This article summarizes Gowlings picks for the most important decisions from the Supreme Court of Canada in 2014.

Canada (Attorney General) v. Bedford: The Supreme Court of Canada unanimously struck down Canada’s laws prohibiting brothels, living on the avails of prostitution and communicating in public with clients as over-broad and grossly disproportionate. In the decision, the court clarified that, while Parliament has the power to regulate against nuisances, it may not do so at the cost of the health, safety and lives of prostitutes. The ruling was in response to a constitutional challenge by three women with sex trade experience: Terri-Jean Bedford, Amy Lebovitch and Valerie Scott.  The case is important in that it articulated a new test (now being referred to as the “Bedford test”) for infringement of section 7 and whether the deprivation of security of the person is in accordance with the principles of fundamental justice.  The Court stated that law must respect the values against arbitrariness (where there is no connection between the effect and the object of the law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective).1    2013 SCC 72

Reference re Supreme Court Act, ss. 5 and 6: The Court reviewed the eligibility requirements for the three Supreme Court seats reserved for Quebec. Justice Marc Nadon, a former member of the Quebec Bar, was elected to the SCC from the Federal Court of Appeal in the Fall of 2013. The appointment was challenged on the grounds that the eligibility requirements under ss. 5 and 6 of Supreme Court Act were not met. In order to be eligible to fill a Quebec seat, Justice Nadon had to either be a member of one of the superior courts of Quebec or a current member of the Quebec bar. To rectify this deficiency, Parliament amended s. 6 of the Supreme Court Act to allow former members of the Quebec Bar to be eligible. The majority of the SCC held that Parliament’s amendment to the Supreme Court Act was a change to the composition of the Court which is ultra vires the Parliament of Canada. A change of the composition of the Court must be accomplished via a constitutional amendment under the Constitution Act, 1982. The Supreme Court therefore concluded that Justice Nadon would not be eligible under the current legislation as he was not a member of the Quebec superior courts nor a current member of the bar of Quebec. 2014 SCC 21

Reference re Senate Reform: The Court was asked four specific questions regarding the legislative authority of Parliament to make amendments to provisions relating to Senators within the Constitution Act, 1867: (1) Can Parliament unilaterally set fixed terms for Senators? (2) Can Parliament unilaterally implement a framework for consultative elections for appointments to the Senate? (3) Can the requirements that a Senator own at least a $4,000 piece of land and have a net worth of at least $4,000 under ss. 23(3) and 23(4) of the Constitution Act, 1867 be repealed? (4) Does a constitutional amendment abolishing the Senate require unanimous consent or can it be achieved by a general amending procedure? Questions (1), (2), and (4) were all answered in the negative. The modification of senatorial tenure changes the fundamental nature of the Senate and falls within the rule of general application for constitutional change under s. 38 of the Constitution Act, 1982.2 Consultative elections would change the Constitution’s architecture by modifying the role of Senators creating a popular mandate inconsistent with the Senate’s role as a chamber of sober second thought. Finally, abolishment of the Senate could only be achieved by unanimous consent of Parliament and the provinces under s. 41(e) of the Constitution Act, 1982 as it would cause a fundamental change to Canada’s constitutional structure.Question (3) was answered in the affirmative but only for s. 23(4). Pursuant to s. 43 of the Constitution Act, 1982, an amendment to s. 23(3) requires a resolution of the legislative assembly of Québec.  2014 SCC 32

Bhasin v. HrynewThe Supreme Court of Canada unanimously recognized for the first time a “general organizing principle” of good faith in contractual relations and, as a manifestation of that principle, that there is a duty of honesty in contract performance.  This duty of honesty will apply even in the face of entire agreement clauses as it is an implied term of all contracts and, like unconscionability, cannot be displaced by such a clause. The Court did, however, allow for the possibility of modifying the duty of honest performance through express terms to that effect. Going forward, the difficulty will be in defining the scope of that duty and the principle of good faith underpinning it.  The implications of this decision are unclear and potentially wide-ranging. The scope of the duty of honest performance in practice is difficult to predict. The Court recognizes that “the precise content of honest performance will vary with context and the parties should be free in some contexts to relax the requirements of the doctrine so long as they respect its minimum core requirements”, although these “minimum requirements” are not identified and it is hard to say in what contexts the Court foresees parties relaxing the doctrine.  2014 SCC 71

