System of Precedents and Appeals
The Supreme Court of Canada is the highest appeals body in Canada’s judicial system. It is the final arbiter of law in a court system based primarily on common law (using judicial precedent) and on respect for the rule of stare decisis — the notion that courts of appeal may modify or overturn lower court decisions, to ensure there is uniform application of the law. The judgments of appeal courts — called appellate decisions — are binding in the future on lower courts. This principle of upholding prior judgments lies at the heart of the judicial system.
1867–1875: Creation of the Court
The Supreme Court did not come into being until nearly a decade after Confederation. The British North America Act, 1867, the country's founding constitutional statute, included a provision for Parliament to establish a “General Court of Appeal for Canada.” However, the idea caused sharp debate among Canadian politicians.
Attempts by the Conservative government of Prime Minister John A. Macdonald in 1869 and 1870 to set up a general court of appeal were opposed by many Liberal and Conservative members of Parliament, some of whom feared that the new court might infringe on provincial rights. Many believed the Macdonald government would compromise the court’s impartiality by appointing judges who leaned in the direction of strong federal rights.
Finally, on 8 April 1875, the Liberal government of Prime Minister Alexander Mackenzie persuaded Parliament to pass a bill establishing the Supreme Court, arguing that it was needed in order to standardize Canadian law and to provide constitutional interpretations on issues that would affect the evolution of the new federation.
The court originally sat in the Railway Committee Room of the Parliament buildings, then in a series of other Ottawa locations, before finally moving into its current permanent quarters on Wellington Street in 1946.
After its creation, decisions of the Supreme Court could be appealed for final interpretation to the Judicial Committee of the Privy Council in Britain.
1875–1949: Judicial Committee of the Privy Council
The Supreme Court’s history can be divided into three eras. In the first, the court’s docket of significant constitutional cases was dominated by questions on the division of powers between Ottawa and the provinces. Many rulings were appealed to London, where the Judicial Committee of the Privy Council established a certain balance between federal and provincial legislative responsibilities. However, the Judicial Committee’s work was arguably complicated by its inexperience in dealing with matters concerning a federated state such as Canada, rather than the unitary British state.
Critics of Judicial Committee judgments argued that they favoured the provinces and amounted to legal sleight of hand. The Supreme Court also tended to interpret the British North America Act very literally, while the Judicial Committee tended to take socio-political considerations into account.
1949–82: Bill of Rights and Patriation
Appeals to the Judicial Committee were abolished for criminal cases in 1933 and for civil cases in 1949. Meanwhile, the Supreme Court faced increasingly divisive questions at this time on issues such as religious freedoms, police procedures and censorship. However, it had few tools, such as case law or legislative statutes, by which to guide its decisions.
In 1960, the government of Prime Minister John Diefenbaker attempted to solve this deficiency by enacting a Canadian Bill of Rights that challenged the judiciary to scrutinize legislation in terms of various human rights guarantees. The Supreme Court gave the Bill of Rights a broad interpretation in some early cases. However, the justices soon abandoned the promise of the Bill of Rights. Although it was legislation passed by Parliament, it lacked the supreme authority of being entrenched within the Constitution.
Legal scholars — including a young then-minister of justice, Pierre Trudeau — recognized that the court would only tailor laws or strike down legislation according to human rights that were constitutional in nature. As a result, in 1981, Prime Minister Trudeau’s government asked the Supreme Court to decide a momentous reference case, on whether Ottawa could act alone to amend the Constitution and patriate it from Britain. A 7–2 majority of justices held that Parliament did have the legal right to act unilaterally. But on a second question, a 6–3 majority held that unilateral federal action — without substantial provincial support for constitutional change — would nonetheless contravene a long-standing convention.
Through a series of negotiations and machinations with the provinces, the Constitution was patriated in due course and the Canadian Charter of Rights and Freedoms was added – entrenching certain human rights within the Constitution and forever changing the face of Canadian court rulings, or jurisprudence.
1982–present: Charter of Rights and Freedoms
The Charter of Rights and Freedoms came into force on 17 April 1982. From that moment, all eyes turned to cases decided in the lower courts, as they were gradually appealed up the judicial ladder to the Supreme Court.
