Human Rights - SCC

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

A not-for-profit disability rights organization sought public interest standing to challenge the constitutionality of British Columbia's mental health legislation permitting forced psychiatric treatment without patient consent.

After individual co-plaintiffs withdrew, the chambers judge dismissed the claim for lack of standing; the Court of Appeal remitted the matter for fresh consideration.

The Supreme Court dismissed the appeal, holding that legality and access to justice do not merit particular weight in the Downtown Eastside framework and that a directly affected individual co-plaintiff is not required for a public interest litigant to establish a sufficient factual setting.

Applying the three Downtown Eastside factors cumulatively, the Court granted the organization public interest standing and awarded special costs on a full indemnity basis throughout.

The appellant Crown sought to uphold s. 745.51 of the Criminal Code, which authorized courts to impose consecutive 25-year parole ineligibility periods for each count of first degree murder.

The respondent, convicted of six counts of first degree murder in the Quebec City mosque attack of January 29, 2017, challenged the constitutionality of the provision.

The Supreme Court unanimously dismissed the appeal, holding that s. 745.51 violates s. 12 of the Charter because it effectively authorizes imprisonment for life without a realistic possibility of parole, which is degrading in nature and intrinsically incompatible with human dignity.

The provision was declared of no force or effect immediately and retroactively to its enactment in 2011, resulting in the respondent serving his six 25-year parole ineligibility periods concurrently for a total ineligibility period of 25 years.

The appellant was charged with aggravated assault and break and enter after consuming alcohol and psilocybin mushrooms and committing violent acts while in a state of extreme intoxication akin to automatism.

The Crown invoked s. 33.1 of the Criminal Code to bar the defence of self-induced extreme intoxication.

The Supreme Court of Canada unanimously held that s. 33.1 violates ss. 7 and 11(d) of the Charter by permitting conviction without proof of mens rea or voluntariness, and that these violations could not be saved under s. 1 because the provision is not minimally impairing and its deleterious effects outweigh its salutary benefits.

Section 33.1 was declared unconstitutional and of no force or effect, and the trial acquittal was restored.

A professional comedian appealed a discrimination finding after a human rights tribunal held that his comedy routines mocking a public figure with a disability violated the right to the safeguard of dignity under the Quebec Charter.

The majority of the Supreme Court allowed the appeal, holding that the three elements of a discrimination claim under s. 10 of the Quebec Charter had not been established.

The majority found that the distinction was not based on a prohibited ground since the comedian had not targeted the complainant because of his disability but because he was a public figure.

Even if based on a prohibited ground, the majority held that the comedian's comments did not incite others to vilify the complainant or to detest his humanity, nor were they likely to lead to discriminatory treatment.

Four dissenting justices would have dismissed the appeal, finding that the comments constituted a discriminatory interference with the complainant's right to dignity as a child with a disability whose harm was broadly disseminated and deeply harmful.

A unionized health authority employee was suspended for attending work under the influence of alcohol.

After disclosing her alcohol addiction and refusing a last-chance abstinence agreement, the employer terminated her employment; her union grieved and she was reinstated on similar terms, then terminated again for allegedly breaching those terms.

The employee filed a human rights complaint alleging failure to accommodate her disability, and a human rights adjudicator assumed jurisdiction and found discrimination.

The majority held that Manitoba's mandatory dispute resolution clause in The Labour Relations Act confers exclusive jurisdiction on the labour arbitrator over all disputes arising from the collective agreement, and that The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the human rights adjudicator over such disputes.

The appeal was allowed and the reviewing judge's order setting aside the adjudicator's decision was reinstated.

The appellant media organization sought to set aside an indefinite publication ban ordered by the Manitoba Court of Appeal in connection with a sealed affidavit filed in criminal proceedings involving an alleged miscarriage of justice.

The Court of Appeal declined to hear the motion, holding that its jurisdiction was exhausted after it entered its formal judgment on the merits.

The majority of the Supreme Court held that courts retain supervisory jurisdiction over their court records — including the power to vary or set aside publication bans and sealing orders — even after entering formal judgment on the merits, as this authority exists independently of the doctrine of functus officio.

The majority allowed the appeal from the 2019 Jurisdiction Judgment and remanded the matter to the Court of Appeal to decide the motion on its merits.

The appeal from the 2018 Publication Ban Judgment was adjourned sine die pending that determination.

Abella J. dissented, concluding that the appellant's undue delay in bringing its motion was determinative and both appeals should be dismissed.

A young person convicted of sexual assault appealed on the basis that the verdict was unreasonable, arguing the trial judge illogically accepted selective parts of the accused's evidence while rejecting others due to intoxication.

The majority held the verdict was reasonable, finding the trial judge provided sound reasons for accepting some portions of the accused's evidence while rejecting others.

The appellant also challenged the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which denies young persons the automatic appeal rights available to adults under s. 691 of the Criminal Code.

The majority upheld s. 37(10) as consistent with ss. 7 and 15 of the Charter, while Abella J. (with Karakatsanis and Martin JJ.) found it to be an unjustified breach of s. 15.