Sattva Capital Corp v. Creston Moly Corp: In an important decision dealing with contracts and enforceability of arbitration clauses, the Supreme Court of Canada addressed three issues related to the proper interpretation of contracts. First, the Court described the proper approach to contract interpretation as a “practical, commonsense approach” incorporating an examination of the “factual matrix” with a view to understanding “the mutual and objective intentions of the parties as expressed in the words of the contract”. Second, contrary to the traditional common law rule, the Court held that construction of a contract is a matter of mixed fact and law. Finally, the Court explained that arbitrator’s decisions are to be reviewed on the reasonableness standard. 2014 SCC 53

Tsilhqot’in Nation v. British Columbia: The Tsilhqot’in decision marks the first time in Canadian law that a declaration of Aboriginal title has been made.  Prior cases had indicated that Aboriginal title as a legal concept existed, but no case had made an actual finding of Aboriginal title until now.  In response to the B.C. government’s approval of a private company’s plan to begin logging in an area in the interior of the province in 1989, members of the Tsilhqot’in Nation initiated an action seeking: the recognition of certain Aboriginal rights, a declaration of title over their traditional territory, and damages.   The Supreme Court held that the Tsilhqot’in Nation had established Aboriginal title over a large portion of the claim area and in so doing, the Court clarified the test for establishing Aboriginal title, and the implications of such a finding for Aboriginal, provincial and federal governments. The Court confirmed that whether the evidence in a particular case supports Aboriginal title is a question of fact to be determined by the trial judge, and held that the trial judge applied the proper test of “regular and exclusive use of the land.”  Reviewing its earlier decisions relating to Aboriginal title, the Supreme Court confirmed the rights included under Aboriginal title, including decision-making power over how the land will be used and economic benefits arising from the land.  The Court also clarified the restrictions that apply to Aboriginal title lands: they can be alienated only to the Crown and they cannot be encumbered in such a way that “would prevent future generations of the group from using and enjoying” the lands or see them “developed or misused in a way that would substantially deprive future generations of the benefit of the land.”    2014 SCC 44

Grassy Narrows First Nation v. Ontario (Natural Resources): In 1873, certain Aboriginal Nations negotiated and signed Treaty 3 in relation to an area of approximately 55,000 square miles located within what is now northwestern Ontario and southeastern Manitoba. The text of Treaty 3 contains a “harvesting clause” which provides for a right to harvest resources  throughout Treaty 3 territory, subject to the right of the “Government of the Dominion of Canada” to “take up” lands for “settlement, mining, lumbering or other purposes.” Further to the settlement of a boundary dispute between Ontario and Canada, the majority of  Treaty 3 territory fell within Ontario’s borders. Thereafter, the majority of Treaty 3 territory fell within Ontario’s borders.  In 2005, the Grassy Narrows First Nation started an action against Ontario and the holder of a permit to clear-cut timber in the Keewatin lands alleging that the forestry operations infringed its hunting and fishing rights under Treaty 3 and that only Canada (i.e. the federal government), not Ontario, had the jurisdiction to do so, and that Ontario required Canada’s consent.  The Supreme Court ruled that the province of Ontario has both the rights and the burdens under Treaty 3, including the right to “take up” lands under the treaty, so long as consultation and accommodation occurs and treaty-protected rights to hunt, fish and trap are preserved.  The Supreme Court held that while Canada negotiated and signed Treaty 3, the promises made by the Crown under Treaty 3 were “promises of the Crown, not those of Canada” and that after the transfer of beneficial title over the Keewatin lands to Ontario, Ontario’s constitutional authority over land dispositions and non-renewable resources also became subject to the obligations and promises Canada had made under Treaty 3. The taking up power must be exercised “in conformity with the honour of the Crown”, and is subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests, such as the duty to consult and accommodate.  Finally, the Court commented on an argument that had been raised that provinces were precluded by the constitutional doctrine of interjurisdictional immunity from justifiably infringing treaty rights.  The Supreme Court confirmed that provinces do have the constitutional authority to infringe Aboriginal and treaty rights, if they can meet the onerous justification test. 2014 SCC 48

