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What’s in store for the Supreme Court?

A Criminal Mind

The fall term of the Supreme Court of Canada, which began Oct. 3 and continues through early December, will be Chief Justice Beverley McLachlin’s last. She officially retires Dec. 15. Given her unparalleled longevity and influence, this is undoubtedly a transitional moment for the court. To put it in perspective, the next longest-serving judge, Rosalie Abella, has been on the Court since 2004 — 13 years to McLachlin’s 28. And the other seven judges were all appointed in 2011 or later.

Accordingly, even though the chief justice’s retirement will be an important milestone, most of the turnover from what observers usually think of as the “McLachlin Court” has already taken place.

This is a very different group from the court of the 2000s that consolidated and refined the approach to the Charter first elaborated by the more fractious courts led by Brian Dickson and Antonio Lamer. From a criminal law perspective, the McLachlin Court tended to be more consensus oriented than its predecessors and, in any event, was quite evenly balanced between more liberal and more conservative voices, tacking right on some issues such as the Charter rights of detainees (Singh, Sinclair) and left on others such as mandatory minimum sentences (Nur, Lloyd).

Few of the court’s current members participated in the most significant criminal law decisions of the chief justice’s tenure. As a result, it is difficult to predict what direction the jurisprudence will take after her departure. Justices Michael Moldaver and Abella are known quantities, moderately conservative and moderately liberal on criminal law issues, respectively. Of the others, much less can be confidently predicted. And, of course, the court is about to get a new member from the west and (presumably from among the current complement) a new chief. Few people seem to have any real insight into the likely identity of either. Those who do aren’t saying so publicly.

As alluded to above, a lot has happened in criminal law jurisprudence during McLachlin’s tenure. Looking ahead to her final term, however, this fall doesn’t seem to promise much in the way of criminal law blockbusters.

Nothing remotely like Jordan, last year’s landmark case on unreasonable delay, appears to be in the offing. Indeed, the case that’s probably going to be watched most closely by criminal lawyers is not actually a criminal case at all. The long-running saga of Joe Groia and the Law Society of Upper Canada will finally reach its conclusion about 17 years after the courtroom events in question took place.

Back around the turn of this century, Groia behaved obstreperously in the course of defending a client charged with securities offences arising out of the collapse of Bre-X. He repeatedly made unfounded allegations of misconduct against the prosecution. Eventually, his client was acquitted, but Groia himself was brought up on law society charges that he committed the professional offence of incivility.

I tend to think that the case’s significance has been exaggerated by its notoriety. The Supreme Court itself has dealt twice with related issues of lawyers’ conduct in the recent past. In Doré(2012), the court held that the Barreau du Québec was within its rights to discipline a lawyer for writing a rude letter to a judge. It sounded a note of caution, however, observing that “lawyers should not be expected to behave like verbal eunuchs.”

And earlier this year, in Jodoin, the court approved of a lower court ordering costs against a defence lawyer personally for having brought  a baseless recusal motion.

My guess is that the court is likely to take a similarly deferential approach to the Groia case but that this isn’t likely to prompt an avalanche of civility prosecutions as feared by the defence bar. After all, the law society has other pressing business on its agenda, such as the re-branding of “Upper Canada” to something more hip and contemporary.

One of the few important criminal law cases on the fall docket is the Wong case from British Columbia, which concerns the test to be applied when a convicted person seeks to have a guilty plea overturned because they were unaware of the immigration consequences that attach to the conviction or sentence. More often that you might think, a non-citizen offender will learn only after pleading guilty that they are now subject to automatic deportation.

The Ontario Court of Appeal has been relatively generous in its approach to reviewing such convictions; the British Columbia Court of Appeal has been more stringent.

I would hope that the Supreme Court comes down in line with the Ontario approach given the extent to which unawareness of such drastic consequences really does undermine the “informed” character of a plea.

The rest of the fall docket features the usual assortment of criminal appeals taken by leave and as of right. Though none of them stands out as earth-shaking, it’s always possible that a “sleeper” will emerge.

Recall that the most cited criminal case in the history of the Supreme Court, R. v. W.(D.), [1991] 1 S.C.R. 742, the operative passages of which any criminal lawyer can recite from memory, arose as a humble appeal as of right. It was heard by a panel of only five judges. Significantly for the era that is about to end, McLachlin was one of them.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.


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