Supreme Court fall preview

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Friend of the pod Nadia Effendi returns to talk us through the fall agenda of Canada’s top court. Topics include online gambling, price-fixing, religious freedom, prison lockdowns, the Ontario Place redevelopment, the federal assault weapons ban, and the theft of the Winston Churchill portrait from Ottawa’s Château Laurier.

Nadia is a partner at BLG in Toronto and a member of the CBA’s Federal Courts Bench and Bar Liaison Committee. She has appeared before the Supreme Court numerous times and clerked for Hon. Michel Bastarache.

Links:

• Atlantic Lottery Corporation, et al. v. Attorney General of Ontario
• NHK Spring Co., Ltd., et al. v. Tony Cheung, et al.
• John Vabuolas, et al. v. Information and Privacy Commissioner for British Columbia, et al.
• Durrell Diggs, et al. v. Attorney General of Nova Scotia, et al.
• Canadian National Railway Company v. Alberta Pacific Forest Industries Inc.
• Ontario Place Protectors v. His Majesty the King in Right of Ontario and Attorney General of Ontario
• Canadian Coalition for Firearm Rights, et al. v. Attorney General of Canada
• Jeffrey Wood v. His Majesty the King

Live and recorded Supreme Court hearings can be watched online.

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Alison

Good day, listeners. This is another episode of Verdicts & Voices, a legal current affairs podcast from the Canadian Bar Association. And I'm your host, Alison Crawford. I hope you're ready for another fantastic preview of the fall session of the Supreme Court of Canada. And as usual, our guest is court watcher extraordinaire Nadia Effendi. She's a partner at BLG in Toronto, and when she's not watching the court, Nadia is most likely presenting arguments at Canada's top court.

Nadia, it's wonderful to see you again and have you back with us. We have a lot to cover today.

Nadia Effendi

Thank you so much, Alison.

Alison

I think we should start with something that many of our listeners who aren't in Ottawa might not know: the Supreme Court of Canada has actually moved to a new location. It's close to where it was, across the street and a little further west. Have you seen it yet? Have you visited?

Nadia Effendi

I have not had the opportunity, but I'll be there in October. Well, November, actually. So I'm looking forward to it.

Alison

Yeah, I was supposed to go last week on a tour, and I haven't. But from my friends and my former co-workers at the Supreme Court, I know that they're loving the building. Some don't have the greatest views, but many other people have extremely amazing views of the inside and that wonderful foyer.

Now, that's not all that's new this fall session. There is a new judge on the bench, Justice Glenn Joyal. He's the former Chief Justice of the Court of King's Bench in Manitoba and was appointed after Justice Sheilah Martin announced her retirement earlier this year. And of course, we spoke about that the last time you were on the show. So what do you think our listeners should know about Justice Joyal?

Nadia Effendi

Well, first of all, they should know that he was appointed a judge of the Provincial Court. That's how he started his judicial career, before getting elevated to the Court of Appeal, and then he became the Chief Justice of the Court of King's Bench. So he has extensive experience as a judge, I would say, 28 years of judicial career. And frankly, he's presided over a variety of different cases, which will be helpful to his new career on the Supreme Court of Canada, which sees cases from criminal to admin to civil.

He's had several cases that are better known, I would say. There are a few of them that deal with the issue of delay caused by trial judges, and so there are a few of those cases that will be of interest to our criminal lawyers that appear in front of the SCC. So he has significant experience there. He's also dealt with cases related to the pandemic when he was in Manitoba. So I think it'll be interesting to see what place he takes at the court, Alison, and, you know, as we get to see him interacting with counsel in a very busy fall.

Alison

Well, I can tell you one thing, because I happen to know Justice Joyal from my own experience as a reporter and at the Supreme Court: he is a really curious person. He's super curious, and a lot of the changes he made at the Court of King's Bench were very bold changes. They kind of rattled the system a little bit and made a lot of changes that were also relevant to the people of the province. So I quite like that as well.

Look, the Supreme Court has received a fair bit of criticism over the last few years, since the pandemic essentially, about how few appeals the court is actually agreeing to hear. But this year, or at least this session, is a totally different story, isn't it?

