2014: The SCC Year In Review

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. Hrynew: The 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...