The Supreme Court justices immediately warmed to the task of using the Charter — this powerful new judicial tool — to modernize criminal law and issue broad interpretations of human rights. The Charter’s entrenched guarantees of democratic rights, fundamental freedoms and guarantees against discriminatory conduct conferred dramatic new powers upon the court, changing both its role in the political process and public perceptions about it.
The Supreme Court bench is comprised of a chief justice and eight other judges who are appointed by the governor-in-council (governor general, advised by the federal cabinet). Members may be selected from among provincial superior court judges or from among lawyers who have belonged to a provincial bar for at least 10 years.
The Supreme Court Act stipulates that at least three of the judges must be appointed from Québec. The rationale for the Québec contingent is based largely on that province’s distinct Civil Code. Judges from other provinces tend to have no experience with it and are thus in a poor position to hear appeals of civil decisions from Québec. Traditionally, one of the Québec judges is from the Montréal legal bar and another is from the Québec City bar.
Three of the nine judges are invariably drawn from Ontario, one from the Atlantic region and two from the Western provinces. These geographic considerations have been adhered to for so long that they are deemed almost unbreakable. There is also a less rigid expectation that Atlantic Canada and the Prairies will, when possible, see their 'seat' on the court rotated between the provinces in those regions.
Most Supreme Court judges are elevated from a provincial court of appeal, where they have sat on appeals, learned the art of operating in a collegial environment and reached decisions in groups of three.
The spectrum of experience on the bench is an important consideration. There is seen to be a need for a blend of judges who possess expertise in criminal, civil and corporate law. Frequently, one or more judges were law professors prior to their appointment. In addition, there is usually one judge who is drawn directly from the ranks of practicing lawyers. This is thought to ensure that the everyday concerns and streetwise legal savvy of practicing lawyers is represented. It is also perceived as important to have at least one judge who practiced as a criminal lawyer, given that a significant proportion of appeals heard by the court are criminal in nature.
In 1970, Bora Laskin became the first Jewish judge appointed to the Supreme Court. Bertha Wilson, appointed in 1982, was the first woman. Several other women have followed, including Beverley McLachlin, who in 2000 became Canada’s first female chief justice. The court has yet to have an Indigenous member, or a justice drawn from a visible minority.
Governments typically try to ensure that appointees are bilingual. However, this is an aspiration more than an obligation; in certain regions, a requirement that candidates be bilingual would significantly narrow the field. The bilingualism issue was debated with vigour in 2011, after the appointment of Justice Michael Moldaver — an otherwise well-qualified, English-speaking jurist from Ontario. Many observers believe that bilingualism is quickly reaching a point where it is an indispensable requirement for a Supreme Court appointment.
Judges may not hold any other salaried position while sitting on the Supreme Court bench and are required to live within a short distance of Ottawa. They can remain on the bench until their mandatory retirement age of 75. Nonetheless, it has become commonplace for judges to retire earlier and return to private practice.
The Supreme Court was created in 1875 under the Supreme Court Act, a federal statute. However, the Constitution Act, 1982 essentially constitutionalized the court by providing that any changes to it could only be made through formal constitutional amendment. As of 1982, changes to the composition of the court require the consent of the Senate and House of Commons and the legislative assembly of each province. Other changes to the court require the consent of the Senate and House of Commons and the legislative assemblies of two-thirds of the provinces (seven provinces) with at least 50 per cent of the population of Canada.
Role of the Court
The court meets in January, April and October for sessions lasting three months. Five justices constitute a quorum (the minimum required to hear and decide cases), but for the majority of appeals — particularly constitutional cases — the justices sit as a full bench of nine.
Under the Supreme Court Act, the court not only pronounces judgment, but also advises the federal and provincial governments on important questions of law or fact concerning the interpretation of the Constitution. It also provides judgment and advice on the constitutionality or interpretation of federal or provincial legislation, or the powers of Parliament and the provincial legislatures. The most famous and perhaps most important of these opinions, in 1981, was the constitutional patriation decision. In 1998, the court also issued a decision on a crucially important case involving the right of a province to separate from Canada — the Reference Re. Secession of Québec.
