A pedestrian walks past the Supreme Court of Canada in Ottawa on Nov. 26, 2020.Sean Kilpatrick/The Canadian Press
The Supreme Court’s influence over Canada’s shape and future as a federation highlights the winter session beginning Tuesday, which also includes major cases on Indigenous rights and sexual assault.
The federal government has given itself extensive new authority over whether natural-resource projects can go ahead. Alberta has objected, saying the power to regulate natural resources belongs to the provinces under Canada’s 1867 founding Constitution.
The law at issue – the 2019 Impact Assessment Act – enables Ottawa to regulate projects based on whether they have environmental impacts that fall into federal jurisdiction. That includes climate change and effects on Indigenous territory and ecosystems. Alberta argues that it includes virtually all areas of its economy. And the Alberta Court of Appeal, in a 4-1 ruling in May, agreed. It found the law an unconstitutional intrusion into provincial jurisdiction.
Ottawa’s appeal of the Impact Assessment Act ruling, which will be heard over two days in March, requires the court to consider two very different challenges: an environment in crisis, and a federation stretching at the seams. In December, Alberta passed the Sovereignty Act, creating new powers to fight perceived federal encroachments.
The case “comes at a time when our Supreme Court of Canada has to be very sensitive to the tensions that exist within our federal system,” says lawyer Peter Gall of Vancouver, who represents the Independent Contractors and Business Association, and Alberta Enterprise Group, which are intervening together in the case, and oppose the federal law.
“They have tremendous influence, and indeed control, over the shape of our federal system.”
The hearing on the Impact Assessment Act is a reference case; the court’s opinion is advisory only. Advisory rulings tend to have the same effect as other constitutional rulings by the Supreme Court, because the governments that bring the reference cases show respect for the court’s advice.
In 2019, Alberta referred the question of the law’s constitutionality to that province’s top court, the Court of Appeal. Ontario and Saskatchewan intervened in support of Alberta. The appeal court found the Impact Assessment Act to be as damaging to federalism as greenhouse gases are to the climate.
“Climate change constitutes an existential threat to Canada,” the majority wrote, but the federal environmental law “involves another existential threat … and that is the clear and present danger this legislative scheme presents to the division of powers guaranteed by our Constitution and thus, to Canada itself.”
The case is the second big federalism case on the environment in the past couple of years. In March, 2021, the Supreme Court upheld a federal carbon tax as a valid use of federal power in a 6-3 ruling. Alberta, Saskatchewan and Ontario had brought reference cases in which they opposed the tax. Twenty-nine environmental, business and Indigenous groups are intervening in the current case.
Lawyer Richard Lindgren is representing the Canadian Environmental Law Association, a legal-aid clinic intervening in support of the Impact Assessment Act. “It’s been well recognized that you need a good, participatory, evidence-based process like environmental assessment to take a hard long look at the environmental impact of these projects,” he said in an interview. And the federal role ensures that gaps in provincial assessment processes are filled.
Other cases:
The King v S.S., Jan. 10: On Tuesday, a five-year, 37-case losing streak for the defence in sexual-assault cases at the Supreme Court will be on the line. The child-abuse case shows the practical, legal and moral difficulties in assessing credibility.
A seven-year-old girl alleged to police in a video interview that her uncle had molested her. But a year and a half later, she told a preliminary inquiry she did not remember the incidents or the interview. Afterward, she told a psychologist she lied at the preliminary inquiry because she had been sent to foster care after making the allegations.
At trial, a psychologist said it would be too traumatizing for the girl to testify in court. The trial judge accepted the videotaped interview as evidence, and ultimately convicted the uncle.
Normally, such an interview would be deemed hearsay, but hearsay can be allowed in under exceptional circumstances – when it’s considered necessary (as when a witness has died) and reliable. A psychologist said the police conducted the interview according to protocol, and the judge said the girl had no motive to fabricate.
The Ontario Court of Appeal, in a 2-1 ruling, threw out the conviction, saying the judge had understated the value of cross-examination in getting at whether the girl was actually sincere, especially in light of her admission that she lied at the preliminary inquiry.
Still, a victory at an appeal court is no guarantee of a win at the Supreme Court. Provincial appeal courts had sided with the defence in 14 of the cases lost by the defence over the past five years. Over and over, the court has stressed that it is up to trial judges to assess credibility.
A lawyer from the Ontario Attorney-General’s Crown Law Office nodded at that record in its written argument filed with the Supreme Court.
“This Court has had frequent cause to remind provincial appellate courts that it is for trial judges to decide whether to accept the evidence of a complainant in a sexual assault case,” lawyer Michael Dunn wrote.
The Criminal Lawyers’ Association, which is intervening, said appeal-court judges have an important role to play in preventing wrongful convictions.
“Where a trial judge commits a legal error relating to the admissibility of evidence, appellate courts must intervene,” lawyers Maija Martin and Nicola Langille said in a written filing at the Supreme Court. “This is true even where the admissibility ruling impacts the credibility findings at a sexual assault trial.”
Cindy Dickson v. Vuntut Gwitchin First Nation, Feb. 7: The Yukon group’s constitution requires elected leaders to live on its traditional territory in the far north. But Ms. Dickson, who has medical reasons for living 800 kilometres away in Whitehorse, wished to run. She argued the residency requirement violates the equality clause of the Charter (Section 15). But the Charter also says – in little-discussed Section 25 – that Charter rights do not detract from pre-existing Indigenous rights, such as rights protected in treaties. That section has never been debated at the Supreme Court.
“The case is significant because it is the first to deal with the interplay between Indigenous self-government, as recognized through a constitutionally protected modern day treaty, and the Charter,” says Jason Madden, a lawyer representing the Métis Nation of Ontario and Métis Nation of Alberta, intervening together at the Supreme Court.