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Karakatsanis played major role for court
By Cristin Schmitz
February 17 2017 issue

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The most majoritarian judge on Canada’s top court in 2016 was Justice Andromache Karakatsanis —who was on the prevailing side in every divided case on which she sat, a Lawyers Weekly analysis of the nine judges’ voting patterns reveals.

Also at the core of most of the majorities at the top court last year were Chief Justice Beverley McLachlin, who agreed with the final outcome in 96 per cent of the split cases on which she sat (23 of 24 appeals), and Justices Thomas Cromwell (now retired — 95 per cent), Richard Wagner (89 per cent), Clément Gascon (84 per cent) and Michael Moldaver (78 per cent). (See table 1).

Justices Rosalie Abella and Russell Brown were part of the majority in about two-thirds of the split cases they participated in, but both also dissented often.

The court’s “great dissenter” (no one came close to her) was Justice Suzanne Côté, who dissented (or partly dissented) in 57 cent of the split cases on which she sat (i.e. in 16 of the 28 appeals in which the court generated non-unanimous reasons). (See table 2). The high-powered ex-civil litigator from Montreal, who joined the court directly from the Quebec bar in 2014, also wrote, or co-wrote, six unanimous or majority judgments. Notably of the 22 cases last year in which the judges divided over the appeal’s outcome (as opposed to only in their reasons for judgment), few were close votes. The narrowly divided judgments included a medical negligence case on causation (4-3) and a case about the proper approach to determining the standard of review when there is a statutory appeal from a tribunal (5-4).

The court was more fractured, however, when it set out the law in its judgments. Indeed in six of the cases the judges decided unanimously, the judges wrote two, and sometimes, three opinions.

For example, in one of the most important judgments of the year, R. v. Jordan 2016 SCC 27, the judges split 5-4 in their reasons over how to analyze violations of the Charter 11(b) right to trial within a reasonable time. They also wrote three separate opinions in a 7-0 judgment addressing the standard of legislative specificity required for a statute to abrogate solicitor-client privilege: Alberta (Information and Privacy Commissioner) v. University of Calgary 2016 SCC 53. When the judges disagreed on an appeal’s outcome, opinions could multiply even more. For example, there were four opinions in the 6-3 administrative law ruling in Wilson v. Atomic Energy of Canada Ltd. 2016 SCC 29 (including two concurrences and a dissent).

Some highlights of the jurisprudence in 2016, by judge:

Rosalie Silberman Abella, 70

The court’s senior puisne judge remains a force to be reckoned with after 13 years there, whether speaking for the court or in prescient dissent in areas such as labour, constitutional and administrative law. In obiter, in Wilson she started an important conversation about reducing from two to one the Dunsmuir standards for substantive review of administrative decisions — i.e. collapsing “correctness” into general “reasonableness.” With characteristic rhetorical flair, she also wrote the 9-0 landmark, Daniels v. Canada (Indian Affairs and Northern Development) 2016 SCC 12, recognizing Metis and non-status Indians as “Indians” under s. 91(24) of the Constitution Act, 1867.

Russell Brown, 51

Appointed in September 2015, the torts author and ex-University of Alberta law professor hit the ground running, writing or co-writing no less than seven unanimous or majority opinions and five dissents. A prolific conservative blogger in his former life, he retained his colourful style beginning (in a bow to Lord Denning) the court’s ruling on the dry-as-dust topic of the tariff classification of hockey gloves with: “In wintertime ice hockey is the delight of everyone.” His majority ruling in Krayzel Corp. v. Equitable Trust Co. 2016 SCC 18 put teeth into the federal Interest Act’s s. 8 prohibition against hiking mortgage interest when borrowers fall into arrears, while B.C. (WCAT) v. Fraser Health Authority 2016 SCC 25 clarified in a workers’ compensation case the law of causation and standard of review.

