The Supreme Court of Canada in Ottawa on Sept. 6, 2022.Sean Kilpatrick/The Canadian Press
Backlogged and still short one judge, the Supreme Court of Canada will hear major cases this fall involving secret trials, allegedly broken promises to First Nations from the 1800s and the privacy rights of school teachers, while it tries to dig out from a hole left during an investigation of one of its nine members.
The next three months of hearings will test the court’s constitutional mettle in a variety of contexts, from criminal law to the workplace to Indigenous treaty rights, and also its ability to decide cases in a timely way.
Russell Brown resigned on June 12, moments before a judges’ disciplinary body was to announce a public inquiry into allegations he harassed two women at an Arizona hotel, which he denied. Supreme Court Chief Justice Richard Wagner called on Prime Minister Justin Trudeau to promptly begin the process of appointing his replacement. Four months later, with the fall session set to start on Wednesday, the position is still unfilled.
The court, which has criticized lower courts for a “culture of complacency and delay,” has one case, about a pedestrian killed crossing the road in a construction zone, still undecided from a full year ago. Another, from last December, on the power of First Nations to write their own child-welfare laws, is unresolved.
Seven more from last January and February also remain to be decided, on top of several more from the rest of last winter and spring. Usually, the average time from a hearing to a ruling is six months.
Mr. Brown stopped participating in hearings last February, while a disciplinary complaint was being investigated against him. He also ceased to be part of rulings in a dozen cases in which the court had reserved judgment dating back to last September.
That meant a larger workload for the remaining judges, including a new judge, Justice Michelle O’Bonsawin, appointed a year ago, who has yet to write a judgment as sole author. (She co-authored one last March with Chief Justice Wagner.)
The case on secret trials, to be heard on Dec. 12 and 13 (the first day is public and the second private) raises the question of how far the justice system can go to protect the identity of a confidential police informant who is accused of committing a crime. The case is from Quebec, and came to light only when that province’s appeal court issued a redacted ruling on the informant’s appeal.
Another secret criminal trial has since come to light in Ontario, and a secret civil trial became known in B.C.
Media groups challenging the secrecy likened the Quebec case to justice in the Middle Ages. Concealed by the appeal court’s redactions were the identities of the judge, lawyers and accused; where the alleged crimes occurred; what they were; and what police agency investigated them. Even the level of court at which the trial was held has not been publicly revealed.
“No judicial proceeding in Canada should be conducted in complete secrecy,” a media coalition that includes CBC and La Presse argued in a filing at the Supreme Court. “In every instance, a minimum level of public disclosure containing neutral information about the matter is necessary to preserve public confidence in the administration of justice.”
Two cases featuring treaties more than a century old are also before the Supreme Court this fall. Both cases question the extent to which poverty in some of today’s Indigenous communities was caused by governments reneging on their treaty promises.
In the first one, scheduled for Oct. 12, the Blood Tribe, whose reserve is in southern Alberta near Lethbridge, argues that the federal government turned over less land than it promised in the 1870s, leading to shortages of land for housing and agriculture today. They first brought the case to court four decades ago.
At issue is not only control of the land but whether Section 35 of the 1982 Canadian Constitution, which protects treaty rights, supersedes provincial statutes of limitations on lawsuits.
The Federal Court ruled that the Indigenous group was indeed cheated out of promised lands. Ottawa did not challenge the judge’s finding that it reneged on its promise; instead, it argued on appeal that Alberta’s statute of limitations barred the lawsuit. The Federal Court of Appeal agreed, prompting the Blood Tribe to appeal to the Supreme Court.
“By using limitation periods, the Crown has pretty much insulated themselves from adhering to the promises they made under treaty over 150 years ago,” said Carly Fox, a member of the Blood Tribe and a lawyer representing the Assembly of Manitoba Chiefs, an intervenor group in the case.
She added: “It essentially gives a very clear out for Canada to adhere to Section 35” of the Constitution – the protection of treaty rights.
The second reconciliation case, set for Nov. 7 and 8, involves two 1850 treaties between the Crown and Anishinaabe communities in Northern Ontario, and an annuity that has been capped since 1875 at $4 per person per year.
The case is Ontario’s appeal of a ruling that it violated its treaty obligations. Meanwhile, a lower-court judge has been holding hearings on the damages to be awarded the Anishinaabe, mostly from Ontario, which could be $100-billion or more. The Supreme Court’s ruling will determine whether the Crown failed to keep its promises.
The case on teachers’ privacy rights, scheduled for Oct. 18, stems from a dispute between two teachers and a principal at the York Region District School Board.
One of the teachers left a computer screen on in a classroom with a personal log visible relating to the dispute. The principal took screen shots, later used in disciplinary proceedings. A labour arbitrator said the search was legal but the Ontario Court of Appeal ruled it an unlawful search and seizure under the Charter of Rights and Freedoms.
The school board, in its court filing, said the case is about a principal’s ability “to address evidence of workplace toxicity that literally flashes in front of their eyes.” The number of intervenors, 15, suggests an issue of broad importance to the workplace in government sectors. Ontario’s Attorney-General intervened to stress employers’ need to “manage the enterprise.”
On the other side, the Elementary Teachers’ Federation of Ontario said in its written argument: “Workers employed by government actors are no less entitled to privacy protections against their employers than suspected criminals are entitled to privacy protections against the police.”