The Supreme Court of Canada (SCC) heard only 15 per cent of the 478 leave-to-appeal requests that it received last year – or about 30 cases in total, Canada’s leading constitutional law conference was told April 14.
“Is the court hearing enough appeals and is it hearing the right appeals?” Osgoode Hall Law School Professor Emerita Jamie Cameron told those attending the law school’s 26th annual Constitutional Cases conference. “That’s something that I think is an interesting question.”
For the first time since the pandemic, the law school’s flagship conference was held in person at Osgoode Professional Development’s downtown Toronto campus, bringing together about 100 of Canada’s foremost constitutional lawyers, law professors, judges and law students to discuss the SCC’s most significant decisions of 2022 and trending issues related to the country’s highest court. About 250 also attended online.
“It’s always a wonderful, rich buffet of patterns, trends and issues emerging from the Supreme Court of Canada’s jurisprudence from the prior year,” said Osgoode Professor Ben Berger, who co-organized the conference with Professors Sonia Lawrence and Emily Kidd White.
Cameron noted that 73 per cent of the Supreme Court’s total of 53 rulings in 2022 were related to criminal law, including two landmark decisions that struck down consecutive life sentences for those convicted of first-degree murder (R. v. Bissonnette 2022 SCC 23) and the Criminal Code‘s statutory restriction on the defence of intoxication for those who commit violent offences while in a state of self-induced intoxication (R. v. Brown 2022 SCC 18).
She said the court’s decision in Bissonnette, which restored the prior rule of 25 years of parole ineligibility for those convicted of first-degree murder, affected about 18 of Canada’s most notorious convicted mass murderers, including Quebec City mosque killer Alexandre Bissonnette.
“The decision was controversial for the families of victims,” she noted, “who responded by stating that this meant that ‘every life does not matter.’”
Overall in 2022, said Cameron, Justices Russell Brown (currently on leave), Andromache Karakatsanis and Sheilah Martin ruled most often in line with the Charter of Rights and Freedoms, while Chief Justice Richard Wagner and Justice Michael Moldaver, who retired in 2022, voted least often with the Charter. Justice Moldaver was replaced in September 2022 by Justice Michelle O’Bonsawin, the high court’s first Indigenous judge.
In the conference’s traditional Laskin Lecture, named after former chief justice and Osgoode alumnus Bora Laskin, guest speaker Dame Linda Colley, a prominent professor of history at Princeton University, reviewed some of the key ideas behind her 2021 book The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright Publishing Corp.) The lecture was co-sponsored with the York Centre for Public Law and Public Policy.
Panel discussions, which included some of Canada’s pre-eminent constitutional scholars and lawyers, tackled topics such as scrutinizing the Supreme Court with digital technology, the reach and range of judicial review, and police powers and the exclusion of evidence.
Originally spearheaded by former Osgoode dean Patrick Monahan, who currently sits as a judge with the Ontario Superior Court of Justice, the conference helps constitutional scholars and lawyers track general trends across cases that cover wildly different areas of law, said Lawrence.
“All constitutional cases – explicitly or implicitly – provide answers to critical questions about the institutional competence of courts versus legislatures,” she added. “Constitutional cases in Canada also have been part of how we have grappled with fundamental questions raised by the way this country was created, with respect to both our federal system and our founding on Indigenous lands.”