The Supreme Court operates as a general court of appeal for criminal cases. In theory any citizen may come before the Supreme Court to plead his or her own case, but such instances are rare. In criminal cases, the court will hear appeals if an acquittal (a not-guilty verdict) has been set aside or if there has been a dissenting judgment in a provincial court of appeal on a question of law. A guilty verdict in a case of first-degree murder may automatically be appealed to the Supreme Court. In other criminal matters, if the court first grants leave to appeal, it may also hear appeals on questions of law arising from summary convictions or indictable offences.
In civil cases, appeals may only be presented with the prior permission of the court (known as the granting of leave to appeal). Permission is granted when the court believes that the case raises a question of public importance, or an important issue of law, or of mixed law and fact that ought to be decided by the court in the national interest.
The court hears about 70-90 appeals each year. They are selected from amongst hundreds of applications. Leave applications are considered by groups of three justices under an elaborate process that allows for individual justices to advocate for the hearing of an appeal should they elect to signal their interest.
Oral and Written Decisions
In roughly one out of four cases, the court gives its decision orally from the bench, immediately upon the completion of legal arguments. More commonly the court reserves decision, delivering it in written form, on average six months later. Written decisions provide critical guidance to lower courts and counsel by explaining the court’s reasoning. The reasoning may expand or narrow existing law, resulting in precedents that lower courts are bound to follow.
In cases where the Supreme Court opts to render a written decision, the justices go into conference after hearing legal arguments in order to compare their initial opinions. An individual justice is chosen by the chief justice to draft majority reasons. Should one or more justices voice a dissenting view at conference, a set of dissenting (or minority) reasons will be drafted and circulated. This opinion will ultimately be published alongside the majority opinion. Dissents are considered important in that they reveal tendencies at work within the court. They may also provide a template for future decisions if the court is called upon to re-examine similar points or principles.
Rules of procedure ensure that the parties (the opposing sides in a particular case) provide the court with a dossier, or written record, of everything that happened in the court of first instance (the trial court) and in appeal (the provincial or federal court of appeal), including all transcripts and main procedural documents. As well, parties must present a factum containing a summary of the case facts, the points in dispute, the reasons the case is being pursued, and their conclusions.
Court and Constitution
The controversial question of whether courts must interpret the law and the Constitution in a literal sense, or whether they must consider as well the social, political and economic context, became critically important after the Charter of Rights and Freedoms came into being in 1982. The Charter would become very much what the Supreme Court chose to make it. In so doing, the new role of the court, with its social and political dimensions, has significantly altered the way Canadians think of it.
As a result, reforming the method of appointing justices and the composition and methodology of the court is a topic of ongoing importance. The court is expected to attempt to reflect the dominant characteristics of Canadian society, such as regionalism, dualism and multiculturalism.
The drafters of the Charter tried to appease concerns about the courts having absolute power (via interpretations of the Charter) by including a “notwithstanding clause” in the Charter that allows a provincial legislature or Parliament to override a court decision, and reinstate an impugned law or regulation seen as contrary to certain sections of the Charter.
In practice, the notwithstanding clause (section 33 of the Charter) has been used sparingly. The most prominent example was its blanket application by Québec in the 1980s to exempt its laws from Charter scrutiny. This was in keeping with the province’s protest against the manner in which the Constitution was patriated, without the Québec government's consent. Any use of the clause requires it to be renewed after five years. Québec ceased its renewal of the clause after several years, bringing it into line with the rest of the country.
Debate over Judicial Activism
The limits of judicial power have been fiercely debated in the United States for generations. In Canada, there was little trace of this debate before the era of the Charter of Rights and Freedoms. The Canadian judiciary’s low profile meant that, for the most part, it was not subjected to close scrutiny and criticism. Judges were viewed as impartial arbiters who left their personal opinions behind them upon being appointed, and simply interpreted the law based on past precedent.
However, as judges began to strike down laws on the basis that they violated rights guaranteed in the Charter, a fight was launched against so-called “judicial activism.” The attack was led by the Reform Party of Canada, by the National Post newspaper and other news outlets inclined toward conservative values, by right-wing advocacy groups such as the Fraser Institute, and by a coterie of legal academics located primarily at the University of Calgary.
