2022 Year in Review - Part I

A few big cases and some interesting trends in Supreme Court jurisprudence

It seemed a relatively quiet year for constitutional law on the Supreme Court. No major Charter of Rights cases on big social policies (although plenty affecting Legal Rights under the Charter, which we’ll get to), and unless both my memory and searches failed me, we didn’t have a single division of powers case…

Nonetheless, there are some interesting trends to consider. First, in the area of police powers and/or criminal law, we see a lot of divided decisions on search and seizure cases (R. v. Stairs, R. v. Tim), right to counsel (R. v. J.F.), and trial within a reasonable time (R. v. Lafrance). Some of these might reflect a bit of a conservative versus liberal split on the Court. What’s important to note is that Justice Brown, considered a conservative justice by some, often joins his more liberal colleagues in these cases. This might be perceived as unusual on the US Court but because judges are not appointed on the partisan/ideological basis of their American counterparts, it is not uncommon to see the complex ways ideology or ‘conceptions of justice’ inform judicial behaviour on the Canadian Court.

My first book, Governing from the Bench, explores this dynamic, and notes, for example, how former Justice Claire L’Heureux-Dubé was famously ‘conservative’ on criminal matters while ‘liberal’ on others (such as equality). In Brown’s case it seems he is a principled libertarian advocate when it comes to issues of privacy and other protections against the state (although court watchers who follow criminal law and legal rights decisions/voting patterns more than I do might have a more accurate take on this).

A second and related trend we saw continue in 2022 is the judicial dismantling of Stephen Harper’s Conservative government’s criminal justice policy. This is something that began when the Conservatives still held office as mandatory minimum sentences and other policies began to be struck down. This past year saw the Court unanimously invalidate the concurrent sentencing regime in R v. Bissonnette and split 5-4 in striking the mandatory registration on the national sex offender registry in R. v. Ndhlovu. The Bissonnette decision is not without controversy. There is certainly some logic to the idea that true ‘life’ sentences with no chance of parole constitute cruel and unusual punishment, but it’s not entirely clear why 25 years is a magic number in this regard (for a detailed critique see Leonid Sirota and Maxime St-Hiliaire’s take here). Nonetheless, that the Court was unanimous on this one reinforces the extent to which, even having appointed a majority of the Court deciding Bissonnette, Harper was unable to ‘capture’ the Supreme Court to hold up his criminal justice policy agenda.

Other big cases:

In companion cases R. v. Sullivan and R v. Brown the Court unanimous ruled that section 33.1 of the Criminal Code, preventing sexual assault defendants from employing the ‘extreme intoxication defence’ (self‑induced intoxication akin to automatism) was unconstitutional. This is another blow to the Hogg/Thornton idea of a Charter “dialogue” between courts and legislatures, in that in almost every instance a legislature has genuinely “pushed back” against previous judicial decisions - in this case a common law ruling - the subsequent judicial review results in the judicially-preferred policy winning out. Legislatures might be able to “respond” to judicial decisions on Charter grounds, but Courts tend to get the final word. This was one of the few cases routinely cited as dialogic in nature because it involved a clear attempt by Parliament to effectively reverse a judicial holding. The only notable aspect was how long the law lasted before finally reaching the Supreme Court. (Which isn’t a statement that the Court was wrong here. At the very least a lot of experts agreed that such a law could be better crafted; indeed, Parliament moved to replace it, but in a rushed manner that Kerri Froc and others have rightly criticized.)

In R. v. J.J., a divided Court upheld as constitutional Criminal Code provisions dealing with how sexual assault defendants can introduce or use personal information they have in their possession as evidence in their defence. These provisions were effectively an expansion on existing ‘rape shield’ protections designed to protect complainants and to lower barriers that deter them from coming forward. The dissenting judgment by Brown (with Cote and Rowe) is particularly scathing on issues of trial fairness and the right to self-incrimination, etc.

Finally, in R. v. Sharma the Court split again, upholding 2012 amendments to the Criminal Code making conditional sentences unavailable to certain offenders based on the severity of the sentence they faced (as a proxy for seriousness of the offence). The case involved an Indigenous defendant, and the dissenting justices would have struck the law down on the basis of section 15 equality rights as well as section 7 grounds.

Two big implications emerge from Sharma. The first is that once again the Court divides on ideological grounds (5-4) over the approach to identifying discrimination under section 15. The majority assert that the defence did not demonstrate that the provisions at issue created differential treatment, while the dissenters rightly point out the need to assess the law in the context of the broader criminal justice system and its glaring disproportionate outcomes for Indigenous peoples. It’s a frustrating example of the inability of some justices to truly understand the nature of systemic discrimination.

The case is also proof that despite the evolution of section 15 over time, and cases like Fraser recognizing adverse effects discrimination, the equality rights jurisprudence remains very unsettled and dependent upon who is appointed to the Court. With Justice Abella’s retirement, will the more conservative end of the bench continue to hold back a substantive conception of equality? Or will the Court swing back to a more progressive approach with Justice Moldaver since having left the bench and Justice O’Bonsawin arriving? The next few years should be interesting.