Nadia Effendi

Yeah, I mean, in 2026, since the beginning of the year, the success rate has been over 13%, which is basically more than double the success rate on leave applications from the previous five years. And if you look at the areas of law in which the cases are being granted leave, what we see is that over 80% of the cases so far this year are in civil matters, not in criminal matters. So I think it's interesting to see. The court is obviously very busy, but there's a definite shift, I would say, in the number of cases where leave is granted.

Alison

Yeah. Well, let's get down to business and review some of these. The first case out of the gate is a case that's actually being heard today: Atlantic Lottery Corporation v. Attorney General of Ontario. How is the Atlantic Lottery Corporation taking on the Attorney General of Ontario?

Nadia Effendi

It's because they have intervened in a reference before the Ontario Court of Appeal as a coalition with other lottery corporations from BC, Saskatchewan and Manitoba. And what is this case about? Well, this case is about iGaming, frankly. Ontario's current iGaming model is conducted and managed by iGaming private operators here in Ontario, and is limited to players physically located in Ontario. But what Ontario is proposing here in this case is to add an international liquidity pool that would allow Ontario players and other participants in peer-to-peer games or betting tools to compete with international players while continuing to exclude players located elsewhere in Canada. So that is really the whole issue. Because as you may know, Alison, and our listeners would know, the Criminal Code has an exception that permits online gaming and betting involving players located in Canada. And so it provides an exception there as long as the province conducts and manages the lottery scheme that is in that province. So the whole question in this case is: what is the definition of “in that province”? And so a majority of the Ontario Court of Appeal answered the reference question by saying that yes, what Ontario was proposing to do was compliant with that exception, and the scheme would be “in that province.” And so that's what these lottery corporations are taking on. They argue that “in that province” ought to have a stricter territorial limit.

Alison

Yeah, I would imagine. But it also sounds like a lot of money could be involved for the province of Ontario.

Nadia Effendi

Well, I absolutely agree. And in fact, the province is saying, look, we're only able to really control... I mean, they say that about 20% of online gaming continues to be conducted in areas that are not regulated. So that's their attempt, I think, at trying to see whether or not, with this new system and opening it up to the international liquidity pool, they're able to, you know, comply with the Criminal Code and the exception. So we'll have to see.

Alison

Yeah. I don't want to say it, but I mean, maybe people are taking bets on that. Who knows?

Nadia Effendi

I will leave that to others.

Alison

Tomorrow the court will hear about a proposed class action relating to price fixing. So what happened here?

Nadia Effendi

Yeah, so this appeal basically arises from a proposed national class action that was brought by Tony Cheung and others against foreign manufacturers of hard disk drive suspension assemblies. And you may wonder what that is. This is an internal electromechanical part that holds a hard drive inside computers and gaming consoles. I had to take a look to see what that was, but that's what it's about. And here in this case, the respondents alleged that the manufacturers participated in a global cartel that inflated the price of suspension assemblies sold outside Canada, which were later built into hard drives and consumer electronics purchased by Canadian consumers and businesses. So the court will determine here whether Canadian courts can assume jurisdiction over an alleged foreign price-fixing class action on the basis that the price-fixing conspiracy had effects within Canada. So specifically, the court is really asked to interpret the Competition Act. Our colleagues in that bar will be very interested. And the question really is whether the section of the Competition Act can be used to recover civil damages for an alleged conspiracy formed and implemented abroad. So, very interesting issues stemming out of British Columbia, and we have several interveners in this case, about eight of them, that are interested in the debate.

Alison

Okay. And then closing out this week is a unique case about access to information and the Jehovah's Witnesses. What is the question that's before the court here?

Nadia Effendi

So the question before the court is really about the boundary between privacy rights and religious freedom. And specifically, the appeal asks the question of whether or not, in that particular case, the BC Personal Information Protection Act can require a Jehovah's Witnesses congregation to produce records containing their former members' personal information. And so here we had two former congregants who sought access to their personal information held by the congregation. The congregation refused. They made a complaint to the Privacy Commissioner, who ordered the production. And so the commissioner, the lower court, and the Court of Appeal all concluded that the access regime could be applied consistently with the Charter, with the Court of Appeal holding that any religious freedom concern could be properly balanced by an administrative discretion under the infamous Doré framework, which we've talked about before. So that's really what's at issue here. The congregation argues before the court that you need to apply the Oakes test instead of Doré. So I feel like it's déjà vu all over again, Alison, with this.