The activism dispute roiled through the 1990s, as the Supreme Court issued one decision after another that modified or eliminated unconstitutional laws. On the court itself, so-called activist judges — such as Chief Justice Antonio Lamer and justices Bertha Wilson and Louise Arbour — tangled with conservative justices such as William McIntyre and Gérard La Forest. Meanwhile, a faction known as the “Gang of Five” (justices Lamer, John Sopinka, Jack Major, Peter Cory and Frank Iacobucci) arose and used the Charter to reform key areas of criminal law.
Critics claimed that judges had no business striking down or altering laws passed by elected political representatives. Particular tensions revolved around whether courts could force governments to pay monetary awards and legal costs to the apparent victims of a Charter violation, as well as whether judges could order governments to take proactive, potentially costly measures to remedy a Charter breach. Opposition to activist judging reached its full height during Prime Minister Stephen Harper’s nine-year Conservative government.
Opponents of judicial activism urged governments to use the notwithstanding clause (section 33 of the Charter) to reinstate legislation that had been struck down. However, these attempts were notably unsuccessful, perhaps because of public surveys revealing the popularity of the Charter. For example, a 1999 study by the Institute for Research on Public Policy found that roughly 60 per cent of Canadians preferred the courts having the final say on whether a law violates the Charter. Only 30 per cent said they would prefer legislatures to have the final say.
Since the appointment of Beverley McLachlin as chief justice in 2000, activist decision-making is seen to have waned and given way to a more cautious, deferential court. This approach was consolidated as Harper appointed eight members of the Supreme Court bench, most of whom were not inclined toward activism.
How Judges Are Appointed
For most of the Supreme Court’s existence, the process of appointing its judges has been enveloped in mystery, a reality that raises scant interest outside of academic circles. When a Supreme Court judge retired or was appointed, the event rated barely a mention in the news media. New judges were quietly selected by the federal government based on the private considerations of the prime minister, the minister of justice and the federal cabinet. The sole criteria that appeared to play a consistent role in appointments were geographical considerations and whether — as many legal academics believed — candidates leaned toward the primacy of federal over provincial interests in division of powers disputes.
Beginning in 1982, the Charter of Rights and Freedoms produced a radical change in media coverage and political interest. The appointment process attracted far closer scrutiny and was, accordingly, fraught with controversy. In the new millennium, the process has been adjusted and readjusted several times in response to demands that it be both more transparent, and that candidates be subject to some form of public screening.
The backgrounds, ideological leanings and gender of candidates are now the subject of intense debate. Lobby groups issue public pronouncements in attempts to exert influence on the appointment process. This surge of interest is generally perceived as being a healthy development, given the immense significance of the cases that routinely reach the court. At the same time, some observers fear that as appointments become more politicized, governments will cater to their political supporters by appointing justices who share their ideological perspective on important issues of the day.
Reforms to Appointment Process
As agitation grew in the 1990s for a more transparent appointment process, including some form of public review of candidates, political leaders realized the status quo had to change. In 2005 under Prime Minister Paul Martin, a committee (including MPs from the main political parties and a retired judge, among others) was struck to compile a short list of strong candidates to fill a Supreme Court vacancy. The prime minister and minister of Justice agreed to select a name from the list and announce a candidate.
In 2006, Prime Minister Stephen Harper introduced what was, in effect, a genteel get-to-know-you session between a Supreme Court nominee and a parliamentary committee. These sessions now feature respectful questions from MPs and generally bland responses from candidates. The move was made in hopes of appeasing critics on both extremes — those who wished to see Canada adopt a US-style confirmation process that would expose candidates to partisan scrutiny; and those who feared that a partisan session could become inflamed and personally embarrassing to candidates.
The appointment process remains a work in progress. It is often marked by lengthy delays and tinkering. On one occasion, the public screening of a candidate was ignored altogether. In that instance, Judge Thomas Cromwell was appointed by Stephen Harper, in December 2008, without a Parliamentary question-and-answer session, because Harper felt the court had to be returned to its full complement of justices as quickly as possible.
