2016: The SCC Year In Review

This article summarizes the 10 most important Supreme Court of Canada decisions from 2016, as selected by Gowling WLG's Supreme Court of Canada Services Group.

1. R. v. Jordan, 2016 SCC 27

   In this judgment, a divided Supreme Court addressed the question of whether the existing framework for dealing with section 11(b) right to trial within a reasonable time provided in R v Morin should be amended or replaced. The appellant was charged with several drug offences in December 2008. His trial concluded 49.5 months (over four years) later.

   A majority of the Court, led by Justices Karakatsanis, Moldaver and Brown, abandoned the Morin framework and replaced it with a new analysis. They identified four doctrinal problems with Morin, replacing it with the following structure:

   There is a ceiling beyond which delay becomes presumptively unreasonable. This ceiling is 18 months for cases tried in provincial court and 30 months for those tried in superior court (or those tried in provincial court following a preliminary inquiry). In calculating the delay, delay attributable to the defence's waiver or conduct must be subtracted from the total time between the laying of the charge and the anticipated or actual end of trial. Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable. Below the relevant presumptive ceiling, the defence bears the burden of showing that the delay was unreasonable by establishing two conditions: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. If these conditions are not established, the section 11(b) claim fails. For cases currently in the system, the framework must be applied flexibly and contextually with due sensitivity to the parties' reliance on the previous state of the law. Applying this structure, the majority found that Mr. Jordan's section 11(b) rights were violated. Subtracting delay attributable to the defence, the total relevant delay was 44 months, well beyond the presumptive ceiling of 30 months. The majority noted that there were no discrete exceptional events on the record, nor was the nature of the trial particularly complex so as to justify the delay.

   The remainder of the Court, concurring in the result on the particular facts of Mr. Jordan's case, strongly objected to jettisoning the Morin framework and, instead, proposed a reorientation of the existing doctrine. Justice Cromwell, writing for Justices McLachlin, Wagner, Gascon, provided a series of objections to the majority's new structure. Justice Cromwell noted (i) that the majority's proposed ceilings are inconsistent with the section 11 jurisprudence that reasonableness cannot be captured by a number; (ii) that the creation of such ceilings is a legislative, not a judicial task; (iii) that there was no support in the record for the ceilings adopted, nor was there any argument about the potential impact of imposing them; and (iv) the simplicity promised by the new framework is likely illusory and it simply shifts the complexity of the analysis to a new analytical location.

   In a companion case of R. v. Williamson, 2016 SCC 28, the Court split on whether the delay in Mr. Williamson's case was unreasonable. The majority found the delay was unreasonable, that it was not justified and they issued a stay of proceedings. In the minority's view, the delay was not so long as to be baldly unreasonable, and as a result, they were entitled to consider whether societal interests in having the case decided on its merits outweighed the accused's interests in a speedy trial.

2. Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12

   The plaintiffs in this case sought three declarations: (1) that Métis and non-status Indians are "Indians" under section 91(24); (2) that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and (3) that Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples. The trial judge granted the first declaration but declined the second and third. The Federal Court of Appeal upheld the first declaration; however, it narrowed its scope to exclude non-status Indians and include only those Métis who satisfied the three criteria from R v Powley, [2003] 2 SCR 207. The plaintiff's appealed this decision, seeking to restore the first declaration as granted by the trial judge and grant the second and third declaration. The Crown cross-appealed, arguing against all of the declarations.

   The SCC allowed the appeal in part and dismissed the cross-appeal. It held that the trial judge's decision regarding the first declaration should be restored and that the Federal Court of Appeal erred when it narrowed the scope of the declaration. Applying the test set out in Canada (Prime Minister) v Khadr [2010] 1 SCR 44, the Court found that the first declaration had enormous...