applying both before and after juries are impanelled, with some courts drawing the boundaries of its application base on the substance of the information or the hearing the ban applied to. And so, the primary reason I think the Supreme Court decided to rule on the publication ban despite our expiry in this case by the way, was the resolve the uncertainty.

So I do commend the case to our friends that practice in this area. I think it’s an important one to keep in mind.

Yves: Were you surprised by it or is it something perhaps in media circles? I think they were a bit scandalized also about all these reports about secret trials and whatnot. I’m wondering if the media doesn’t see this as a case of, “Well, just trust us. We’ll ensure that the proper balance is there.”

Nadia: I mean I don’t know that I was surprised. Although I have to say that this was one of those rare, unanimous cases from the court. So read into that what you would like. I think that what basically comes out of this clearly is there’s no kind of zero sum trade-off between open court principle and the right to fair trial. I think the court’s saying, “Look, you have to look at it, both of these together. There’s ways for those to co-exist in a way.” So I don’t know that I would say I’m surprised. But I think it’s welcome guidance and clarity from the court on the operation of 6481.

Yves: Let’s talk about some of the upcoming hearings. Restoole is an interesting treaty case, right?

Nadia: It is very interesting. And in a nutshell, it deals with treaty interpretation. And in that case whether an augmentation clause in an 1850 treaty entitled the Anishinaabe Nation to an increase in annuity payment payable to the community in perpetuity in exchange for cessation of vast territory in Northern Ontario.

Yves: This is the treaty that goes back to 1850.

Nadia: Yes. It does.

Yves: And I think the annuity was raised once.

Nadia: Correct, correct. That’s right. And this case has been going on for a very long time. It had multiple phases frankly. So I think this will be a very important case for those us of kind of practicing in the indigenous world because the course will look at the standard of appellant review for treaty interpretation. And I think the degree to which the Crown’s discretion in implementing the augmentation clause is feathered by the principle of the honour of the Crown. So I think let’s stay tuned for that. It’s said to be heard on November 7th and 8th.

Yves: What’s at stake for the government here? Is this going to have wide application, or is this a very unique kind of set of facts in case?

Nadia: No. I think that it actually may have wide application as it relates to the interpretation of treaties, Yves. And it’s true that the Robinson treaties are unique in some respect. However the growing trend for courts to give serious weight to the perspective of indigenous people may impact many ongoing legal disputes involving treaties.

So I think as courts begin to appreciate the understanding of treaties from the perspective of indigenous [unintelligible 00:26:32], and the law on treaties may shift to be more consistent with those perspectives, and so the recognition of the treaties underlying kind of intent could open the door for other groups to be on stronger footing when asserting their own historic treaty interpretations.

Yves: So there are a couple of other cases. We talked about in the past, Dow Chemical. There’s Yatar. Out of Newfoundland we have the Lynch expropriation case. And there’s Power which is the X-ray technician who was suspended from work after his employer discovered he had a criminal record, and he was trying to get a pardon. Of those, which one are you really keeping your eye out on?

Nadia: They’re all really interesting cases and all from different various perspectives. I would say that as I mentioned before, I am a bit of a geek when it comes to admin law. So Yatar is one that I’m keeping on my radar. It’s scheduled to be heard on November 15th. And it kind of deals with this issue of the extent to which legislators can limit judicial review, and the interplay between statutory right of appeals, NJR. So I think a lot of people have been looking at that. There’s been a lot of controversy among various courts.

There’s been Federal Court of Appeal decisions that are not consistent, so I think certainly something to keep an eye on. And there’s 11 interveners. So you can see that there’s definitely something of interest to a lot of people.

I would say that definitely the Power case is another one that is on everyone’s radar, kind of an opportunity for the court again to look at whether or not the respondent’s claims in this case were foreclosed. And frankly, the issue is: is the Crown immune from a civil suit for charter damages for the enactment of legislation that is later declared constitutional? We all thought maybe this was resolved back in 2002, Mackin. But another opportunity for the court to look at it, 18 interveners, the speaker of the senate, the speaker of the house, everyone’s intervening in that case. So I think it’ll definitely be an interesting one to keep an eye on frankly as we go forward.

I just want to mention one thing, Yves. We’ve talked in the past about interveners. And I should have mentioned that when I was talking about Yatar. You’ll remember that we talked about the fact that the court had issued this direction, kind of giving some advice, guidance to proposed interveners. And in Yatar, interestingly enough, 12 parties sought leave to intervene, 11 were granted. And the party that was not granted leave to intervene, the Ontario Trial Lawyers Association, was denied leave by Justice Rowe because he found that they were raising new issues, and submissions they were making were going to be duplicative of the appellant submission.

So I think Justice Rowe has been taking really a harsh approach. Maybe harsh is not the right word, but certainly a strict approach to the test on intervention.

Yves: Eleven out of twelve ain’t bad.

Nadia: That’s true. But if you’re that one party that did not get leave to intervene.

Yves: Terrible.

Nadia: And you have to explain that to your client. It may be a bit challenging. But I just thought I’d flag that because we’ve talked about that in the past and we’ve talked about the fact that this was also raised in McGregor. And there was a controversy about the role of interveners, so something to keep an eye on there for sure.

Yves: Let’s talk about leaves that have been granted. Are there any of particular note that we should be looking at a bit more carefully?

Nadia: I think there’s an interesting one that was granted out of the Province of Quebec, la Commission des droits de la personne et des droits de la jeunesse contre la Directeur de la protection de la jeunesse. As the style of cause says, it involves youth protection. And really it will have I think important implications on the scope of provincial judges and their statutory remedial powers, and the ability of a judge to make corrective orders aimed at addressing systemic issues. And in this case, that was the issue that was at play: is whether or not the order of the judge went beyond the scope of the powers.

And so I think that will be a really interesting decision, to see whether or not the Court of Quebec has jurisdiction to make these kinds of corrective orders. And even though the institution wasn’t a named party in this case, something to say tuned for.

Yves: Anything else?

Nadia: I would say just very quickly, there’s this international air transportation association, involves transport law. And for those people that practice in the Canadian Transportation Agency world, it involved the validity of regulations that were adopted by the agency to compensate air passengers for various delays experienced in the course of international air travel, something that we’re probably all very familiar with. And so it really does involve the validity of those regs, and I think also the interplay with Canada’s international obligation under the Montreal Convention. So stay tuned for that one. I think it will be interesting to see what the court does with it.

Yves: Just out of curiosity, how long does it take – you know, just to end on this – so Justice Moreau, how long before she’s on the job?

Nadia: I’m not behind closed doors with the Chief Justice and Justice Moreau. But I would suspect, given how heavy their docket is, that I wouldn’t be surprised if we heard that she participated in a kind of private swearing in, and that she would actually be sitting on the cases coming November, frankly. I think I could see that.

Obviously, she’ll have a lot of reading to do. But that wouldn’t surprise me, Yves, given that obviously the court has been short-staffed in a way for a very long time. And there are a lot of interesting key decisions that are being looked at in the coming weeks. So I would have thought that the Chief Justice wants to ensure that he has the full panel, full court sitting on these decisions.

Yves: Nadia, as always, thank you so much for your insight into the workings and the work of the Supreme Court of Canada. So I appreciate you coming on the show today.

Nadia: My pleasure, Yves, until next time.