2019 Year In Review At The Supreme Court Of Canada

• Published date: 01 June 2020
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Madeleine Brown, Akiva Stern and Stephanie Sugar
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Immigration, Criminal Law, Privacy, Copyright, Privacy Protection, Trials & Appeals & Compensation, General Immigration, Crime

2019 was another landmark year at the Supreme Court of Canada. The Court revisited the framework for administrative law, interpreted important laws defining citizens' rights and obligations, and reaffirmed fundamental tenets of freedom and democracy that help define who we are as a Canadian society. The Court highlighted the following 12 decisions as its Notable Decisions of the year. McCarthy Tétrault is honoured to have acted as counsel for parties and interveners in five of these cases (Bell, Stillman, Fleming, Keatley and Jarvis).

In this post we provide a brief overview of these Notable Decisions, with links to their full text, and some related McCarthy Tétrault posts.

1. Bell Canada v. Canada (Attorney General), 2019 SCC 66 and Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Federal, civil by leave): In this trilogy of decisions, the Court fundamentally overhauled administrative law in Canada by setting out a new framework to govern judicial reviews and statutory appeals. Under the new framework, statutory appeals from administrative tribunals will be treated in the same way as appeals from a court, and therefore attract a correctness standard of review on inextricable questions of law. A judicial review of a decision by an administrative tribunal, on the other hand, is presumed to attract a reasonableness standard of review (albeit one which involves a more robust reasonableness inquiry than was previously the case). The Court's goal, in streamlining the standard of review analysis was to reduce the amount of litigation over the appropriate "standard of review".

The Trilogy is undoubtedly one of the most important administrative law decisions in recent Canadian legal history. It will fundamentally alter the relationships that businesses, professions and individuals have with hundreds of different regulators and tribunals.

Read McCarthy Tétrault's post on the Trilogy here.

Read the full decisions (Vavilov) here and (Bell/NFL) here.

2. Frank v. Canada (AG), 2019 SCC 1 (Ontario, civil [constitutional] by leave): The right to vote goes to the very heart of Canadian democracy. The Court took the opportunity in Frank to consider "one of the last restrictions on the right to vote in federal elections: residence." The Majority of the Court (per Wagner C.J.) held that provisions of the Canada Elections Act, which deny citizens residing outside of Canada for more than five years the right to vote, were unconstitutional, and could not be saved under s. 1. of the Charter. The Majority rejected the rationale of the Ontario Court of Appeal that the "residency requirement fulfills the pressing and substantial objective of preserving the social contract", holding that the Charter in fact implies no such restriction. In a world no longer operating under the same historical constructs of tying rights to land ownership and physical presence, the law must keep step with recognizing global change. The right to vote is tied to citizenship alone, and the Majority maintained "citizenship, not residence, defines our political community".

Read the full decision here.

3. R v. Stillman (Federal, criminal/military by leave) 2019 SCC 40: Stillman settled conflicting rulings in Canada as to whether military members have a right to trial by jury for civilian criminal offences. Section 130 of the National Defence Act ("NDA"), effectively incorporates and transforms all criminal acts into military service offences, when committed by service members. Section 11(f) of the Charter enshrines the right to trial by jury but creates a "military exception" which excludes persons charged with military crimes tried in military courts. Stillman considered whether the NDA was unconstitutionally overbroad, and specifically whether the military exception should be...