This year’s cases will reopen decades-old debates about everything from sexual-assault trials to police searches and the right to counsel. Here’s what to look for.

Canada’s highest court is being asked this fall to revisit and expand on – or scale back – some of its most controversial precedents from the early years of the Charter of Rights and Freedoms, which turns 40 next April.

Highlighting the fall session at the Supreme Court of Canada are criminal-justice cases that touch on broad themes including the meaning of personal responsibility when an extremely intoxicated person commits a crime and how to improve the treatment of sexual-assault complainants while still ensuring a fair trial for an accused.

These cases evoke an earlier era, when Charter rulings were greeted at times with outrage, when the Reform Party and its right-leaning successors (including the Conservative Party) denounced judicial activism, and Parliament leapt into the fray with new legislation.

In a case this October, for instance, a young man who stabbed his father to death while high on magic mushrooms is asking the Supreme Court to allow him to use the defence of extreme intoxication akin to automatism. In 1994, the court ruled that, based on the Charter, the courts must consider such a defence, where appropriate. But Parliament quickly took that option away. Now, the federal government and several provincial attorneys-general are asking the court not to restore it.

The cases on the fall docket show that the Charter – which took effect on April 17, 1982 – is far from becoming a settled, dusty and irrelevant document. Although the cases don’t specifically reflect issues arising from the COVID-19 pandemic, what governments may and may not do in limiting rights is at the heart of them. And new ground is still being broken, even as old ground is revisited.

Canadian constitutional law is a “living tree” or living document, says Toronto-based criminal defence lawyer Michael Lacy, a former president of the Criminal Lawyers’ Association. “As social norms change, as social understanding changes, the Charter jurisprudence evolves as well. You might think that certain constitutional principles get decided and then they’re fixed forever, but the law doesn’t work like that.”

The court has repeatedly shown a willingness to reconsider and reverse course in criminal law, on matters such as prostitution, assisted dying and extradition to face the death penalty. Similarly, court rulings on more day-to-day matters – for instance, what constitutes a legal police search – continue to evolve. “In my personal opinion, the Charter is probably the biggest consideration in criminal law today,” says Gerri Wiebe, president of the Manitoba Criminal Defence Lawyers Association.

Cases like the one on extreme intoxication highlight a Charter paradox: While the protection of basic rights continues to be hugely popular with Canadians, the Charter rulings themselves have at times produced outraged reactions.

“I think for Canadians, there is comfort and security in knowing that the Charter protects the rights of all of us from being violated by the government,” says Jamie Cameron, a professor emerita at Osgoode Hall Law School in Toronto.

But “it’s much less understood that a system of constitutional rights only really works when it protects those who are most at risk of being prosecuted or censored or oppressed by the government,” she adds. “That’s why so many cases are about criminal offenders, individuals with highly offensive views like hate-mongers, and those who belong to vulnerable communities.”

The importance of the Charter cases is underlined by the large numbers of intervenors – including women’s groups, criminal-defence associations and provincial attorneys-general – who will present arguments in many of them. On extreme intoxication, for instance, there are 11 intervenors. Their role is to highlight aspects of the social and legal context for the court, and to explain the possible consequences of striking down or upholding a law.

The Supreme Court chambers in May, 1981, when prime minister Pierre Trudeau and premiers were still hammering out the details of the Constitution and the Charter. HANDOUT

“The Charter considers society’s interests as a whole,” says Ms. Wiebe. “It considers the rights of the accused. It considers obligations of the state. And it tries to balance a whole bunch of different perspectives.” She says the involvement of so many intervenors shows the court is “hearing from all the affected parties – it’s not a two-party system.”

Rosel Kim, a staff lawyer at the Women’s Legal Education and Action Fund, which is intervening in two extreme-intoxication cases, says the court remains important for women’s aspirations of equality.

“We see Supreme Court cases as a vehicle through which legal rules and norms can be shaped, which have concrete impacts on people’s lives beyond the individuals who are direct parties. The cases are also an opportunity to shape broader social dialogues, spur legislative reform and strengthen social movements.”

