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.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 7 minutes.

Latest News

  1. The SCC is releasing its decision in R. v. Brunelle on Friday, January 26, 2024. At issue is the availability of a stay of proceedings under s. 24(1) of the Charter to a group of accused based on a finding that one of the accused had their constitutional rights infringed. The Court of Appeal had set aside stays against 34 individuals on the basis the trial judge had to assess the situation of each accused individually since a remedy under s. 24(1) could be granted only to a person whose own constitutional rights had been infringed.
  2. Start of season 10: As it’s been over six weeks since the last SCC decision, this is the perfect spot to start a new season that will run from now until about June, when the SCC slows for the summer.
  3. End of season 9: The last SCC decision up for prediction was Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 released on Dec. 8, 2023. In a unanimous decision authored by Justice Côté, the SCC allowed the language rights appeal. The Court sets aside ministerial decisions refusing to admit children of non‑rights holder parents to French schools in the Northwest Territories. The Minister was required to consider section 23 of the Charter in exercising her discretion. Only 29% of players correctly predicted the result.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Availability of Charter remedies

Appeal by leave from R. c. Brunelle, 2021 QCCA 1317

SCC factums & webcast of hearing

What Happened?

Background: The appellants were arrested and charged with various offences related to the large‑scale trafficking of cannabis. The arrests were coordinated to be done at the same time in multiple judicial districts as part of an investigation named Project Nandou.

Trial: The appellants were divided into four different groups for separate trials. The appellants in the first group brought a motion for a stay of proceedings for abuse of process based on a series of infringements of the rights of the accused, and primarily their right to counsel. The Superior Court granted the stay on the ground that the police conduct had undermined the integrity of the justice system. He noted that the infringement of the right to counsel was the most serious infringement. At hearing before the same Superior Court judge the following year, the parties agreed that the decision rendered concerning group 1 would apply to the accused in the other groups. The proceedings against all the other accused were therefore stayed.

Court of Appeal: The Court of Appeal allowed the appeals, set aside both Superior Court judgments staying the court proceedings, and ordered a new trial. It found that the trial judge necessarily had to assess the situation of each accused individually, since a remedy could be granted only to a person whose own constitutional rights had been infringed.

What Was Argued at the SCC?

Appellants: The Court of Appeal erred by focusing on a violation of the right to counsel for each of the appellants, rather than on the test for the residual category of abuse of process. Under the residual category, each appellant does not necessarily have to prove they suffered a direct personal violation of their constitutional rights in order to seek a stay under s. 24(1). The residual category can address violations that go to the integrity of the justice system.

Respondent: The trial judge erred by putting an end to prosecutions for all of the accused without first assessing whether each of them had been the victim of a violation of their rights. It is established in Canadian law that an accused who requests compensation under
the Charter must have been the subject of a personal violation of their rights. The trial judge cannot presuppose that a systemic violation of the right to the assistance of a lawyer occurred in this case.

What Else Should You Know Before Making a Prediction?

Defence counsel, as is often the case, has quite a hill to climb on this one. I can see the SCC laying down some guidance to courts when dealing with charges stemming from these large project-style investigations that result in large numbers of accused. But I would be surprised if they restored the trial judge’s decision. I’m leaning towards appeal dismissed.

Previous Predictions: Minority Language Education Rights

On Dec. 8, 2023, the SCC released its decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31.

Held (7:0): Appeal allowed. The Minister’s decisions refusing to admit children of non‑rights holder parents to French schools in the Northwest Territories must be set aside as she did not properly consider s. 23 of the Charter.

Key Points:

  • The Minister was required not only to consider s. 23 of the Charter in exercising her discretion to admit the children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories, but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests.
  • The Minister attached too much importance to her duty to make consistent decisions and gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion. Given the remedial nature of s. 23, pedagogical requirements had to have more weight.
  • The reasons for the Minister’s decisions do not show that she truly took into account the constitutional values at stake or that she meaningfully addressed the considerations arising therefrom.

Predictions: Only 29% of players correctly predicted this one.

Winners & Recap of Season 9

Season 9 saw us predict ten appeals from October to December. In terms of the breakdowns:

  1. Three of those appeals were allowed, while seven were dismissed.
  2. A couple of the appeals were dealt with together, resulting in there being only eight decisions in total.
  3. Of those eight, three were unanimous. On the five split decisions, only Chief Justice Wagner never found himself in dissent.
  4. Note: We treated the decision in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 which was released on Sept. 27, 2023, as a warm-up for the season, so it wasn’t counted above. Also, there are always a number of criminal appeals decided from the bench which aren’t available to predict.

In terms of predictions, it was a challenging season for two reasons:

  1. Two of the appeals dealt with together (Marchand and H.V.) resulted in one being allowed in part while the other being dismissed. The mandatory minimum sentences for child luring were found to be unconstitutional, but then in one case the sentence was increased. This all combined to make it one of the most difficult appeals to predict. Almost 80% of players had selected that both appeals would be allowed resulting in many broken streaks.
  2. The decision in R. v. Greater Sudbury (City), 2023 SCC 28 resulted in a tie by virtue of Justice Brown hearing the appeal but not participating in the final judgment. In cases of a tie, the appeal is dismissed. Unfortunately, our system could not process a tie and this resulted in every streak being broken midway through the season.

Despite those challenges, we had two players who managed to rise to the top:

  1. In first place, James Thomas got six in a row right. He was one of the few (possibly only) people to correctly predict that the joint appeals in Marchand and H.V. would have different dispositions.
  2. Emilio Abiusi managed to skip over the Sudbury tie decision to extend his streak to five for second place.
  3. About ten players tied for third with four right in a row.

As usual, gift cards but more importantly bragging rights for the winners. Thanks again for playing and let’s hope for no more ties!

-Tom Slade

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