Alison

But the stakes are really high for every institution.

Nadia Effendi

Absolutely. I mean, the question really, again, as you can imagine, for this congregation, is whether or not, in every circumstance, if someone makes a request for personal information, on the balancing, the freedom of religion would get trumped by the privacy concerns of the individual. So it has really broad implications. But the geeks, you know, that love Doré and admin law will be paying attention to see whether the court changes that framework. I felt it was solid up until now, but who knows.

Alison

Yeah, well, hey, this podcast is for the geeks, after all. There's also a really interesting case coming up about correctional facilities and lockdowns: Durrell Diggs et al. v. the Attorney General of Nova Scotia. What can you tell us about the legal issue here?

Nadia Effendi

Yeah, I mean, this case is about habeas corpus, effectively. And as we know, habeas corpus requires a public authority detaining a person to bring them before a court to justify the legality of their detention. And if the detention is found to be unlawful, then the court must order their release. So in this particular case, we have two inmates who were remand inmates in the Central Nova Scotia Correctional Facility. It's known as the Burnside Jail. And the jail was experiencing significant staffing shortages. And so regularly they imposed facility-wide rotational lockdowns, where inmates spent substantially more time confined to their cells instead of receiving the usual 10 to 12 hours of daily out-of-cell time. And so Diggs brought a habeas corpus application, along with the other inmate, Wilband, alleging that these lockdowns were unlawfully depriving them of their residual liberty. And so again, here we have the court that's going to have to determine the scope of habeas corpus, and specifically whether it can be used to review institution-wide operational policy decisions, such as staffing shortages, or whether it is confined to very discrete, individualized detention decisions, which obviously will affect the use of the writ in the prison context.

Alison

This sounds, again, like it could have extremely broad implications depending on how the court rules.

Nadia Effendi

Absolutely, and I think you can see that by the number of interventions in this case, Alison. We have 15 interveners, four of the AGs and several civil liberties associations. So again, you know, wide implications depending on what the court decides to do.

Alison

Yeah. Now we're going to jump ahead to November 12. This is another case involving judicial review: CN Rail v. Alberta Pacific Forest Industries. And I know you are paying close attention to this one. How come?

Nadia Effendi

Well, I'm paying close attention to this one in part because I'm counsel for the appellant, Canadian National Railway, in this case. But it's also a very fascinating case about admin law and the right to legality review and the doctrine of adequate alternative remedies. And so this appeal concerns whether CN can obtain judicial review of factual findings made by the Canadian Transportation Agency. And so the issue deals with whether section 18.5 of the Federal Courts Act, together with section 40 of the Canada Transportation Act, bars judicial review because CN could instead petition the Governor in Council to vary the decision of the Agency. And so it's an interesting case, again, admin law, but it builds on the court's recent decision in Democracy Watch, where you'll remember, Alison, that there the court found that the Constitution guarantees legality review of all aspects of administrative decisions, and that privative clauses that purport to oust the court's jurisdiction to conduct judicial review are unconstitutional. So this is really kind of the next step. In this case, the court is also going to have to look at the interaction between the court's decision in Strickland, which deals with adequate alternative remedies, and this concept of the constitutional guarantee to legality review. So, a very interesting case, again, in the admin law world.

Alison

Yeah, and I did want to sort of keep those two cases involving judicial review together, but going back now to October 15, this is a case that I would imagine will be receiving a lot of media attention in Toronto. This is when the court will hear Ontario Place Protectors versus the Ontario government. And for those not at the centre of the universe in Toronto, Ontario Place was a popular entertainment and cultural destination for school groups and families and tourists, and many people have opposed its closure and the future plans to redevelop the area where it once stood. So again, many interveners here. Can you tell us a bit more about what the court will hear?