R v. Spencer: This case dealt withreasonable expectations of privacy in a digital age, specifically in regards to internet privacy. The accused was linked to an Internet Protocol (IP) address which had downloaded and stored child pornography.  The police sought and obtained the accused’s subscriber information from the internet service provider (ISP) without judicial authorization, which the accused believed was a breach of section 8 privacy rights guaranteed by the Charter.  The Supreme Court of Canada determined that a reasonable expectation of privacy did exist and the search did violate Charter rights.  However, the important law enforcement purpose that coincides with this serious subject matter meant that the police conduct did not bring the administration of justice into disrepute.  Further, society has an interest in prosecuting these types of offences.  Balancing these factors, the Court upheld the admission of this evidence by the lower Courts.  2014 SCC 43

R v. Fearon: In another case dealing with reasonable expectations of privacy in the digital age, the Court had to consider the right of the police, upon arresting a suspect, to search the detainee’s cellphone.  In a 4-3 split decision, the Court stated that the police were entitled to search a cellphone found on a suspect, without the necessity of obtaining a warrant, if the search was reasonably necessary for one of the acceptable purposes (assisting police in identifying risks to public safety; locating firearms or stolen goods; identifying accomplices; locating and preserving evidence; preventing suspects from evading or resisting law enforcement; locating other perpetrators; and warning officers of possible impending danger), so long as the officers limited their search to home screen or recently accessed pages and took detailed notes of precisely what and why they searched.  It is important to note that the cellphone in this case was not locked or password protected.  2014 SCC 77

Kazemi Estate v. Islamic Republic of Iran: The Supreme Court confirmed that a foreign state and its functionaries cannot be sued in Canadian courts for acts of torture committed abroad.  Public officials and not just heads of state or government were found to fall under the SIA, asin this case, they were necessary instruments of the state. The Court found that the SIA contains an exhaustive list of exceptions for when the Act’s immunity will not apply, and even customary international norms, such as the prohibition against torture, could not change this list. Showing deference to Parliament to manage Canada’s foreign relations, the Court concluded that only Parliament could legislate to create an exception from immunity in instances of torture.  2014 SCC 62

Canada (Citizenship and Immigration) v. Harkat: Previous SCC decisions had found the security certificate regime under Canada’s Immigration and Refugee Protection Act unconstitutional and changes were implemented to the legislation as a result (see, e.g., Charkaoui v Canada (Citizenship and Immigration) 2007 SCC 9). The major change allowed a named person to be represented by a special advocate. The Court found that so long as the named person has reasonable disclosure of the case against him, and there is an ongoing effort to update throughout the proceedings, the security certificate can be upheld. The Court also maintained that the designated judge has broad discretion: to allow communication between the named person and the special advocate, to ensure reasonable disclosure to the named person and should be skeptical towards claims of national security. In this case the SCC deferred to the designated judge’s opinion and upheld the reasonableness of Harkat’s security certificate.  The case also addressed the special advocate asking for the right to cross examine the source of information that leads to the issuing of a certificate. The Court held that there is no legislative privilege that protects the identities of CSIS informants, though declared that Parliament can legislate such a privilege if it wishes.  2014 SCC 37