Marc Nadon Controversy
In 2013, an unprecedented dispute erupted over an attempt by Harper to appoint Marc Nadon, a Federal Court of Appeal judge, to a Supreme Court vacancy for a Québec seat. Nadon’s name had been on a list prepared by an all-party committee of MPs. However, soon after Harper announced him as the chosen candidate, complaints surfaced that Nadon did not qualify as being from Québec. Justice Minister Peter MacKay said that Nadon had been selected by way of a “non-partisan, transparent and accountable selection process.” However, critics noted that a majority government like Harper’s could effectively select its preferred candidate by virtue of holding a majority on the committee.
As the affair flared, it emerged that Chief Justice Beverley McLachlin had contacted the Minister of Justice and the Prime Minister’s Office to make sure the government was aware that Nadon might not fit the legal criteria set for Québec appointees to the Supreme Court. Harper later accused the Chief Justice of acting improperly. In response, McLachlin issued a statement saying that she merely wished to ensure the government was aware of the eligibility issue. She said she had not expressed any opinion on the merits of the issue.
A number of powerful legal figures came to McLachlin’s defence, including Canadian Bar Association president Fred Headon, who expressed concern that Harper’s comments about the Chief Justice could erode public confidence in the Supreme Court. Headon called on Harper to publicly clarify that McLachlin had acted appropriately.
Harper ignored the critics, and went ahead with Nadon’s nomination. But before Nadon could join the court, a Toronto lawyer, Rocco Galati, launched a court challenge to the appointment. The federal government then asked the Supreme Court to rule on Nadon’s eligibility. Its decision concluded by a 6–1 majority that Nadon did not meet the legislated requirement that appointments for the three Québec seats on the bench be either sitting judges on Québec’s Court of Appeal or Superior Court, or current members of the Québec legal bar. As a Federal Court of Appeal judge, Nadon was ineligible.
Chief Justices of the Charter Era
The mood, outward appearance and internal dynamics of the Supreme Court are informed to a great extent by the persona and priorities of its chief justice. The three chief justices of the court’s Charter of Rights and Freedoms era have each had a pervasive and entirely distinct influence on jurisprudence and the benches they led.
Chief Justice Brian Dickson, a veteran who lost a leg in the Second World War, was a stolid jurist from the Prairies appointed to the court on 26 March 1973. He became chief justice on 18 April 1984. Dickson was receptive to a broad, liberal interpretation of the Charterand felt a keen need to develop building blocks for Charter interpretation that could be used in generations to come.
Austere and dignified, Dickson was a natural writer who penned some of the court’s seminal, early Charter decisions. His judicial writing was marked by compassion and he was notably sensitive to gender discrimination and women’s equality. Speaking to a University of Toronto convocation gathering in 1986, Dickson summed up his belief: “For a judge to reach decisions which comport with justice and fairness, he or she must be guided by an ever-present awareness and concern for the plight of others and the human condition.”
Dickson’s successor, Antonio Lamer, became chief justice in 1990. Lamer had a criminal law background and an unabashed orientation towards affirming the rights of the criminally accused. A long-time member of the Montréal defence bar, Lamer went on to head the Law Reform Commission of Canada, a body that regularly recommended changes to sweeping areas of the law. Appointed to the Supreme Court in 1980, Lamer was instrumental in ushering in the sort of reforms he had advocated while at the Law Reform Commission.
Candid with the press and public, Lamer openly attacked critics of the court for, as he saw it, eroding confidence in the judicial branch. He took the position that Parliament had enacted the Charter with full knowledge that judges would interpret fundamental rights as best they could. Critics recoiled from what they perceived as Lamer’s antagonism, adding fuel to a growing backlash against Charter review.
Under Bora Laskin (chief justice 1973–84) and Dickson, the court had been relatively unified. However, it was increasingly fractured in the Lamer era. Not only did dissenting reasons become commonplace, but judges in the majority often wrote their own concurrences that reached a common conclusion via different legal reasoning. These concurrences were seen to confuse and detract from the authority of a single, majority decision.
Lamer retired in January 2000. It later emerged that a delegation of judges had pressed him to consider retirement, after Lamer began to lose his grip and influence on the fractious bench.
