Law Times

Law Times • OcTOber 16, 2017 Page 7 www.lawtimesnews.com What's in store for the Supreme Court? BY MATTHEW GOURLAY T he fall term of the Supreme Court of Canada, which began Oct. 3 and continues through early December, will be Chief Justice Beverley McLachlin's last. She officially retires Dec. 15. Given her unparalleled longevity and inf luence, this is undoubt- edly a transitional moment for the court. To put it in perspective, the next longest- serving judge, Rosalie Abella, has been on the Court since 2004 — 13 years to McLachlin's 28. And the other seven judges were all appointed in 2011 or later. Accordingly, even though the chief justice's retirement will be an important milestone, most of the turnover from what observers usually think of as the "McLachlin Court" has already taken place. This is a very different group from the court of the 2000s that consolidated and refined the approach to the Charter first elaborated by the more fractious courts led by Brian Dickson and Antonio Lam- er. From a criminal law perspective, the McLachlin Court tended to be more con- sensus oriented than its predecessors and, in any event, was quite evenly balanced between more liberal and more conserva- tive voices, tacking right on some issues such as the Charter rights of detainees (Singh, Sinclair) and left on others such as mandatory minimum sentences (Nur, Lloyd). Few of the court's current members participated in the most significant crim- inal law decisions of the chief justice's tenure. As a result, it is difficult to pre- dict what direction the juris- prudence will take after her departure. Justices Michael Moldaver and Abella are known quantities, moderate- ly conservative and moder- ately liberal on criminal law issues, respectively. Of the others, much less can be con- fidently predicted. And, of course, the court is about to get a new member from the west and (presumably from among the current comple- ment) a new chief. Few people seem to have any real insight into the likely iden- tity of either. Those who do aren't saying so publicly. As alluded to above, a lot has happened in criminal law jurisprudence during McLachlin's tenure. Looking ahead to her final term, however, this fall doesn't seem to promise much in the way of criminal law blockbusters. Nothing remotely like Jordan, last year's landmark case on unreasonable de- lay, appears to be in the offing. Indeed, the case that's probably going to be watched most closely by criminal lawyers is not ac- tually a criminal case at all. The long-run- ning saga of Joe Groia and the Law Soci- ety of Upper Canada will finally reach its conclusion about 17 years after the court- room events in question took place. Back around the turn of this cen- tury, Groia behaved obstreperously in the course of defending a client charged with securities offences arising out of the collapse of Bre-X. He repeatedly made unfounded allegations of misconduct against the pros- ecution. Eventually, his cli- ent was acquitted, but Groia himself was brought up on law society charges that he committed the professional offence of incivility. I tend to think that the case's significance has been exaggerated by its notoriety. The Supreme Court itself has dealt twice with related issues of lawyers' conduct in the re- cent past. In Doré (2012), the court held that the Barreau du Québec was within its rights to discipline a lawyer for writing a rude letter to a judge. It sounded a note of caution, however, observing that "lawyers should not be expected to behave like ver- bal eunuchs." And earlier this year, in Jodoin, the court approved of a lower court ordering costs against a defence lawyer personally for having brought a baseless recusal mo- tion. My guess is that the court is likely to take a similarly deferential approach to the Groia case but that this isn't likely to prompt an avalanche of civility prosecu- tions as feared by the defence bar. After all, the law society has other pressing business on its agenda, such as the re- branding of "Upper Canada" to some- thing more hip and contemporary. One of the few important criminal law cases on the fall docket is the Wong case from British Columbia, which con- cerns the test to be applied when a con- victed person seeks to have a guilty plea overturned because they were unaware of the immigration consequences that at- tach to the conviction or sentence. More often that you might think, a non-citizen offender will learn only after pleading guilty that they are now subject to auto- matic deportation. The Ontario Court of Appeal has been relatively generous in its approach to re- viewing such convictions; the British Co- lumbia Court of Appeal has been more stringent. I would hope that the Supreme Court comes down in line with the Ontario approach given the extent to which un- awareness of such drastic consequences really does undermine the "informed" character of a plea. The rest of the fall docket features the usual assortment of criminal appeals taken by leave and as of right. Though none of them stands out as earth-shaking, it's always possible that a "sleeper" will emerge. Recall that the most cited criminal case in the history of the Supreme Court, R. v. W.(D.), [1991] 1 S.C.R. 742, the op- erative passages of which any criminal lawyer can recite from memory, arose as a humble appeal as of right. It was heard by a panel of only five judges. Significantly for the era that is about to end, McLachlin was one of them. