Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, July 17, 2020, the Supreme Court of Canada is releasing its decision in R. v. Thanabalasingham, an as of right appeal that was heard on June 10, 2020 by Zoom. At issue in this appeal is whether the right of the accused to be tried within a reasonable time had been infringed in the context of a spousal homicide. Head over to Fantasy Courts to lock in your predictions.

The respondent, Sivaloganathan Thanabalasingham, a refugee from Sri Lanka and a permanent resident, was charged with the second degree murder of his wife. He was arrested on August 11, 2012, the day of the murder. After lengthy legal proceedings, his trial was scheduled to begin on April 10, 2017. He applied for a stay of proceedings on the ground that his right to be tried within a reasonable time had been infringed. The trial judge ruled in his favour, ordering a stay after having applied the framework from R. v. Jordan, 2016 SCC 27.

The Crown appealed. Shortly after the proceedings were stayed, Mr. Thanabalasingham was deported to Sri Lanka. Despite the deportation, the Crown continued its appeal. A majority of the Court of Appeal found the case was moot. The Crown appealed that decision to the SCC. On April 17, 2019, the SCC allowed the Crown’s appeal and remitted the matter to the Court of Appeal for a decision on the merits, finding that the majority of the Court of Appeal had erred in concluding that the case was moot. The mere fact that an individual has been deported, even if he has been deported to a country with which Canada does not have an extradition treaty, does not render a case moot.

A majority of the Quebec Court of Appeal dismissed the Crown’s second appeal, holding that the Crown had not proven any errors that would open the door to intervention by the court. They found that the trial judge had applied the law and considered all the circumstances, including the nature of the offence and society’s interest in having a case of spousal homicide heard on the merits. The trial judge had not erred by not subtracting a delay caused by defence counsel being unavailable, in concluding that delay attributable to the excessive time it took to complete the preliminary inquiry was not an exceptional circumstance, and in declining to apply the “transitional exceptional circumstance”. Two Court of Appeal judges in dissent would have allowed the appeal and returned the matter to the Superior Court for trial and ordered that Mr. Thanabalasingham be arrested if he were to return to Canada.

The SCC has been refining Jordan in a number of cases since its release. In R. v. K.G.K., 2020 SCC 7 and R. v. K.J.M., 2019 SCC 55, we saw the Court trying to reign in Jordan a bit by limiting the application of the presumptive ceilings. In both those cases the Crown was successful. In R. v. Cody, 2017 SCC 31 and R. v. Williamson, 2016 SCC 28, the Court was dealing with cases already in the system before Jordan was decided. In both those cases they ruled in favour of the accused noting excessive delay and the difficulty the Crown will have in justifying delay as a “transitional exceptional circumstance” under the Jordan framework. The present case is another example of significant delay pre-Jordan and I’m leaning towards the SCC dismissing the Crown’s appeal.

Last Week at the SCC

On July 10, 2020, the Supreme Court of Canada released its decision in Reference re Genetic Non-Discrimination Act, 2020 SCC 17. As expected, it was a close decision with a 5:4 split. Justices Karakatsanis and Moldaver wrote separate reasons to form the majority. Justice Kasirer wrote dissenting reasons on behalf of Wagner C.J. and Brown and Rowe JJ. The majority allowed the appeal and found that the Genetic Non-Discrimination Act was constitutional as it falls under Parliament’s jurisdiction over criminal law under s. 91(27) of the Constitution Act, 1867. The dissent would have dismissed the appeal on the basis that the Act falls within provincial jurisdiction over property and civil rights conferred by s. 92(13).

Justice Karakatsanis wrote that the pith and substance of “the challenged provisions is to protect individuals’ control over their detailed personal information disclosed by genetic tests, in the broad areas of contracting and the provision of goods and services, in order to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information.” She found the provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law: autonomy, privacy, equality and public health. As a result, it represents a valid exercise of Parliament’s criminal law power.

The dissent disagreed with the majority’s pith and substance analysis. The dissent focussed on the fact that the impugned provisions were about regulating contracts and the provision of goods and services, in particular contracts of insurance and employment, with a view to promoting the health of Canadians. It took a more exacting approach to determine the true aim of the legislation. Justice Kasirer concluded, “[T]he contested provisions do not satisfy the substantive component of criminal law. While they do relate to a public purpose, Parliament has neither articulated a well-defined threat that it intended to target, nor did it provide any evidentiary foundation of such a threat. It matters little to the present task whether the impugned provisions constitute good policy: they are ultra vires Parliament’s criminal law power.”

Thanks as always for playing and good luck with your predictions this week. As mentioned in a previous email, we’ll be wrapping up the season towards the end of July.

–Tom Slade