Suing the court
Is the SCC liable for resisting translations? Plus CanLII's lawsuit against an AI chatbot, the Supreme Court's take on preliminary inquiries, and the latest legal news.
Dylan Gibbs
November 07, 2024
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Civil liability for sexual assault. Criminal liability for fraud. Second-time President of the United States of America. This week’s reminder to never give up on your dreams.
— Dylan Gibbs
TODAY'S DOCKET |
Suing the Supreme Court of Canada
Making preliminary inquiries
Helping Ottawa mooters
Capping emissions
Stirring blockades
Fighting chatbots
STAYING CURRENT 🗞️
When does political speech go too far?
R v Pawlowski, 2024 ABCA 342
Encouraging an uprising comes with consequences (at least for those without presidential immunity). The tough part is figuring out the line between political speech and counselling a criminal offence — a task for Canadian courts now sorting through the mess of 2022’s COVID protests.
The Alberta Court of Appeal recently warned that it’s important not to criminalize legitimate political speech:
In a free and democratic society … the meaning of “deliberate encouragement or active inducement” must not capture speech that is substantively political, rather than substantively criminal. Political expression that merely communicates sympathy for those engaged in criminal mischief, support for the political outcomes that those engaged in criminal mischief seek to achieve, or agreement with the criminal actors’ political beliefs or values, will not meet the threshold.
[T]he Crown must prove [that, viewed objectively, the speech] deliberately encourag[ed] or actively induce[ed] those with a political cause to engage in criminal activities…
But the Court’s caution didn’t help Artur Pawlowski, who gave an impassioned speech near the Coutts border blockade in 2022. The Court upheld his conviction for counselling mischief, since he travelled to Coutts for his speech, told protestors to hold the line, and acknowledged he might be arrested for his actions.
[H]e spoke directly and specifically to the protesters and did so in a physical setting likely to amplify the impact of the encouragement he offered through his words. A reasonable person would understand the appellant’s speech to be an active inducement of the illegal activity that was ongoing and that the appellant intended for his speech to be so understood.
Getting exclusive with your jurisdiction clauses
Yegre EB Ltd. v. Seguin, 2024 BCCA 365
This one’s a good reminder from the BC Court of Appeal about drafting forum selection clauses carefully.
A plaintiff sued in BC. The defendant tried to dismiss the lawsuit, arguing that Alberta courts had exclusive jurisdiction. But the parties’ contract didn’t exactly use the word “exclusive”:
[The parties] submit to the jurisdiction of the Alberta courts for all purposes arising in connection with this Agreement.
According to the Court of Appeal, that sort of language — at least on its own — is more like an open relationship than a marriage.
[The defendants have not shown] that the Clause had the clear, express, and unambiguous effect of granting jurisdiction to the Alberta courts to the exclusion of all other forums.
Putting a cap on emissions
The federal government soft-launched the regulations that will cap oil and gas emissions. The draft regulations would limit emissions to roughly 35% below 2019 levels, starting in 2030. Industry participants will need to offset emissions exceeding that mark by earning or purchasing credits. Even with the help of credits, though, polluters can only exceed the cap by 20%.
The government won’t be releasing the final regulations until next year. In the meantime, there’s a consultation process to solicit feedback.
Alberta’s feedback? “See you in court.” Premier Danielle Smith accused Federal Environment Minister’ Steven Guilbeault of having “a deranged vendetta against Alberta”. Expect the province to launch a constitutional challenge when the regulations take effect.
PRESENTED BY CAPITAL CUP
Inspire the next generation of lawyers
Remember getting grilled in your first moot? It’s time to return the favour.
Ottawa’s undergraduate moot competition needs volunteer judges — lawyers and law students from all backgrounds, whether you’ve judged a moot before or not.
You’ll help passionate undergrads hone their advocacy skills and get an early jump on their legal careers. And take it from someone who judged the competition last year — you’ll be impressed by the performances.
The competition takes place November 23–24 at Carleton University. Busy weekend? No problem. Commit to judging just one day or both — whatever fits your schedule.
You can find out more and register here.
SCC SPOTLIGHT 🔦
R. v. Archambault, 2024 SCC 35
The SCC’s Friday decision deals with the Criminal Code’s amended eligibility for preliminary inquiries. Given the fairly niche issue, a heavily divided Court and some sharp words for Parliament might be more memorable than the result.
A bit of context: Preliminary inquiries give people charged with indictable offences a chance to test the Crown’s case before trial. Only offences with a maximum sentence of at least 14 years qualify — a limiting measure introduced in 2019 to speed up criminal proceedings.
The problem is that Parliament didn’t explain whether the new rule applies to offences pre-dating the 2019 amendments.
At the SCC: The Court split into four sets of reasons, making it tough to sort out the prevailing view. But if you Venn diagram the judgments, here’s how things shook out:
Everyone agreed that preliminary inquiries give the accused a substantive benefit that legislators can’t take away without clear language.
Most judges said that the amendments took away rights that hadn’t already vested.
Six judges said accused persons generally don’t have a vested right to a preliminary inquiry until they appear in court (at the earliest) — which means the new rule applies to most people who didn’t request a preliminary hearing before the changes took effect.
But these accused did have a vested right to a preliminary inquiry — because they appeared in court before the amendments took effect and deferred their election.