The appeal was dismissed, with Côté J. dissenting on the reasonableness of the verdict and declining to address the constitutional questions as moot.

An individual found not criminally responsible on account of mental disorder in respect of sexual offences, and subsequently granted an absolute discharge by the provincial review board, challenged the provincial sex offender registry regime on equality grounds.

The majority held that the regime drew discriminatory distinctions on the basis of mental disability by denying those found not criminally responsible any opportunity for exemption or removal from the registry, in contrast to mechanisms available to those found guilty, and that the infringement was not justified under section 1.

The Court affirmed a tailored declaration of invalidity limited to those found not criminally responsible who had received an absolute discharge, suspended for twelve months, with the respondent granted an individual exemption from the suspension.

The concurring reasons of Rowe J. would have reaffirmed the Schachter framework for suspended declarations as grounded in rule-of-law considerations rather than adopting the majority's principled-discretion approach.

The partial dissent of Côté and Brown JJ. agreed on the section 15(1) breach and the suspension but would have grounded the suspension solely in the rule of law and declined to grant an individual exemption, which in their view exceeded the institutional competence of the Court and raised horizontal unfairness concerns.

The Crown appealed a Court of Appeal decision setting aside the accused's conviction for sexual assault of a complainant with an intellectual and developmental disability, on the basis that the trial judge's reasons were insufficient.

The Court of Appeal majority found that the trial judge had failed to address the reliability of the complainant's evidence in light of expert evidence regarding her suggestibility, and had failed to provide reasons for rejecting the defence evidence.

The dissenting judge of the Court of Appeal held that the trial judge's reasons permitted meaningful appellate review.

The Supreme Court allowed the appeal, restoring the conviction, and cautioned that courts should focus on the individual's actual capacities rather than over-relying on expert evidence attributing general characteristics to persons with disabilities, as such over-reliance can perpetuate harmful myths and stereotypes and create barriers to access to justice.

The appellants sought to restore mandatory minimum fines imposed on a corporation under Quebec's Building Act after the Court of Appeal held that s. 12 of the Canadian Charter of Rights and Freedoms could apply to corporations.

All nine justices of the Supreme Court of Canada allowed the appeal, unanimously concluding that s. 12 does not protect corporations from cruel and unusual treatment or punishment.

The majority, writing jointly through Brown and Rowe JJ., held that the text 'cruel and unusual' inherently denotes a protection only human beings can enjoy, and that the concept of human dignity anchoring s. 12 is inextricably linked to natural persons.

Abella J., concurring with the result on behalf of three justices, reached the same conclusion through a broader purposive analysis emphasising the human-dignity foundation of s. 12, while cautioning against placing undue primacy on textual analysis or erecting barriers to the use of international and comparative law sources.

Kasirer J. concurred briefly, agreeing with the dissenting Court of Appeal judge that it would distort the ordinary meaning of the word 'cruel' to say that a corporate entity could be subjected to it.

Three retired female members of the Royal Canadian Mounted Police commenced a constitutional application challenging pension provisions that prevented job-sharing members from purchasing full-time pension credits for their service, a benefit available to members on unpaid leave.

The majority of the Court held that the pension plan's treatment of job-sharers created a distinction based on the enumerated ground of sex, as the program was disproportionately composed of women with childcare responsibilities.

The Court found that this arrangement perpetuated a long-standing source of economic disadvantage to women — gender biases embedded in pension plans historically designed for full-time male employees — thereby establishing a prima facie breach of s. 15(1) of the Canadian Charter of Rights and Freedoms.

The Attorney General failed to demonstrate a pressing and substantial objective capable of justifying the limitation under s. 1 of the Charter.

The Court granted a declaration that the inability of full-time RCMP members who temporarily reduced working hours under a job-sharing agreement to purchase full-time pension credit for that service violated their s. 15(1) equality rights.

The appeal was allowed with costs throughout, with three justices dissenting on the application of the equality framework and the sufficiency of causal nexus.

The appellant challenged the Quebec Court of Appeal's opinion that ss. 1 to 7 of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, exceeded Parliament's criminal law power under s. 91(27) of the Constitution Act, 1867.

The majority held that the pith and substance of the impugned provisions — prohibiting compelled genetic testing and non-consensual use or disclosure of genetic test results in connection with contracting and the provision of goods and services — was a valid exercise of the criminal law power, as the provisions respond to a reasoned apprehension of harm to autonomy, privacy, equality, and public health.

A concurring minority agreed on the result but characterized the pith and substance more narrowly as protecting health by giving individuals control over the intimate information revealed by genetic testing.

The dissent would have dismissed the appeal on the basis that the impugned provisions lacked a well-defined threat and adequate evidentiary foundation to constitute a valid criminal law purpose, falling instead within provincial jurisdiction over property and civil rights under s. 92(13).

