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Supreme Court’s fall docket leans to public policy matters

Senate reform case promises to be a legal and political blockbuster

By Cristin Schmitz

September 27 2013 issue

Professor Carissima Mathen, seen in the Gowlings Moot Court at the University of Ottawa, says a couple of the cases the SCC will hear in the fall session challenge the federal government’s ‘long-standing law-and-order agenda.’ [Photo by Roy Grogan for The Lawyers Weekly]
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Landmark cases on aboriginal title, labour rights, security certificates and Senate reform dominate the Supreme Court’s fall session.

The top court will hear 23 appeals from Oct. 7 to Dec. 13, but its docket contains few practice-oriented civil appeals in areas such as commercial or tort law.

Instead, the nine judges will focus on a handful of momentous public law appeals, as well a mix of civil and criminal cases which also mostly raise public policy questions.

The Harper government’s historic Senate Reference to determine such important questions as whether Parliament can abolish the upper chamber without unanimous provincial consent, and whether it can unilaterally impose term limits on senators, will be argued over three days, from Nov. 12 to 14.

The eventual ruling will likely be a legal and political blockbuster. “There is virtually no case law on the [constitutional] amending formula, so I expect the court to go back to first principles, and provide some guidance for future constitutional reform,” said University of Ottawa law professor Carissima Mathen.

An appeal of particular note to the legal profession is McCormick v. Fasken Martineau Dumoulin LLP, to be argued Dec. 13. The B.C case will determine whether the mandatory retirement of equity law partners runs afoul of the ban against age discrimination in provincial human rights statutes.
The Supreme Court will decide whether law firms can continue their traditional succession arrangements of requiring equity partners to retire at a certain age, after transitioning their clients and files to younger lawyers.

Former Fasken equity partner Michael McCormick, 68, who spent his whole career at the firm’s Vancouver office, is challenging the agreement he signed which requires all equity partners to retire by the end of the year in which they turn 65 (at the discretion of the managing partner, equity partners may stay at the firm as employees, or as a non-equity partners).

McCormick wants to overturn last year’s B.C. Court of Appeal ruling that Fasken was not his “employer” for the purposes of the age discrimination ban in s. 13(1) of British Columbia’s Human Rights Code.

If the court accepts that human rights guarantees do protect equity partners, the impact could be far-reaching. Partnerships in other areas, such as accounting and engineering, could be affected. As well, partnerships in businesses and the professions could face human rights complaints alleging discrimination on the basis of factors other than age, such as sex or family status. (For example, an equity partner could complain that a law firm’s compensation committee discriminated against her — based on her pregnancy and child care responsibilities — by paying her less).

“I think it’s pretty clear that any professional firm that’s organized along partnership lines could be affected by this decision, depending on what their partnership arrangements are,” said Fasken’s counsel, Irwin Nathanson, of Vancouver’s Nathanson, Schachter & Thompson.

The court will also grapple with interesting criminal law appeals, noted Mathen.

“A couple of the cases directly challenge the [federal] government’s long-standing law-and-order agenda,” she said. An example is A. G. Canada v. Whaling, a B.C. appeal to be argued Oct. 15 which asks whether Ottawa’s repeal of early parole eligibility for those already sentenced offends the double jeopardy rule.

Ontario faces a Charter challenge to the practice of using jails to warehouse acutely mentally ill accused until scarce forensic beds can be freed up in psychiatric facilities. Conception v. R., to be argued Oct. 17, asks whether the Charter rights of in-custody accused found mentally unfit to stand trial, and who are ordered by a trial judge to be treated “forthwith,” are violated when their treatment is delayed, and they are held in jail (often in segregated cells) because psychiatric facilities decline to take them due to insufficient resources.

On Nov. 8, the Supreme Court will revisit the sometimes thorny legal concept of “consent” in sexual assault prosecutions in the Nova Scotia case of Hutchinson v. R. Unbeknownst to his then girlfriend, the accused poked holes in the condoms they used for birth control, with the result that she became pregnant (she later had an abortion). He was convicted of sexual assault because her consent was vitiated as she had not agreed to unprotected sex. He argues she freely and voluntarily consented to sex and that his deception over the condoms, however reprehensible, was not enough to vitiate her consent.

“The Hutchinson case is a fascinating follow-up to the Supreme Court’s 2012 Mabior ruling on failing to disclose HIV,” Mathen says. “In considering what other kinds of deception can vitiate consent, the court will once again confront the fine line between criminal acts and merely reprehensible ones.”

There are 10 interveners in the security certificate case of Minister of Citizenship and Immigration v. Harkat, including the Canadian Bar Association, and the Canadian Association of Refugee Lawyers.

Based considerably on secret evidence, Ottawa contends Algerian Mohamed Harkat is inadmissible to Canada as a threat to national security due to his participation in terrorism as part of the al-Qaeda network — which Harkat denies. The Federal Court of Appeal overturned a lower court’s determination that the security certificate was reasonable.

In a two-day Crown appeal — which includes a rare in-camera sitting for the judges on Oct. 11 — Harkat seeks to strike down the new security certificate regime, including restrictions on disclosure and communications. The 2008 amendments to the Immigration and Refugee Protection Act added special advocates to the process. The court is asked to determine various evidentiary, procedural and substantive questions, including whether Canadian Security Intelligence Service covert informants are subject to a class privilege; whether special advocates should be able to interview/cross-examine CSIS covert sources; and what is the proper remedy for CSIS’s destruction of original wiretap recordings on which summaries of conversations entered into evidence are based.

On Nov. 4 and 5, the court will successively hear argument on two major appeals involving the Charter’s s. 2(d) freedom of association. In Barnard v. A.G. Canada, a Canada Revenue Agency worker who has declined to join the union which bargains for her and more than 200,000 other federal public servants argues that the provision by her employer to the Professional Institute of the Public Service of Canada of her home address and home phone number, without her consent, violates her right to privacy as well as her constitutional freedom not to associate.
In Mounted Police Association of Ontario. v. A.G. Canada, two appellant employee-formed associations of RCMP members ask whether freedom of association entitles their members to choose an association independent of the RCMP’s internal Staff Relations Representative Program. The judges are also asked whether the Charter protects collective bargaining only if the applicant demonstrates the need for it.

Nineteen interveners are participating in William v. British Columbia. To be argued Nov. 7, the groundbreaking case on aboriginal title is likely to guide courts on how to identify “definite tracts of land” to which aboriginal title applies. Another critical issue raised is whether aboriginal title can be granted only for specific sites for which pre-sovereignty occupation has been established, or for larger tracts of land that a First Nation exclusively controlled at sovereignty and systematically exploited, season after season, according to its traditional pattern of land use.

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