These are some of the questions raised by appeals slated for the Supreme Court of Canada’s new fall session as counsel began making their arguments this week in a court building with stepped-up exterior security features, such as an imposing barricade of large cement planters.
The top court’s docket from Oct. 8, 2024, to Dec. 13, 2024, features 21 appeals (two to be heard jointly) and includes seven non-criminal cases that raise issues of Aboriginal, administrative, bankruptcy, commercial, constitutional, family, and private international law (see some highlights below).
Two-thirds of the docket features criminal cases, which raise issues about the Charter, jury charges, mental disorder, police powers, youth sentencing and the contentious s. 276 Criminal Code process in sexual offence prosecutions for screening proposed evidence related to a complainant’s sexual history.
As parties’ counsel arrive at the Supreme Court of Canada in Ottawa for hearings during the 2024 fall session, they will encounter stepped-up building security features, such as a new barricade of large and heavy cement planters, as seen here ornamented by colourful vegetation on Sept. 24, 2024.
The court has set aside two-day hearings in three of the most far-reaching cases on the fall menu, including one as-of-right appeal.
The session began with a two-day hearing on Oct. 8 and 9, 2024, in a by-leave civil case that attracted more than a dozen interveners: John Howard Society of Saskatchewan v. A.G. Saskatchewan.
The appellant public interest litigant, which is supported by intervener civil liberties and prisoner advocacy groups, urges the court that s. 7 of the Charter requires “proof beyond a reasonable doubt” that an inmate committed a discipline offence punishable by such liberty deprivations as segregation or loss of earned remission in provincial correctional or remand centres.
The existing standard is “balance of probabilities” — the lower standard typically applied in other non-criminal cases.
(In federal prisons, the standard of proof in inmate disciplinary hearings is proof beyond a reasonable doubt.)
Depending on what the court says, the ensuing decision could have ripple effects in proceedings involving incursions on liberty in other non-criminal contexts (e.g., mental health, investigative and immigration detentions).
The John Howard Society of Saskatchewan asks the court to squarely address the meaning and limits of the s. 7 Charter right not to be deprived of liberty except in accordance with “the principles of fundamental justice” and, in particular, to address in this non-criminal context, the principle that is “most fundamental,” i.e. the presumption of innocence (Charter s. 11(d) states that “any person charged with an offence” has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal).
The Saskatchewan courts below ruled that s. 68 of the province’s Correctional Services Regulations, which mandates that inmate discipline hearings operate on a balance of probabilities, complies with s.7 of the Charter: John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2021 SKQB 287 and 2022 SKCA 144.
Pierre Hawkins, John Howard Society of Saskatchewan
“More broadly, the case will discuss the application of the presumption of innocence outside of criminal trials but where liberty remains at stake,” he explained. “When the state says you have done something wrong and wants to punish you by taking away your liberty, how sure does the state have to be that you did it?”
In 2019, there were about 6,200 disciplinary charges laid against inmates in Saskatchewan correctional institutions, he noted. “Tens of thousands are laid in other provinces every year, under the same low standard. The court’s decision in this case will have a significant impact on each one.”
Hawkins added that “this case is important because thousands of prisoners every year in Saskatchewan are found guilty of disciplinary offences and punished with harsh deprivations of liberty, including segregation and delayed release. They face such harsh sanctions even though, in most provincial correctional systems, there is nothing approaching certainty that the inmate committed the offence. Hearings are decided by panels of corrections officers, often deciding whether to substantiate the allegations of their own staff or colleagues. As a result, inmates are regularly subjected to harsh sanctions for offences they have not committed.”
The respondent Saskatchewan Crown argues, in its factum, that inmate discipline is not an “offence” under s. 11(d) of the Charter. It also warns that applying s. 11 and requiring proof beyond a reasonable doubt in the prison discipline context could have significant fallout in the criminal sphere, which it says includes the erosion of the Criminal Code’s conditional sentencing regime, unintended stays of criminal proceedings and inmate discipline charges being replaced with criminal charges.
Alexa Biscaro, Norton Rose Fulbright Canada LLP
Biscaro said the CCLA is raising “concerns relating to the independence of the [discipline] hearing panels, which are exclusively made up of internal correctional staff, and systemic racism and bias, both of which can have an important impact on how people in prison are disciplined, especially those who belong to one or more marginalized groups.”
Emily Hill, Aboriginal Legal Services
Calling Saskatchewan “ground zero for the crisis of Indigenous mass incarceration in Canada,” Hill commented that “this is not an academic dispute about the content of [Charter] ss. 7 and 11. The decision will have real consequences for Indigenous people in the correctional system.”
Coming up for argument on Nov. 7, 2024, is an important private international law appeal of particular interest to personal injury lawyers and clients who are injured abroad: Sinclair et al. v. Venezia Turismo et al.