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. Are courts of appeal becoming Bleak Houses? BY SCOTT ROLLWAGEN D ickens' classic Bleak House begins with a description of the chaotic, muddy and dark streets of mid-19 th -century London surrounding Lincoln's Inn Hall. It is a scene of indistinguishable confusion marked most profoundly by "fog everywhere." The fog highlights one of the book's themes of rootlessness and defeated expectations. This fog engulfs the Chancery courts, which is the central metaphor for the indeterminacy with which the novel's characters struggle. Recently, it has not been unusual to hear similar bitter criticisms about our justice system. Some of it emanates from disappointed appeal counsel unable to get any traction in an appeal court, having been stone- walled by an increasing tendency by appeal courts to strain to characterize the issues under appeal as man- dating deference. It is hard to say a court below got a question wrong when courts are recognizing fewer and fewer questions as being capable of having a right or wrong answer. There has in the last 15 years been a proliferation of jurisprudence whose subject matter is not the estab- lishment of legal standards to guide conduct but rather ways to resolve cases without establishing standards. Beginning in 2002 with Housen v. Nikolaisen and continuing through to the recent decision in Sat- tva Capital Corp. v. Creston Moly Corp, two of the most significant questions faced by litigants, namely standards of conduct (Housen) and the interpretation of contracts (Sattva) have been firmly established as primarily belonging to the foggy middle category of "mixed fact and law" questions. As a result, review of a lower court decision on these matters starts with the presumption that the appeal court will defer to them, with review being available only if palpable and over- riding error can be demonstrated or if the appellant can find a rare "extricable" issue of law that the lower court got wrong. There are some narrow exceptions. The interpre- tation of standard form contracts, after the Supreme Court of Canada's decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co, is now recognized as reviewable on a correctness standard. But the trend appears to evidence an appellate court aversion to standard setting. The high-water mark may well be the Supreme Court of Canada's decision in Teal Cedar Products Ltd. v. British Columbia, which in- volved a method of valuation mandated under British Columbia forestry legislation. One could be forgiven for thinking that this concerned an issue of law. Yet a majority of the court resolved most of the material is- sues as issues of mixed fact and law mandating defer- ence, reaffirming that "caution" should be applied be- fore recognizing an issue as an extricable issue of law having greater scope for appellate review. There are recent cases, however, where courts have not abandoned the task of standard setting. In Deslau- rier Custom Cabinets Inc. v. 1728106 Ontario Inc., the Ontario Court of Appeal resolved a case that it had already decided but that had been remanded to it for reconsideration by the Supreme Court of Canada after the Supreme Court's decision in Ledcor. That case was a claim by a tenant against its landlord for losses following a fire caused by a contractor per- forming repair work that was the landlord's responsi- bility. The tenant was required to — and did not — add the landlord as a named insured under the tenant's fire insurance policy. The lower court nevertheless granted summary judgment to the tenant by interpreting the covenant to insure in the particular lease in question as not excusing the landlord from liability for its own negligence. The Court of Appeal reversed the motions judge's decision on the basis that the motions judge erred in law in failing to apply established law holding that a covenant to insure under a lease operates as an assumption of risk by the covenantor. It then re- affirmed its decision on the same basis when re- manded to it to be resolved on the basis of the prin- ciples in Ledcor. The result here is instructive because the lease was not a standard form contract (and so outside of the correctness standard of review established in Ledcor). The court reaffirmed its previous decision because the failure to "apply" the assumption of risk case law was an extricable error of law that could still be reviewed on a correctness standard. The court's decision must surely be right, but ex- plaining exactly why is difficult to square with Sattva's caution against identifying extricable issues of law. The jurisprudence establishing that covenants to insure operate as an assumption of risk was established at a time when the consensus view still was that contract interpretation issues were issues of law. The Court of Appeal seemed to be aware of this problem by charac- terizing this jurisprudence not as establishing a "rule" but as establishing "principles" that should have guided the interpretation exercise. One problem, though, is how such new "principles" could ever come into existence in a world where is- sues of interpretation are issues of mixed fact and law. They can only come into being when higher courts, notwithstanding the trend requiring deference, regard themselves as being free to disagree with lower courts where, as a matter of principle, the higher court regards it as systemically important that a certain kind of con- tractual issue be resolved in a certain way. It is to be hoped that this emphasis on the impor- tance of legal principle will germinate into a more ro- bust approach to contracts that will escape the "fog" that has been rolling in. LT uScott Rollwagen is the research partner at Lenczner Slaght Royce Smith Griffin LLP. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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