The appellants, the sole French-language school board in British Columbia and associated parents' federation and individual rights holders, brought a constitutional challenge alleging systemic underfunding of minority language education and inadequate facilities in numerous communities, contrary to s. 23 of the Canadian Charter of Rights and Freedoms.

The majority clarified the sliding-scale framework for situating the number of minority language students so as to determine the level of educational services warranted, introducing a province-wide comparative presumption of pedagogical and cost appropriateness when majority language schools of comparable size exist elsewhere in the province.

The majority further held that substantive equivalence — not proportionality — is the applicable standard for assessing the quality of the educational experience throughout the sliding scale, and that infringements of s. 23 are subject to a particularly stringent justification standard under s. 1, such that the fair and rational allocation of public funds does not constitute a pressing and substantial objective.

The Court held that Mackin immunity from Charter damages does not extend to government policies infringing s. 23, and restored the trial judge's award of $6 million for the transportation funding freeze and ordered $1.1 million in additional damages for the Annual Facilities Grant Rural Factor breach.

Brown and Rowe JJ. dissented in part, rejecting the province-wide presumption as inconsistent with settled jurisprudence and as compressing the middle of the sliding scale, though agreeing on substantive equivalence, the invalidity of a purely financial s. 1 objective, and the appropriateness of Charter damages in the s. 23 context.

Three Eritrean workers alleged they were conscripted into forced labour at a mine in Eritrea owned by Canadian corporation Nevsun Resources Ltd. and subjected to violent, cruel, inhuman and degrading treatment.

The workers commenced proceedings in British Columbia seeking damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity, as well as domestic torts.

Nevsun brought a motion to strike the pleadings on the basis of the act of state doctrine and on the basis that the customary international law claims had no reasonable prospect of success.

The majority (Abella J., Wagner C.J., Karakatsanis, Gascon and Martin JJ.) dismissed the appeal, holding that the act of state doctrine does not form part of Canadian common law and that it was not plain and obvious that the customary international law claims were bound to fail.

Brown and Rowe JJ. dissented in part, agreeing on the act of state doctrine but concluding the customary international law claims were bound to fail.

Côté J. (Moldaver J. concurring) dissented in full, holding the claims were not justiciable because they required a determination that Eritrea had violated international law.

The appellant, a subway user, was arrested and searched by a police officer after she refused to hold an escalator handrail and declined to identify herself.

The officer, designated as a subway inspector by the transit authority, had been trained that failure to hold the handrail was an offence under a municipal by-law.

The Supreme Court held that the officer committed a civil fault under art. 1457 C.C.Q. because a reasonable police officer would have recognized that the pictogram was merely a safety advisory, not an obligation under the by-law.

The transit authority was found directly liable for providing legally incorrect training and also liable as mandator for the officer's fault.

The victim bore no share of the liability, as she was entitled to refuse to comply with an unlawful order.

Damages of $20,000 were awarded, apportioned equally between the transit authority and the officer.

The appellant was arrested by Ontario Provincial Police officers while walking to a counter-protest flag rally, having committed no offence and presenting no threat of violence.

The police relied on a purported common law power to arrest someone acting lawfully in order to prevent an apprehended breach of the peace by others.

Applying the ancillary powers doctrine, the Court held that no such common law power exists: the power is not reasonably necessary because statutory arrest powers already address situations where individuals resist or obstruct officers taking less intrusive measures, and effectiveness of a police action alone cannot justify an arrest if less intrusive means were available.

The Court restored the trial judge's award of damages for battery, wrongful arrest and false imprisonment, and found no new trial was warranted on the issue of excessive force because the arrest itself was unlawful.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

The applicant brought a motion to stay an individual exemption granted by the Ontario Court of Appeal, which had exempted the respondent from a 12-month suspension of a declaration of invalidity striking down sex offender registry provisions as unconstitutional in their application to persons found not criminally responsible by reason of mental disorder and granted an absolute discharge.

The applicant sought the stay pending disposition of a leave to appeal application.

The single judge found no special circumstances warranting re-examination of the Court of Appeal's prior refusal to grant the same stay.

The applicant also failed to establish a tenable case for irreparable harm, as the respondent's exemplary 17-year track record provided cogent evidence of minimal risk of reoffending, and there was no apparent reason to deprive the respondent of his s. 15(1) Charter right in the interim.

Motion dismissed without costs.

The appellant, a young racialized man, was gathered with four others in a private backyard at a Toronto housing co-operative when three police officers entered without warrant, consent, or warning and immediately questioned the men, demanding identification.

The appellant fled when asked what was in his satchel and was arrested in possession of a firearm, drugs, and cash.

The majority held that the arbitrary detention crystallized the moment police entered the backyard, not merely when they asked about the satchel, applying the Grant framework with particular attention to the racialized context and private-property setting; the resulting s. 9 breach was serious and the evidence was excluded under s. 24(2).

The dissent would have found the detention began only when the officer directed inquiry at the appellant, and in any event would have admitted the evidence given the trial judge's unchallenged findings that the police acted in good faith with legitimate investigatory purposes and the seriousness of the offences.