Here are some highlights of the Supreme Court’s fall session.

THE RIGHT TO EXTREME INTOXICATION AS A DEFENCE

Cases this fall: R v Sullivan, R v Chan, Oct. 12; R v Brown, Nov. 9.

Earlier case: R v Daviault, 1994

Can intoxication so extreme it is akin to automatism be a defence to violent crime? What if the individual chose to become intoxicated? In 1994, the Supreme Court ruled 6-3 that alcohol-induced automatism can be such a defence. The ruling came in the case of Henri Daviault, a 73-year-old accused of sexually assaulting a 65-year-old woman in a wheelchair after drinking seven or eight bottles of beer and a bottle of brandy. The Canadian government soon passed a law barring the defence of self-induced intoxication akin to automatism in crimes of violence.

In the case of the young man who was high on magic mushrooms when he stabbed his father to death and wounded his father’s partner, the Ontario Court of Appeal said he had a Charter right to use the defence of extreme intoxication. It ruled 2-1 that the ban on that defence contravenes “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.”

The Ontario prosecution, on the other hand, stresses the voluntariness of excessive consumption of intoxicants.

The issue, says Prof. Cameron, “focuses attention on moral views about responsibility and blameworthiness.”

THE RIGHT TO USE PERSONAL E-MAILS FROM SEXUAL-ASSAULT COMPLAINANTS IN A DEFENCE

Current cases: R v J.J., R v A.S., Oct. 5-6

Earlier case: R v Seaboyer, 1991

When former CBC broadcaster Jian Ghomeshi was acquitted on sexual-assault charges in 2016, it was partly based on the strength of e-mails from complainants that were in his possession and used in cross-examination.

Following that high-profile acquittal, the Canadian government enacted a law in 2018 requiring accused persons who wish to use similar personal records in their defence to apply to a judge for permission before the trial begins, with complainants able to make arguments and retain legal counsel.

Defence lawyers say the law represents a seismic shift in criminal justice, forcing the accused to reveal their strategy before trial and putting constraints on cross-examination. The B.C. government says the law gives complainants greater confidence in the criminal-justice system, protects their privacy, and helps prevent the use of myths and stereotypes in trials.

The case comes three decades after the Supreme Court ruled 7-2 in R v Seaboyer, that a rape-shield law barring the use of sexual-history evidence in a trial (with some exceptions) could deprive an accused person of a fair trial. It was therefore unconstitutional. The majority decision was written by future chief justice Beverley McLachlin, who came under intense criticism from women’s groups for the ruling. The government redrafted that law to give judges more room to decide on legitimate exceptions.

THE RIGHT TO BE PROTECTED FROM POLICE SEARCHES IN THE HOME

Current case: R v Stairs, Nov. 2

Earlier case: R v Feeney, 1997

This fall’s case is about the police power to search a home after entering without a warrant in exceptional circumstances.

After receiving an eyewitness call about a man striking a woman, police in Oakville, Ont., announced themselves and then went into the residence through a side door. After finding the woman, her face bruised and swollen, and arresting Matthew Stairs, the officers looked around and found a container of crystal meth. The trial judge and the Ontario Court of Appeal, by a 2-1 margin, upheld Mr. Stairs’s conviction on a drug charge.

In documents filed at the Supreme Court, Mr. Stairs’s lawyers cite the court’s 1997 ruling in R v Feeney to argue that a home can only be searched during an arrest if necessary for safety reasons. (The officers in the Oakville case maintain they were looking around to ensure their safety, but that is in dispute.) The Crown wants more room for police to secure domestic-violence crime scenes and search for evidence.

In the Feeney case, the court decided by a 5-4 count to throw out a second-degree murder conviction in the death of 85-year-old Frank Boyle, who was beaten to death with an iron bar or similar object in rural B.C. Not long after Mr. Boyle’s body was found, tips led police to a trailer. An officer would testify at trial that he believed he had no grounds to make an arrest until he entered the trailer – after knocking and announcing himself – and discovered Mr. Feeney in a bloody shirt and shoes. The officer had no warrant, however, and without grounds to make the arrest, the court majority ruled, the officer had no authority to forcibly enter Mr. Feeney’s trailer. In the Charter era, “the privacy interest outweighs the interest of the police, and warrantless arrests in dwelling houses are prohibited,” the late justice John Sopinka wrote for the Supreme Court majority.

