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What Happened at the SCC This Summer

Co-Editor-in-Chief Liz Guilbault Recaps a Busy Summer at the Supreme Court of Canada

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While you were off at the castle, or swimming at a cottage, or perhaps huddled over your desk on Bay Street, the Supreme Court of Canada continued the pursuit of justice in your absence from the law building. Here’s a rundown of some interesting judgments released over the summer months, and two news-worthy announcements from the Court.


R v Antic

In this decision, the SCC overturned the decision of an Ontario bail review judge who had struck down the limits on cash bail as unconstitutional. The Court did not address the constitutional challenge in its decision, because it was determined that the bail review judge had not applied the bail provisions correctly. Interestingly, this leaves the bail provision still open for a future constitutional challenge.

The most important and lauded part of the judgment, was Justice Wagner’s clarification of the correct approach to bail, which included 11 principles and guidelines for judges to look to when applying bail provisions in a contested hearing. Wagner J. highlighted the ladder principle as “central” to the law of bail: “Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.”[1]


R v Cody

Cody reinforces the R v Jordan decision, which was last year’s the kick-in-the-pants in the criminal system. Provinces intervened in the case in an attempt to ask the Court to make it easier to justify delay. While making a few distinctions, Cody did not aid provincial Crowns in the way that may have been hoped for. In a moderately helpful move, Cody clarifies that serious offences that were in the system before Jordan should be treated as harder to dismiss. The judgment also held that defence delay – where defence counsel delays proceedings as a tactic – will not count towards what a court can assess as the delay of a case.


Douez v Facebook

If you want to sue Facebook, you can do it provincial courts, says the SCC. Douez wanted to file a lawsuit in British Columbia against the social media company, but Facebook has a forum selection clause which it argued everyone agrees to when they agree to its terms of use. Douez was suing Facebook after it allegedly used her name and picture in an advertisement that showed her endorsing a company which said had “Liked”. The decision was not unanimous, but the majority found that Facebook’s forum selection clause is unenforceable: “the grossly uneven bargaining power between the parties and the importance of adjudicating quasi-constitutional privacy rights in the province are reasons of public policy that are compelling, and when considered together, are decisive in this case.”[2]


Google Inc v Equustek

The primary claim this case arose between two companies, Equuestek and Datalink, to which Google was a third party. Datalink was a former distributer of Equuestek, and Datalink allegedly relabeled on of Equuestek’s products as its own. In addition to terminating their agreement, Equuestek demanded of Datalink that they remove all references to Equuestek’s trademarks and products on Datalink’s websites. The SCC determined that de-indexing Datalink’s domain from Google globally was needed to stop irreparable harm befalling Equuestek. The SCC was not swayed by Google’s arguments of unreasonable inconvenience and right to freedom of expression.


Chippewas of the Thames First Nation v Enbridge

This case clarified an aspect of the duty to consult. The decision was the dismissal of an appeal by the Chippewas of the Thames First Nation that adequate consultation had occurred before the approval of a pipeline in Ontario.

Enbridge wanted to modify a pipeline so that it could carry heavy crude oil. The company applied to the National Energy Board (NEB), after which 19 Aboriginal groups were informed, including the Chippewas of the Thames First Nation, who were granted funding to participate in the process. Crown consultation is required in any case that deals with the inference with Aboriginal rights. The level of required consultation varies depending on the case. After the Chippewas of the Thames First Nation filed their evidence in the NEB process, they wrote a letter to the Crown asserting that no Crown consultation had taken place. The Minister of Natural Resources said that he was relying on the NEB process to fulfill the duty to consult.

This prompted the Chippewas of the Thames First Nation to appeal the decision of the NEB that adequate consultation had taken place. The SCC determined that the NEB process had triggered the duty to consult, and that the duty can be fulfilled by a regulatory agency if it has the statutory power. In the end, the SCC found the duty to consult had been discharged by the NEB process, even though the Crown had not told the Chippewas of the Thames First Nation beforehand that it was intending to rely on the NEB process as adequate consultation. The Court determined that the Chippewas of the Thames First Nation had opportunities to participate in the process, and did participate.


Chief Justice of Canada Beverly McLachlin is Retiring

I’ll remember where I was when I heard the news. One of the longest-serving top justices, and the first-ever woman Chief Justice of Canada is retiring in December.

McLachlin CJC was first appointed to the Supreme Court in 1989 and became the Chief Justice in 2000. She was known for seeking unanimity from the Court on important issues, and was credited with decreasing the number of separate written judgments in a case – much to the thanks of law students across the country. She has observed and overseen enormous shifts in Canadian policy and law during her time on the bench. For example, she was the only dissenting judge in Rodriguez, and her position became the consensus in Carter.

Her presence on the Court will be sorely missed. Who will fill that legal hole in our hearts? …#teamabella #wishfulthinking?


TWU Interveners Debacle

On what was hoped to be a typical Thursday at the SCC, Wagner J granted intervener status to 9 different groups in the TWU case to be heard this fall. None of those groups or organizations were LGBTQ+ groups. Backlash immediately followed. Four days later, McLachlin CJC varied Wagner J’s decision and granted intervener status to all groups who had been denied intervention. Included were not only LGBTQ+ groups, but also faith-based organizations. The move was seen as an attempt to include the groups who would advocate the side LGBTQ+ members, but would also maintain the Court’s impartiality by hearing groups such as the Seventh-day Adventist Church in Canada. In a further break with convention, the Court issued a press release which explained its actions. The SCC does not normally release reasons for granting or not granting intervener status.

If there is this much hullabaloo before the case is even heard or decided, I would set a news alert for this fall and spring when sparks will surely fly at the SCC.

Liz Guilbault is a 2L, and Co-Editor in Chief of Juris Diction.

[1] R v Antic, 2017 SCC 27 at para 67.

[2] Douez v Facebook, Inc, 2017 SCC 33 at para 4.

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