A Landmark Year for the Supreme Court

Policy - - In This Issue - Caris­sima Mathen

From the sanc­tity of the Griz­zly Bear spirit to the more sec­u­lar sanc­tity of unim­peded ac­cess to cheap beer, the Supreme Court of Canada spent 2017 wrestling with quintessen­tially Cana­dian ques­tions. As the de­par­ture of Chief Jus­tice Bev­er­ley McLach­lin marks the end of an era at the Court, con­sti­tu­tional scholar and Court-watcher Caris­sima Mathen looks back at an event­ful year and lays out the stakes ahead.

At the end of what has been a barn­burner year for the Supreme Court of Canada, it’s worth tak­ing a mo­ment to re­flect on the var­i­ous is­sues that have shaped this pro­foundly im­por­tant in­sti­tu­tion, and to pon­der what lies ahead.

As ever, the Court grap­pled with ex­traor­di­nar­ily im­por­tant is­sues. Two of the best ex­am­ples are Ktu­naxa v. Bri­tish Columbia and R. v. Comeau.

Ktu­naxa in­volved a 26-year dis­pute over the de­vel­op­ment of a ski re­sort in Jumbo Val­ley, B.C. Two groups—the Shuswap and the Ktu­naxa—claimed that the project would im­pair their Abo­rig­i­nal rights guar­an­teed un­der the Con­sti­tu­tion Act 1982. The B.C. gov­ern­ment duly en­tered into ne­go­ti­a­tions over ev­ery­thing from en­vi­ron­men­tal and species pro­tec­tion to fi­nan­cial com­pen­sa­tion. Even­tu­ally, the Shuswap were sat­is­fied but the Ktu­naxa were not. In 2009, the Ktu­naxa ad­vised the gov­ern­ment that any per­ma­nent hu­man habi­ta­tion or struc­tures would de­stroy the group’s con­nec­tion with a spirit (Griz­zly Bear) in the area, and ren­der their songs and re­li­gious cer­e­monies mean­ing­less. Such a re­sult, they said, would of­fend sec­tion 2(a) of the Char­ter, which guar­an­tees ev­ery­one “free­dom of con­science and reli­gion”.

The Ktu­naxa case posed a novel ques­tion: does re­li­gious free­dom ex­tend to phys­i­cal places that a par­tic­u­lar group con­sid­ers “sa­cred”? In the past, the Court has ar­tic­u­lated such a broad ap­proach to sec­tion 2(a) that it would ap­pear to in­clude such a claim—although the right would then be sub­ject to “rea­son­able lim­its” un­der the Char­ter’s Sec­tion 1.

In its Novem­ber rul­ing, the Court de­cided that the prospect of balanc­ing such a re­li­gious claim against other in­ter­ests was a step too far. It ruled 7-2 that, while the Ktu­naxa peo­ple have a con­sti­tu­tional right to man­i­fest their be­lief in Griz­zly Bear Spirit, the Char­ter did not im­pose on the state a cor­re­spond­ing duty to pro­tect that spirit. The Court went on to find, unan­i­mously, that the B.C. min­is­ter’s de­ci­sion was rea­son­able: it gave due con­sid­er­a­tion to the var­i­ous claims and in­ter­ests, and thereby had ful­filled the state’s re­spon­si­bil­ity, in In­dige­nous claims, to al­ways act in ac­cor­dance with “the hon­our of the Crown.” Ktu­naxa pro­voked crit­i­cism. The ma­jor­ity’s anal­y­sis sug­gests a re­trench­ment from a decade-old highly lib­eral ap­proach to free­dom of reli­gion. Some have also pointed out that an ap­proach to sec­tion 2(a) that rules out pro­tec­tion for “sites” may have dis­parate ef­fects on In­dige­nous peo­ples who man­i­fest par­tic­u­larly deep con­nec­tions with land or other phys­i­cal struc­tures.

An­other sig­nif­i­cant ap­peal was Comeau v. The Queen, or, as it is known, the “free the beer” case. In 2012, the New Brunswick gov­ern­ment charged Gérard Comeau, a re­tired NB Power line­man, with pos­ses­sion of un­law­ful quan­ti­ties of al­co­hol that he had pur­chased in Que­bec and brought back to his home in Tra­cadie. At trial, Comeau ad­vanced an au­da­cious ar­gu­ment: the pro­vin­cial law ran afoul of sec­tion 121 of the Con­sti­tu­tion Act 1867. That clause pro­vides that “ar­ti­cles of man­u­fac­ture” from one prov­ince “shall be ad­mit­ted free” into all of the oth­ers. De­spite long-stand­ing case law con­fin­ing the scope of the clause to ac­tual tar­iffs or du­ties, the trial judge ruled that sec­tion 121 should be read to en­com­pass non-tar­iff bar­ri­ers as well. On that ba­sis, he found the pro­vin­cial of­fence to be in­valid.

Af­ter the New Brunswick Court of Ap­peal re­fused to ad­ju­di­cate the mat­ter, the Supreme Court was forced to weigh in. At the hear­ing on De­cem­ber 6-7, nine prov­inces and two ter­ri­to­ries par­tic­i­pated—a sign that a case is of truly na­tional im­port. All of them, joined by the At­tor­ney Gen­eral of Canada, urged the Court not to ex­pand sec­tion 121’s mean-

ing. Do­ing so, they ar­gued, would “end fed­er­al­ism as we know it.” Comeau’s coun­sel, sup­ported by nu­mer­ous in­ter­ven­ers rang­ing from the Cana­dian Cham­ber of Com­merce to Fed­eral Express, de­fended the trial de­ci­sion. They ar­gued that the “orig­i­nal in­tent” of sec­tion 121 had been sub­verted by decades of re­gional and in­dus­try-spe­cific pro­tec­tion­ism. If the trial de­ci­sion is up­held, it could put at risk dozens of pro­vin­cial laws af­fect­ing ev­ery­thing from agri­cul­tural mar­ket­ing to e-com­merce. The Supreme Court, though, seemed skep­ti­cal of the lower court de­ci­sion; and the judges noted that a num­ber of the ar­gu­ments in its favour were rooted in pol­icy choices that, no mat­ter how sound, are not man­dated by the 1867 Con­sti­tu­tion. The Court has re­served the mat­ter, and a de­ci­sion is ex­pected some­time in 2018.