Suzanne Côté, 58

Her 17 judgments included a half dozen for the court, and 10 vigorous dissents. Together with Justice Moldaver, she wrote World Bank Group v. Wallace 2016 SCC 15, a 9-0 judgment of global import affirming that key immunities guaranteed by an international treaty — signed by Canada and 187 other nations — shield two World Bank entities from domestic court orders to produce personnel or records in criminal prosecutions, including information relating to anonymous informants.

Thomas Cromwell, 64

A cornerstone of the court during his nearly eight years there, the former Dalhousie law professor who retired last September did not slow down in 2016. He clarified the law of infanticide in R. v. Borowiec 2016 SCC 11; authored Endean v. British Columbia 2016 SCC 42 which gave case management judges broad scope to creatively ensure the efficient and effective management of class actions; and raised eyebrows by holding for the court, in R. v. D.L.W. 2016 SCC 22, that the crime of “bestiality” does not cover (and never did) non-penetrative sexual activity between humans and animals.

Clément Gascon, 56

The commercial law expert wrote many judgments for the court, including co-writing with Justice Wagner Canada (National Revenue) v. Thompson 2016 SCC 21, which declared professional secrecy “a civil right of supreme importance in the Canadian justice system” and struck down the tax man’s powers to audit the solicitor-client privileged accounting records of legal advisers as an unjustified violation of the Charter’s s. 8 prohibition against unreasonable search and seizure. In Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval 2016 SCC 8, he held for the majority that reasonableness is generally the standard of review for arbitral decisions.

Andromache Karakatsanis, 61

The versatile former top Ontario public servant again turned her hand to both civil and criminal judgments. She co-authored the criminal law blockbuster R. v. Jordan, and co-wrote with Justices Wagner and Côté Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General) 2016 SCC 39, which interpreted and applied, for the first time, the principle of judicial independence, and its guarantee of financial security, in the context of a broad judicial reform that cut the pay and jurisdiction of certain Quebec justices of the peace. Her majority judgment in Windsor (City) v. Canadian Transit Co. 2016 SCC 54 held that local governments may use local courts to enforce municipal bylaws against federal undertakings and other federal entities.

Beverley McLachlin, 73

After nearly 28 years on the court, and as its longest serving chief justice (17 years and counting), she runs the court efficiently and remains an intellectual leader. Her judgments for the court last year included the military justice ruling R. v. Cawthorne 2016 SCC 32 — upholding the constitutionality of the National Defence Act provision empowering the Defence minister to appeal from decisions of a courts martial or Court Martial Appeal Court. For the court, she also warned against excessively punitive and overbroad sentencing initiatives and struck down a one-year mandatory minimum sentence for possession of drugs for trafficking and a Criminal Code restriction on credit judges can give to offenders for the time spent in pre-sentence custody: R. v. Lloyd 2016 SCC 13, and R. v. Safarzadeh-Markhali 2016 SCC 14.

Michael Moldaver, 69

The court’s expert, and frequent heavy lifter, in criminal law led the way in several cases in reinvigorating the s. 11(b) Charter right to trial within a reasonable time. He co-wrote Jordan with Justices Karakatsanis and Brown — giving lower courts a new analytical framework for robust s. 11(b) enforcement and spurring governments to bring on more Crowns and other resources to fix the sclerotic justice system for the public’s benefit. He also set out a test, and guidelines, for when and how police can take genital DNA swabs from sexual assault suspects as part of a newly expanded search incident to arrest power: R. v. Saeed 2016 SCC 24.

Richard Wagner, 59

The court’s senior Quebec judge wrote or co-wrote, eight judgments for the court — more than any other judge except Justice Gascon. The pair agreed often, and co-wrote Canada (Attorney General) v. Chambre des notaires du Québec 2016 SCC 20, which unanimously declared unconstitutional — as against notaries and lawyers in their capacity as legal advisers — the tax man’s sweeping power to require “any person” to provide information or documents for any purpose related to the administration of the Income Tax Act. He also co-wrote with Justice Côté Rogers Communications Inc. v .Châteauguay (City) 2016 SCC 23 which reaffirmed Parliament’s exclusive jurisdiction over radiocommunication.

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