The central question in the private international law appeal is how to apply the test for establishing jurisdiction “simpliciter,” on the basis of a real and substantial connection, that was established in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. That decision set out four “presumptive connecting factors” that, prima facie, entitle a court to assume jurisdiction over a tort case. The upcoming appeal before the Supreme Court concerns how to interpret and apply the fourth presumptive connecting factor, that is whether “a contract connected with the dispute was made in the province”, and if so, whether the presumption of jurisdiction was rebutted.
The appellants, a couple, were on a European holiday with their son, who soon was to head off to university, when the water taxi the family was riding in crashed into a Venice pier, injuring both parents but disabling their son. The appellants sued several domestic and foreign defendants, including AMEX, which curated and booked the tour and whose “travel concierge” in Ontario arranged, through Carey International, the water taxi to take the family to their hotel in Venice. Carey International in turn contracted with the Italian defendants, who carry on business in the Italian water taxi industry.
A motion judge in Ontario rejected the Italian defendants’ motion to strike, holding that Ontario courts do have jurisdiction based on a connection with multiple Ontario contracts. However, a majority of the Ontario Court of Appeal stayed the action against the Italians, holding that the appellants had not established that the fourth presumptive connecting factor was met: (i) the contractual connections were not “direct,” (ii) the contracts did not connect to each foreign defendant individually and (iii) the claim itself was framed in negligence rather than breach of contract: Sinclair v. Amex Canada Inc. (c.o.b. Centurion Travel Service) 2023 ONCA 142.
“The appeal is important to the personal injury bar and litigants because it impacts where injured parties can sue to seek redress for injuries they may have sustained while they are abroad,” explained Chris Paliare of Toronto’s Paliare Roland Rosenberg Rothstein LLP.
Chris Paliare, Paliare Roland LLP Toronto
OTLA argues that the top court “should avoid a defendant-centred approach that focuses only on the connections between the jurisdiction and the defendant.” Rather the “real and substantial connection” test is concerned not only with a connection between the jurisdiction and the defendant but also with a connection between the jurisdiction and the subject matter of the litigation, OTLA contends. “Both should be considered in the test, but both need not be established to ground the assumption of jurisdiction in a particular case.”
OTLA also urges in its factum that the test for jurisdiction simpliciter should be clarified to delineate more clearly between the types of connections that may ground the assumption of jurisdiction in a particular case.
The test “should make clear that defendant-centred factors (such as residence, domicile and carrying on business) may ground jurisdiction over a defendant and that other connections (such as where the tort was committed and whether a contract connected with the dispute was made in the province) may ground jurisdiction over the dispute,” OTLA states. “If a real and substantial connection to the dispute is established, jurisdiction is assumed in respect of all aspects of that dispute, including any claims against foreign parties to the dispute. In OTLA’s submission, such a clarification would promote certainty and predictability while ensuring fairness to and justice for plaintiffs who seek to have their claims adjudicated in a single forum.”
From a defence perspective, the intervener British Columbia Chamber of Commerce argues, among other things, that a plaintiff must establish a real and substantial connection between the forum, the subject matter of the claim, and “each” individual defendant. And if the factor “a contract connected with the dispute was made in the province” is to be retained as a presumptive connecting factor for tort claims, it should require: (i) a causal (i.e., but-for) connection between the contract made in the province and the subject tort and (ii) that the subject matter, formation or performance of the contract render it reasonably foreseeable that the defendant would be subject to a Canadian court’s jurisdiction, the B.C. Chamber of Commerce argues. It also argues that there is no elevated persuasive or evidentiary burden to rebut a real and substantial connection once it is established. “The rebuttal stage is a shift in perspective, not difficulty, and a connection may be rebutted on evidence or pleadings,” according to the association’s factum.
Other questions the court will consider this fall include:
- In determining whether a person is unfit to stand trial, should the “limited cognitive capacity” test be replaced by a test that requires that a mentally disordered defendant have the ability to make rational decisions about conducting their defence? (Oct. 10, 2024) Bjarwani v. R., 2023 ONCA 203.
- How does the interjurisdictional immunity principle apply in challenges to the applicability of Quebec’s Private Security Act to airport and maritime security activities? (Dec. 11–12, 2024) Opsis Services aéroportuaires inc. c. Procureur général du Québec, Directeur des poursuites criminelles et pénales, 2021 QCCA 229; Services maritimes Québec inc., Michel Fillion c. Procureur général du Québec, Directeur des poursuites criminelles et pénales, 2023 QCCA 325.
- How should courts determine the habitual residence of children allegedly abducted from or withheld from a non-Hague Convention signatory state? (Dec. 9, 2024) Dunmore v. Mehralian, 2023 ONCA 806.
- Is an application and a voir dire required before a party tenders a complainant’s text messages that might reasonably trigger a s. 276 screening of proposed evidence of a complainant’s sexual activity in a sexual offence prosecution? (Dec. 5, 2024) Kinamore v. The King, 2023 BCCA 33.
Photo of Supreme Court of Canada building September 2024: Cristin Schmitz
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