The new case this fall could establish how far privacy goes when police have already lawfully entered a home.

THE RIGHT TO TIMELY JUSTICE IN ADMINISTRATIVE LAW

Current case: Law Society of Society of Saskatchewan and Peter Abrametz, Nov. 8

Earlier case: R v Jordan, 2016

The current case gives the Supreme Court the opportunity to do for administrative justice what it did for criminal justice in Jordan: combat delay and attack complacency. In the 2016 case, the court ruled 5-4 to set down time limits for criminal proceedings, citing the Charter right to timely justice. The results of the ruling include dropped charges, major legislative changes and hundreds of millions of dollars in extra spending. Ultimately, though, backlogs started to clear (at least until the COVID-19 pandemic).

Administrative law involves hundreds of tribunals, including the discipline panels of law societies. Mr. Abrametz, a lawyer, told the Supreme Court in a filing that he had been “under the sword” of a law society proceeding for six years, over allegations that included enlisting his clients in a dishonest scheme. The Saskatchewan Court of Appeal found the delay unjust and stopped the proceedings against Mr. Abrametz. “Why should less be required of administrative decision-makers than courts?” the court wrote in a 3-0 decision.

THE RIGHT TO COUNSEL

Current case: R v Dussault, Dec. 3

Earlier case: R v Sinclair, 2010

A jury convicted Patrick Dussault of second-degree murder after a judge allowed an incriminating statement he made while detained at a police station to be used against him. But did police violate his Charter right to counsel? Mr. Dussault’s phone call to his lawyer had been interrupted; when the lawyer turned up at the station, police officers wouldn’t let him speak to his client. The Quebec Court of Appeal unanimously threw out the verdict and ordered a new trial, without the incriminating statement being used as evidence.

Back in 2010, Trent Sinclair, in police custody on a murder charge, asked to have his lawyer join him during an interrogation. Since he had already spoken to his lawyer twice over the phone, police denied his request. Mr. Sinclair ultimately made incriminating statements. A majority of the Supreme Court said that, unlike in the U.S., where the famous Miranda v Arizona ruling gives detainees the right to have a lawyer present during questioning, no such right exists in Canada.

In Mr. Dussault’s case this fall, the Criminal Lawyers’ Association – which has been granted intervenor status – argues in a filing: “The police cannot be the arbiters of when the solicitor-client communication has concluded; that is for the lawyer and their client to determine.”

THE RIGHT TO PROTECTION FROM ARBITRARY SEARCH

Current case: R v Sokha, Oct. 7

Earlier case: R v Grant, 2010

The current case stems from a case of mistaken arrest. After a man crashed his car into a stop sign in Calgary, an officer found a small bag containing a pill in the vehicle and arrested Tim Sokha. The pill, however, turned out to be a legal substance. But during the arrest, police searched both Mr. Sokha and his vehicle, and found fentanyl and a loaded handgun. Mr. Sokha was convicted, and a majority of the Alberta Court of Appeal upheld the conviction.

In the 2010 Grant case, several Toronto police officers stood in front of Donnohue Grant on a sidewalk near a school. Mr. Grant had been patting his pants and looking around nervously. Police asked him if he had anything he wanted to say, and Mr. Grant admitted to having a gun on him. The Supreme Court ruled that the officers had detained Mr. Grant arbitrarily and illegally under the Charter. But evidence illegally obtained can be used in a trial if a judge decides it would do less harm to the justice system’s reputation than keeping it out would. The Supreme Court allowed the evidence to be used in the Grant case, saying the police mistake was a reasonable one.

In the current case, Mr. Sokha’s lawyers argue: “Forgiving the police for unlawfully arresting a person for an imaginary offence risks corroding the integrity of our legal institutions.”

SEAN FINE
JUSTICE WRITER
The Globe and Mail, October 2, 2021