2023 Year in Review at the SCC

I don’t know about you, but ever since the pandemic, I have no sense of time. With some major news events, I might be shocked to discover something occurred two years ago when it seems like only 6 months have passed, or conversely, similarly shocked to find out something else occurred just 3 months ago when it feels like a year has passed.

So it might be doubly useful to take a quick review of some of the major constitutional cases the Supreme Court decided in 2023. It’s worth beginning this review to remind everyone that at the start of 2023, Russell Brown was still a judge in good standing at the Court. The events around Brown’s eventual resignation seemed drawn out - they first began with his unexplained absence at oral hearings beginning around February; only later would we learn he was subject to a complaint to the Canadian Judicial Council that would eventually be revealed to stem from an altercation at an Arizona resort. The CJC investigation itself seemed quite slow, and was incredibly opaque. Brown eventually opted to resign instead of leaving the Court down a judge indefinitely, and the public would never learn what findings might have been presented by the CJC inquiry or even whether the events should have cost Brown his job. Whatever one might think from the news reports, it is clear there’s a real need a reform in that particular process. A Supreme Court justice was effectively removed on the basis of a complaint (around which there were many questions). And none of us really knows for sure whether the complaint had any merit. That’s a big issue for a Court - and, frankly, a country - that has major transparency problems. It’s hard to believe all of that occurred in the last 11 months.

In January, the Court heard two companion cases on mandatory minimum sentences, finding one unconstitutional and upholding another. There are undoubtedly problematic aspects to mandatory minimums, and generally speaking Parliament would be better off just finding a way to craft criminal laws to impose strong sentencing guidelines that require courts to justify (rare) exceptions rather than attempt to impose mandatory minimums that eviscerate all judicial discretion. Still, something has never quite sat right with the way in which the Court has approached striking down mandatory minimums. The “reasonably foreseeable hypotheticals” approach allows courts to inquire into plausible scenarios where the sentences would be grossly disproportionate. So rather than limiting their constitutional assessment to the cases and circumstances before them, judges are now invited to literally use their imagination to determine the constitutionality of certain sentences. It’s an approach that arguably makes it too easy for courts to substitute their own judgement for that of Parliament’s.

There were a number of other interesting cases implicating Legal Rights under the Charter. One involved the reasonableness of a search conducted abroad by military investigators who received assistance from foreign police officials to obtain a warrant (the Court upheld this as justifiable). Another involved an unlawful random stop by police of a vehicle but where the Supreme Court ultimately - and reversing an acquittal supported by two of the courts below - determined that the evidence should not be excluded because of the legal uncertainty that existed at the time. The Court divided again in another decision on when to exclude evidence in a case involving, among other things, an unlawful use of a sniffer dog.

A couple of big division of powers cases landed in 2023. One involved the validity of a Quebec law that prohibits the cultivation and possession of cannabis plants inside homes, in favour of its new state-sanctioned monopoly to regulate and sell cannabis products (in the face of the federal law allowing the possession of up to four plants in a home). The Court upheld the Quebec scheme as a valid exercise of provincial jurisdiction over property and civil rights.

Perhaps the biggest case of the year was Reference re Impact Assessment Act. A divided Court found the federal law, which sought to collect information and regulate undertakings based on their impact so long as there were “effects within federal jurisdiction”. The problem, from the majority’s perspective, was that the legislation cast far too broad a net, threatening to impinge directly on projects firmly within provincial jurisdiction. The dissenting judges felt, conversely, that the legislation was tailored in a way that ensured each of the effects assessed would be anchored to a federal area of oversight. They felt the question of overreach ought to be subject to case-specific judicial review. Although a blow for the federal government, there are good reasons to think more carefully-tailored legislation could meet substantially the same objectives.

In another big case, and the biggest Charter case of the year, the Court upheld the relevant provisions of the Immigration and Refugee Protection Act that pertain to the “Safe Third-Country Agreement” (effectively disallowing refugee claims from individuals who come from a ‘safe’ third country, which includes the United States). A Federal Court judge had found the provisions violate section 7 because claimants faced the threat of refoulement and other harms associated with detention there. The Supreme Court overturned this decision, largely on the basis that the harms described involving one individual in detention in the US did not meet a “foreseeability” threshold, and that there existed safety valves to mitigate the risks of section 7 violations. However, the Court remitted equality rights claims under section 15 for consideration to the Federal Court.

The final constitutional case is a Charter case that is also kind-of-not-really a Charter case, because although it implicated section 23 (minority-language education rights) it involved non-rights holders and a request to the relevant Minister to have their children receive French-language instruction in the Northwest Territories. The case itself is thus primarily about administrative law, and the appropriate judicial review of the Minister’s decision, raising the old “reasonableness” debate from the Doré case (and indeed, re-asserting the continued relevance of Doré post-Vavilov). As Paul Daly writes, because the claimants were not actual section 23 rights holders, the case was not really a Charter case but a “Charter values” case (Charter values having long been imported into admin law decision-making by the Court). Here, there was a clear link between the Charter values at stake and the exercise of the Minister’s discretion. (If you’re not a public admin scholar and find this all fairly confusing, don’t worry, so do I). For a blistering and fun take on certain aspects of the decision, read what Leonid Sirota had to say.

Finally, and speaking of cases that have obvious implications for “Charter values”, a reminder that the Court also made an important decision in a defamation case that involved the application of an anti-SLAPP provision. This should have, I’ve argued here previously, an ‘easy case’ given that the original defamation claim was an attempt to silence valid criticism of a public official.

Minor notes:

• The Court continues to show a remarkable pattern of division in constitutional cases. Only a couple of the cases this year were unanimous decisions.

• Justice Côté continues her trend of writing alone, be it dissenting or concurring. It’s a fascinating pattern of behaviour, and I hope Peter McCormick, despite his retirement, will dig into it as Canada’s pre-eminent master of descriptive statistics and judicial decision-making.

• Perhaps these two things are linked - I’m curious what happens to the Court’s unanimity frequency if you remove Côté from the equation?