Extra credit: The Court also covered (in obiter) what it means to be charged with an offence punishable by at least 14 years in prison. Five judges agreed that an offence is only eligible for a preliminary inquiry if the accused actually faces the maximum sentence of 14 years.
In the two cases on appeal, the accused were charged with offences that had 10-year maximum sentences when they were committed. Since the Charter gives the accused the benefit of the lesser punishment, they wouldn’t have been entitled to a preliminary inquiry if the majority had applied the new rule.
Big picture: By now, the new rule applies to every case in the system — leaving us with 304 paragraphs mostly about a moot issue. One of the biggest takeaways is that Parliament needs to do a better job explaining its amendments:
Parliament’s decision to remain silent about when many provisions in [the Act] apply has created considerable legal uncertainty across all levels of court. This is the second time this Court has been asked to provide clarity on the temporal application of amendments introduced by this Act.
In light of Parliament’s failure to legislate on the timing of these amendments, [we need to interpret them].
Next up from the Supreme Court
Tomorrow the Court is ruling on two administrative law cases with big potential. The appeals cover the approach to reviewing subordinate legislation (like regulations). Regulations have attracted extra deference in the past, but Vavilov may have opened the door for courts to take a closer look.
Whatever the result, Hearsay will have you covered with details next week. In the meantime, you can check out this past issue for a primer.
Seeing lots of excitement about this one so just a quick reminder of Daly’s iron law: the more excited you are about an admin law decision, the less interesting the decision will be!
Here, that would play out as Transalta being a fairly brief lead decision.
Just saying!
— Paul Daly (@pauldalyesq)
12:43 PM • Nov 5, 2024
HEARSAY ROUNDUP
🟧 People around the country are mourning the loss of Murray Sinclair, the former judge and senator who led the Truth and Reconciliation Commission. He passed away on Monday at the age of 73.
🤖 CanLII sued Caseway AI — a company that admittedly scraped CanLII’s data to train a subscription-based AI chatbot. Alistair Vigier (one of the company’s co-founders) said Caseway isn’t doing anything wrong because scraping CanLII’s data doesn’t harm the non-profit.
You might know Vigier from his other venture, Clearway Law, which also scraped data and ticked some people off.
🧑⚕️ The BC Supreme Court granted an injunction to stop a woman’s medically assisted death, based on evidence that she suffered from mental illness but not a physical condition.
The case adds fuel to the concern that some doctors are granting MAiD requests that don’t meet legislated criteria.
Although other cases have held that courts can’t review a doctor’s MAiD assessment, Justice Coval wasn’t convinced.
[I]n the extremely pressing circumstances of this application, there is a serious question to be tried in B.C. about whether there should be judicial oversight when someone chooses to die pursuant to the MAID exemption provisions in the Criminal Code. This applies to both the assessment of whether the exemption conditions were met and whether the process was properly followed.
⛺️ A group of Ontario mayors want the province to clear homeless encampments using the notwithstanding clause. Their request responds to recent court cases holding that municipalities can only clear encampments if they have enough shelter space. Doug Ford told mayors to make a written demand for the notwithstanding clause if they want something done — and several mayors followed through.
I have an idea: Why don't the big city mayors actually put in writing that they want the province to change the homeless program, make sure that we move the homeless along, and why don't they put in: 'Use the notwithstanding clause,' or something like that.
That's what they should be doing... Let's see if they have the backbone to do it, if they really want the homeless situation to improve.
💬 Droits collectifs Quebec sued the SCC for not translating pre-1970 decisions into both official languages. If you haven’t been following, the Supreme Court is resisting translating the more than 6,000 decisions it issued before the Official Languages Act took effect in 1969. Chief Justice Wagner went as far as to say that the older decisions don’t have much value and don’t get cited — which seems a bit contradictory:
Sure, this chart is a bit over-inclusive. It includes passing references like this one:
[A]s Lamer C.J. wrote in R. v. Van der Peet, the fiduciary relationship between the Crown and Indigenous peoples implies that “treaties, s. 35(1), and other statutory and constitutional provisions protecting the interests of [A]boriginal peoples, must be given a generous and liberal interpretation” (para. 24, citing R. v. George, [1966] S.C.R. 267, at p. 279).
But the Court clearly still cites its old decisions regularly. And that seems like a pretty compelling reason not to discount them.
THINGS NOT TO DO 😤
Don’t ignore formatting rules.
Justice Sharma of Ontario’s Superior Court of Justice almost hit a lawyer with cost consequences over a brief that wasn’t double-spaced. He ultimately decided he didn’t have the authority to penalize the lawyer for poor formatting, but he sure gave it some thought. He even went as far as to recommend a change to permit sanctions in similar cases:
While [non-compliance with Practice Directions] is a persistent and frustrating problem, [I can’t say it is serious enough to warrant a sanction through the Court’s inherent jurisdiction].
Given the frequency with which there is non-compliance with the Practice Direction, I would suggest this is a necessary rule amendment and recommend that the respective rules committees consider [an amendment giving judges the power to hold lawyers to account for obvious breaches of the Practice Directions]
 | That’s all for today. Govern yourself accordingly. If someone sent you this email, subscribe here. Want to advertise in Hearsay? Get in touch here. |
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