Beverley McLachlin took over in 2000, determined to return a sense of orderly efficiency and common purpose to the court. McLachlin adapted quickly to the rigours of heading a highly independent bench of nine judges, while at the same time chairing the Canadian Judicial Council, a powerful body composed of the top judges on every federally appointed court across the country. The first woman to hold the office of chief justice, McLachlin also became Canada’s longest-serving chief justice in 2013.
McLachlin had risen rapidly through the British Columbia court system after graduating from the University of Alberta law school. In 1989, she was appointed to the Supreme Court of Canada. Cautious, logical and strategic, she espouses a belief that judges ought to respect the role of Parliament. Her pragmatic approach straddles the midline between activist decision-making and non-intervention. In a speech to the Canadian Bar Association in 1998, she summed up: "Parliament, with its greater access to opinion, to fact-finding, to information, is the best and most appropriate place for policy decisions to be made.”
McLachlin takes seriously her educative role. She frequently delivers speeches in all manner of venues, explaining the checks and balances at play within the justice system. As a jurist, McLachlin leans toward upholding free speech and free expression and to expanding and safeguarding equality rights. A superb administrator, she has been largely successful in her goal of having the court speak with a unified voice. Controversy that surrounded the court in the 1990s has gradually dwindled, as has the court’s profile, as fewer contentious social issues make their way onto its docket.
Notable Judges in the Charter Era
Bertha Wilson (Supreme Court: 1982–91)
Born in Scotland, Bertha Wilson was the first woman appointed to the Supreme Court. Wilson was elevated from the Ontario Court of Appeal, where she had also broken the gender barrier. She was destined to play an integral role in the development of equality rights and Charter jurisprudence. Her reasons in the abortion case R v. Morgentaler, for example, spoke strongly to the right of a woman to exert control over her body. She also advocated for the plight of battered women in the 1990 cases of R v. Lavallee.
A standard-bearer for feminists and women making their way in a predominantly male legal profession, Wilson delivered a widely quoted speech in 1990 titled: “Will Women Judges Really Make a Difference?” Her answer to the question was a resounding ‘yes.’Wilson retired in 1991 and died in 2007.
Claire L'Heureux-Dubé (1987–2002)
Appointed from the Québec Court of Appeal, Claire L'Heureux-Dubé was a likeable extrovert with a reputation for outspoken support of women’s and children’s rights. L’Heureux-Dubé’s core belief was that the law ought to reflect compassion for the oppressed and vulnerable. A colourful character on a court where justices had always worked hard to conceal their personalities, she had a strong dissenting voice and exerted substantial influence on the development of equality rights and discrimination law under the Charter. Irrepressibly sociable, opinionated and ready for a debate, L’Heureux-Dubé was a lightning rod for conservative discontent. She was also a tireless worker who frequently put in 18-hour days. She wrote important majority decisions on immigration (Baker v. Canada; Minister of Citizenship and Immigration) and family law (Moge v. Moge). She co-authored a dissent with Justice Wilson in a 1990 case that said it was wrong to outlaw communicating for the purposes of prostitution when prostitution was itself legal. Almost 20 years later, the gist of their position formed the majority perspective in a landmark decision that struck down the prostitution laws (R v. Bedford). L’Heureux-Dubé ultimately produced 252 opinions, almost 40 per cent of them in dissent. She retired in 2002, intensely popular with Crown counsel, victims and feminists.
Frank Iacobucci (1991–2004)
A former federal deputy minister of justice, prominent legal academic, and at one time, chief justice of the Federal Court of Canada, Frank Iacobucci was appointed when the court was engaged in intensive, early interpretations of the Charter. He became a member of the so-called Gang of Five that held sway in modernizing the rights of the criminally accused. Personable and conciliatory, Iacobucci was credited for being a mediator between judicial factions. He also played the role of being a key swing vote when the court was divided. Iacobucci was perceived as a strong candidate to replace Chief Justice Antonio Lamer when he retired. Instead, Beverley McLachlin was appointed to the post and Iacobucci retired soon afterward. He would go on to become interim president of the University of Toronto and a commissioner on several high-profile public inquiries.
