CANADA’S SUPREME COURT 

                                                   

This court is the top court in Canada. It hears from appeals of both federal and provincial Courts of Appeal along with appeals from military tribunals. Its decision is final.

 Early in its life, the Supreme Court was not truly “supreme” within the Canadian court system. When Parliament first created the Supreme Court, it did not abolish the traditional practice of appeals “to the foot of the throne” in the form of the Judicial Committee of the Privy Council (JCPC). The JCPC was a British body, staffed by respected judges and law lords, which advised the British monarch and served as the final court of appeal for the British Empire. Decisions of the Supreme Court could be appealed to and overturned by the JCPC. Moreover, if the litigants in a case agreed, it was possible for appeals to bypass the Supreme Court altogether, and go directly to the JCPC.

As a proportion of the Supreme Court’s total decisions, there were relatively few appeals to the JCPC, and they did not always result in an overturning of its decisions.  Nevertheless, the presence of the JCPC created a “captive court,” in which the Supreme Court was reluctant to display initiative or judicial leadership within the Canadian court system as a whole.

Partition of judicial authority, however, did not lead to immediate and radical changes in Canadian jurisprudence. Since the amendment was not retroactive, cases already before Canadian courts continued under the traditional system of appeals, with the JCPC deciding its last Canadian case in 1957. Moreover, the legal doctrine of precedence, in which older decisions should be followed in new cases, further constrained the Supreme Court’s ability to effect drastic change.

Over time, the Supreme Court has taken on the role of judicial leader to a fuller extent. This is particularly true in a relatively new area of constitutional law—the Canadian Charter of Rights and Freedoms. The Charter was added to the Canadian Constitution in 1982, and sets out the fundamental rights of individuals in Canada in relation to the state.

The Charter provides persons with certain fundamental freedoms (such as freedom of religion and consciousness, expression, and association), legal rights, democratic rights, and equality rights. The Supreme Court makes sure that those rights and freedoms are available to everyone in Canada irrespective of their nationality, residency and it even whether or not they are permanent citizens of Canada or visitors who are in Canada.

The entrenchment of the Charter is significant in that it enables the courts to review any government law or action that may run afoul of Charter rights. Moreover, it is up to the courts to interpret the meaning of Charter rights and their application to specific circumstances. In the context of the right to freedom of expression, for example, the courts are responsible for decide the meaning of key concepts, such as “freedom” and “expression,” as well as when it is or is not permissible for the state to violate this right. As such, the courts have become, at least potentially, the final word on a wide range of public policy issues, at both the federal and provincial/territorial levels.

Many years ago when I was practicing law, I represented a client who was fighting a traffic charge, In my argument before the justice of the peace, I said that the municipal law was contrary  to the edicts of Charter of Rights.  The JP agreed and dismissed the case against my client. Now the City of Toronto could have appealed that decision at the Divisional Court, the Court of Appeal and the Supreme Court of Canada. They chose not to and that particular law was changed after they heard radio stations claiming that my argument was correct.

Year later I was charged with a minor criminal offense.  The judge dismissed the charge. The office of the Attorney General appealed the judge’s decision and its appeal was heard in the Court of Appeal. The lawyer representing the office of the Attorney General approached me minutes before the hearing was to begin and said that the government agreed that I was right. He told the Court the same thing. The Court told us that they agreed with my argument and the government’s thoughts on that subject and told me and the government’s lawyer that my appeal was granted. 

I had hoped that I could have argued my case before the Supreme Court of Canada but since the government agreed with my argument as did the Court of Appeal, the matter never went to the Supreme Court of Canada.

One man did appear before the Supreme Court of Canada arguing that the Court of Appeal was wrong in its decision. The Supreme Court of Canada agreed with the man’s argument.

Judges of the court are made up of eight  judges and  the Chief Justice. Candidates must have either been a judge of a superior court or a lawyer for at least ten years in their province's bar. Appointments are made by the Governor General of Canada on advice of the Prime Minister. Two of trm were not judges before they sat on the Supreme Court.  Many non-judges sat in the Supreme Court of Canada.

In  an unanimous decision in June 2017, the Supreme Court of Canada stuck to its guns on a controversial ruling it issued the previous year that set strict timelines for criminal trials. Instead of backing down in the face of controversy, alarmist headlines and the demands of several provinces for more flexibility, the country’s top court said its new framework, under a 2016 ruling known as Jordan, now governs how judges should assess the Charter guarantee to a trial within a reasonable time.

One of the sad realities of Family Law practice is to realize that not only are some relationships dysfunctional or simply not viable, but some are downright abusive. Physical and emotional harassment and abuse is part of some failing relationships, unfortunately, and can prompt desperate behaviour on the part of the victim. This in turn gives rise to some complicated legal issues.

This was precisely the scenario with Nicole Ryan, a Nova Scotia teacher who had her controversial case heard on appeal to the Supreme Court of Canada.

After an R.C.M.P. sting operation Nicole had been arrested for hiring a hit-man to kill her abusive husband, Mark. He was a retired former soldier who had perpetrated various abusive acts against her, including throwing things at her, pushing her against a wall and squeezing her neck, repeatedly holding a gun to herhead, and threatening to kill her and their daughter by burning down the house around them. Once, he apparently drove them to a remote, forested area and told them he planned to bury their bodies there.

Nicole had been acquitted by several provincial courts on the basis that she had been motivated by the extreme duress she suffered in the circumstances.

On subsequent appeal to the Supreme Court of Canada, the court started by pointing out that “that trial judge had no difficulty in concluding that Mr. Ryan was a manipulative, controlling and abusive husband who sought to control the actions of the respondent, be they social, familial or marital.”

However, the Court nonetheless overturned Nicole’s acquittal, ruling that the lower courts had applied the law incorrectly. Canadian law allows for a defence of “self-defence”, but does not recognize “duress” as a justification for criminal behaviour. (Nicole had not argued “self-defence” at her provincial court trials). But the Supreme Court of Canada also took an additional step – which it termed “exceptional” – and ordered a halt to all current and future proceedings against her, essentially allowing her to go free and build a future without being hampered by a criminal record of any sort. It also extinguished the possibility that Nicole would have to face a new trial, which the court found would be “unfair.”

With its controversial judgment, the Supreme Court put an end to five years of trials and appeal proceedings. It also remarked that it was “disquieting” that the police had quickly arrested Nicole after the sting, yet had repeatedly failed to come to her assistance on at least nine separate occasions when she complained to police of her husband’s year-long “reign of terror over her.” (She also called victim’s services 11 times, and dialled “911” on one occasion). although she had committed the crime of trying to kill her abusive husband, because she really believed her husband woul kill her,  the proceedings against her were stayed which means that she wouldn’t be put on trial again.

This particular case is so interesting and informative, I will write that case in my blog in the near future.