R v. Hart and  R v. Mack: In Hart, the Supreme Court of Canada introduced a novel rule of evidence whereby so-called “Mr. Big” confessions are presumptively inadmissible. A Mr. Big confession is  the result of a Canadian investigative technique used by police, whereby undercover investigators pose as members of a fictitious criminal organization. The suspect is offered an opportunity to advance in the organization. The suspect is introduced to the organizations’ boss (“Mr. Big”) who presses the suspect for details of the crime being investigated as proof of his criminal prowess. The presumption against admitting Mr. Big confessions may be rebutted by establishing, on the balance of probabilities, that the probative value of the evidence outweighs the prejudicial effect upon the accused. In applying the two pronged test, the court excluded the evidence of Hart’s confession on the grounds that it was unreliable. Hart lived in impoverished conditions and saw his participation in the organization as his only means out. The Court identified this as an overwhelming incentive to confess, whether truthfully or falsely. Furthermore, his confessions were inconsistent.  The appeal in R v Mack was heard at the same time as Hart, but the decision was released almost two months later. In Mack, the Court applied the test laid out in Hart but concluded that Mack’s confession was reliable. In contrast to Hart, Mack had legitimate work prospects that were more lucrative than what investigators were offering. He was not threatened with violence. He was even given the option to remain silent and continue as a low-ranking member of the organization. The court held that the conduct of the operation did not undermine the reliability of the confession.  2014 SCC 52  and 2014 SCC 58

R v. Anderson: In this Constitutional law case about mandatory minimum sentences for Aboriginal offenders and the decisions of Crown prosecutors to seek them,  the Court determined that although it is a principle of fundamental justice that sentences are proportionate to the crime committed and the degree of responsibility of the offender, this duty rests upon judges, not Crown prosecutors.  Expanding the scope of judicial review of discretionary Crown decisions unreasonably increases judicial oversight and would greatly encumber the criminal justice system.  Prosecutorial discretion is a principle based on the separation of powers. Absent evidence of a serious abuse of process, the Crown should be entitled considerable deference in its decision making.   2014 SCC 41

Bank of Montreal v. Marcotte: The Supreme Court of Canada ruled that Quebec’s consumer protection legislation is applicable to federally regulated banks, providing the basis for consumer class actions in Quebec against non-compliant banks. The effect is that banks are not immune from Quebec’s requirements related to disclosure of credit card conversion charges levied on purchases made in foreign currencies. The banks involved in this class action were ordered to reimburse the undisclosed fees and were subject to a punitive damages award of $25 per class member. This caseclarifies the banks’ duty to comply with both federal and provincial laws. There are many provincial laws providing for a variety of civil causes of action that can potentially be raised against banks. The silence of the Bank Act on civil remedies cannot be taken to mean that civil remedies are inconsistent with the Bank Act.  2014 SCC 55

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General): In a case dealing the paramountcy of federal legislation over a provincial scheme, the Supreme Court of Canada struck down British Columbia’s hearing fees, which required plaintiffs at the outset of the action to pay a fee corresponding with the anticipated length of the trial;  lengthier trials incurred higher fees. In the decision, the Court stated that hearing fees are permissible in principle but if the fees prevent individuals from accessing the court then they infringe the core jurisdiction of the superior courts and violate s. 96 of the Constitution Act, 1867.   2014 SCC 59

Febles v. Canada (Citizenship and Immigration): Febles was accepted into the United States as a refugee from Cuba. While living in the US, he was convicted on two counts of assault with a deadly weapon for which he served a prison sentence. As a result, the US revoked his refugee status and issued a removal warrant. Febles fled to Canada and sought refugee protection. Refugee claims are governed by the Immigration and Refugee Protection Act, which excludes protection for all people referred to in Article 1F(b) of the UN Convention Relating to the Status of Refugees (“Refugee Convention”). This Article specifically excludes from protection all persons who have committed a serious non-political crime outside the country of refuge prior to admission as a refugee. Febles argued that the application of that provision should be limited to fugitives. In interpreting the Article, the Court found that it does not apply only to fugitives and that ameliorating factors such as post-crime rehabilitation are not relevant. By excluding all claimants who have committed serious non-political crimes, the Article reflects the contracting states’ agreement that such persons are undeserving of refugee status. 2014 SCC 68