It is dif­fi­cult to over­state McLach­lin’s in­flu­ence. She has writ­ten dozens of landmark rul­ings in vir­tu­ally every area in­clud­ing fed­er­al­ism, the Char­ter, Abo­rig­i­nal rights, and crim­i­nal law.

The Comeau ap­peal has the distinc­tion of be­ing the fi­nal ap­peal presided over by Chief Jus­tice Bev­er­ley McLach­lin. Her de­par­ture is eas­ily the Court’s most sig­nif­i­cant change in decades. First ap­pointed to the Court in 1989, McLach­lin quickly be­came one of its most im­por­tant voices. In 2000, she was ap­pointed as the Court’s first fe­male chief jus­tice—one of the first women in the world to hold such a post on an apex court.

It is dif­fi­cult to over­state McLach­lin’s in­flu­ence. She has writ­ten dozens of landmark rul­ings in vir­tu­ally every area in­clud­ing fed­er­al­ism, the Char­ter, Abo­rig­i­nal rights, and crim­i­nal law. She crafted the ap­proach to the coun­try’s cur­rent rape shield laws which largely have with­stood the test of time. She was an early dis­senter (and rights de­fender) in Char­ter de­ci­sions such as R. v. Keegstra, which dealt with hate speech; and R v. Ro­driguez, which up­held the crim­i­nal pro­hi­bi­tion against as­sisted sui­cide (a rul­ing she helped to over­turn in 2015).

McLach­lin’s de­par­ture thrust two choices on Prime Min­is­ter Justin Trudeau: fill­ing her seat, and se­lect­ing her suc­ces­sor as chief jus­tice. Both re­quire care­ful ne­go­ti­a­tion of tra­di­tions and po­lit­i­cal ex­pec­ta­tions, not to men­tion the Court’s ac­tual needs. A sense of the strug­gle can be seen in the re­ac­tion to Trudeau’s choice of Al­berta judge Sheilah Martin to fill McLach­lin’s “Western” seat. A hugely tal­ented scholar, ad­vo­cate and ju­rist, Jus­tice Martin—the sec­ond ap­pointee named un­der a new nom­i­na­tion process that in­cludes an in­de­pen­dent ad­vi­sory board headed by for­mer Prime Min­is­ter Kim Camp­bell—ex­em­pli­fies le­gal ex­cel­lence and a deep com­mit­ment to pub­lic ser­vice. It is hard to think of a more qual­i­fied can­di­date, and al­most no one has crit­i­cized her di­rectly. But many did express pro­found dis­ap­point­ment at the Prime Min­is­ter’s fail­ure to se­lect an In­dige­nous per­son. In truth, it is in­creas­ingly dif­fi­cult to ex­plain how, in 142 years, the Court has never had a non­white ju­rist (some­thing the United States achieved fifty years ago).

With re­spect to se­lect­ing a Chief Jus­tice, Trudeau faced com­pet­ing tra­di­tions. One ro­tates the po­si­tion between com­mon and civil law ju­rists —in this case, favour­ing one of the three Que­bec judges on the Court. The other gives the nod to the most se­nior puisne judge. On De­cem­ber 12, Trudeau an­nounced that Que­bec ju­rist Richard Wag­ner (ap­pointed to the Court in 2012) would as­sume the top spot. At 60, the charm­ing and forth­right Wag­ner could oc­cupy the po­si­tion for 15 years.

Wag­ner is sure to con­tinue McLach­lin’s tra­di­tion of pub­lic en­gage­ment and her var­i­ous ini­tia­tives to ren­der the Court more un­der­stand­able to ordinary cit­i­zens. In his new role, he also will have to con­tend with nu­mer­ous ap­peals of damnable com­plex­ity in­clud­ing: Saskatchewan’s ob­jec­tion to the fed­eral car­bon tax; Ja­son Ken­ney’s mus­ings about us­ing a pro­vin­cial ref­er­en­dum to force a re­think of the equal­iza­tion for­mula; and the on­go­ing Char­ter chal­lenge to Que­bec’s anti-niqab law. The de­part­ing chief jus­tice was a ge­nius at nav­i­gat­ing the most con­tro­ver­sial is­sues of the day, in­clud­ing strik­ing down leg­is­la­tion, while main­tain­ing the con­fi­dence of the vast ma­jor­ity of Cana­di­ans. Any executive ac­tor fool­ish enough to tus­sle with her in­vari­ably got the worst of it, Stephen Harper be­ing the most prom­i­nent ex­am­ple when the Court de­clined to seat one of his nom­i­nees, Marc Nadon, in 2014. One hopes that the Court will stay true to McLach­lin’s ex­am­ple, per­form­ing its essen­tial con­sti­tu­tional func­tion for the ben­e­fit of all Cana­di­ans for many decades to come.

Wikipedia photo

Bev­er­ley McLach­lin, writes Caris­sima Mathen: “A ge­nius at nav­i­gat­ing the most con­tro­ver­sial is­sues of the day.”

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