Louise Arbour (1999–2004)
Brought up by a low-income, single mother in Montréal, Louise Arbour spoke barely a word of English when she took a law clerk’s job at the Supreme Court of Canada. She rose quickly through academic and then judicial ranks. At the time of her appointment to the Supreme Court, she had been chief prosecutor of the United Nations war crimes tribunals for Rwanda and the former Yugoslavia. Arbour’s return to Canada was widely perceived as a sign of how vital the Supreme Court had become in the post-Charter era.
With strong expertise in criminal law and human rights, Arbour found herself in a minority in some of her more ambitious attempts to liberalize the law in areas such as decriminalizing marijuana and protecting the economically vulnerable. However, Arbour also authored many majority judgments on sentencing, extradition law, administrative law and the Charter. The decision to resign from the court after a relatively short tenure came as a surprise and was interpreted by many as an act of frustration over the court having turned away from its robust expansion of Charter values. Arbour returned to the international scene after her resignation, becoming United Nations High Commissioner for Human Rights from 2004 to 2008.
Rosalie Abella (2004 – )
An avowed human rights activist and Charter enthusiast, Abella’s appointment delighted those of like mind, but was harshly denigrated by those who had a distaste for the power of judges to overturn legislative priorities. A child of the Holocaust, Abella was born in a German displaced persons camp in 1946, to parents who survived a Nazi concentration camp. She was appointed to the Ontario Family Court at the age of 29, becoming the youngest judge in Canadian history. Abella later became chair of the Ontario Law Reform Commission and chair of the Ontario Labour Relations Board. On the Supreme Court bench, Abella used her expertise in labour law, matrimonial law and human rights laws to write many leading decisions. She steered away from her previous high profile in the media, adopting the role of a progressive, influential member of the court.
Selection of Major Charter Decisions
R v. Oakes, 1986. Created a template for assessing Charter of Rights and Freedoms challenges that focused on whether legislation breaching a Charter right can be saved by virtue of it being a “reasonable limit” under the first section of the Charter. The Oakes legal analysis centres on whether the law constitutes a proportionate legislative response to a substantial goal, and whether it breaches a constitutional right as little as possible.
R v. Morgentaler, 1988. Struck down regulatory impediments to obtaining an abortion.
R v. Askov, 1990. Set limits on acceptable delays in a criminal prosecution. Tens of thousands of charges were dropped as a consequence of the decision.
R v. Swain, 1991. Broadened the rights of the mentally ill to be found not criminally responsible, and led to them having the right to regular review of their detention in psychiatric facilities.
R v. Stinchcombe, 1991. Mandated that police and prosecutors must disclose all evidence that could have a bearing on the guilt or innocence of an accused person.
R v. Zundel, 1992. Struck down a provision of the Criminal Code prohibiting the spreading of ‘false news’ capable of leading to social or racial unrest.
RJR-MacDonald, 1995. Found that a federal law banning tobacco advertising was an unconstitutional infringement on free speech.
R v. Stillman, 1997. Set rules for allowing the exclusion of evidence obtained by police in violation of Charter guarantees.
M v. H, 1999. Found that legislation excluding same-sex couples from the definition of common law spouse under the Ontario Family Law Act was unconstitutional.
R v. Mills, 1999. Approved protections for sexual assault complainants who did not want their third-party records to be accessible to defendants. The law at issue was essentially a parliamentary re-creation of one the court had earlier struck down. By giving way to Parliament’s assertion of will, the Mills decision symbolized the fading of an era of robust, frequently contentious, Charter jurisprudence.
R v. Malmo-Levine, 2003. Laws criminalizing the possession of marijuana were left intact.
Gosselin v. Québec, 2002. The court refused to provide a right to state-funded social assistance.
R v. Grant, 2009 and R v. Harrison, 2009. Re-crafted criteria for the exclusion of evidence tainted by state error or misconduct.
R v. J.A., 2011. Leading authority on what constitutes legal consent to sexual activity.
R v. Ipeelee, 2012. Strongly reinforced distinct sentencing provisions that apply to Indigenous defendants.
R v. Nur, 2015. Struck down a mandatory minimum sentence as being grossly disproportionate as it would apply to other offenders.
R v. Jordan, 2016. Reinforced the court’s 1990 decision in R v. Askov, by setting strict limits for trial delays beyond which a prosecution becomes unconstitutional.