Nadia Effendi

Yeah, I mean, so this case really has the court looking into the constitutional limits of legislative immunity, clarifying the court's institutional role, I would say, and determining whether or not, under Canadian law, there's this concept of public trust doctrine capable of constraining legislative decisions. And as you've said, it relates to this provincially owned park, Ontario Place, and a few years ago the provincial government in Ontario enacted this statute to facilitate the redevelopment. And among other things, what it did is that it really vested specific property interests in the Crown, but also exempted Ontario Place from certain environmental assessment and heritage requirements, which obviously raised the ire of several community groups that then challenged that statute. And in particular, what they argued is that the provision in the act, which granted broad immunity to the Crown, was unconstitutional because it undermined the core jurisdiction of the courts when it comes to their supervisory role, and it also violated this as-yet-unrecognized public trust doctrine. So it's a very interesting case that deals with much broader constitutional principles. The court doesn't always deal with section 96, although we saw it touch upon it in Democracy Watch. So the court really will have to clarify how far legislators can go in using statutory immunity. Here, the Court of Appeal found that it was okay, that there was no issue, and that the statute was absolutely constitutional because the court was still allowed to exercise its judicial review power if it needed to. So we'll have to see.

Alison

This is one of those cases that really will interest the average person who's been following this, for sure. Now, another case that will sound familiar to many of our listeners relates to a federal cabinet decision in 2020 to prohibit those so-called military-style assault weapons. The Supreme Court will hear the Canadian Coalition for Firearm Rights and a few others versus the Attorney General of Canada, and this is over two days, November 8 and 9. So what is the question the judges are being asked to answer here?

Nadia Effendi

So, in this case, what the court is being asked to look at is whether or not this regulation that was enacted under the Criminal Code, which now prohibits over 1,500 so-called assault-style firearms, is basically ultra vires. In other words, what is being argued by the challengers is that the regulation is ultra vires the jurisdiction of the Governor in Council, and that it's unreasonable. And they also argue that it's unconstitutional under the Charter. And here what we have, and the reason it's over two days, is because the case started off with multiple challenges before the Federal Court, then the Federal Court of Appeal, and now we have four sets of appellants before the Supreme Court in these cases. And as I said, Alison, really the issue is about whether or not the regs are ultra vires the Governor in Council's authority to prohibit firearms. And what's behind that is that the provision in question provides that the Governor in Council, while it can prescribe certain firearms as prohibited firearms, cannot prohibit firearms that are reasonable for hunting and sporting uses. And as you know, there are several hundreds of thousands of people in this country who use firearms for hunting and sporting uses. And so that's the argument that's being made: whether or not the GIC's regs in this case are actually reasonable. And there's also a series of constitutional Charter arguments being raised. So it's an opportunity for the court to actually revisit the test that it set in Auer a few years ago. You may remember that's a case that dealt with the review of subordinate legislation like regulations. So this will give the court an opportunity to apply the Auer framework to criminal regulation, which it hadn't done before, and see how that might be applied here.

Alison

Yeah, and this one will certainly be a very emotional one, you know, a lot of emotions around this, and a lot of history as well when it comes to the very long history of trying to regulate firearms in Canada. Now, the next case will be of interest to anyone who followed the story of how Jeffrey Wood stole the famous “Roaring Lion” portrait of Winston Churchill, taken by Yousuf Karsh, from the lobby of the Château Laurier Hotel in downtown Ottawa. Now, I just have to say that when CBC Radio used to be on the top floor of the Château Laurier, and whenever we had fire drills, this is back in the mid-90s, Yousuf Karsh lived in that hotel. So we would walk by him and he'd be just standing there in his bathrobe, sort of looking around. He didn't have to come down with the rest of us. But yes, everyone who entered the hotel saw that portrait. And of course it was stolen, and Mr. Wood replaced the photo with a forgery that really no one noticed for a few months, and then sold the original in England. So he was sentenced to two years less a day. How did this case, which seems pretty cut and dried, end up before the Supreme Court of Canada?

Nadia Effendi

Yeah, well, the issue is actually pretty narrow. The issue in the case focuses on the appropriateness of applying foreign precedents in criminal sentencing. This is what it comes down to, really, at the end of the day. In this particular case, the sentencing judge sentenced Mr. Wood to incarceration, as you said, of two years less a day. He felt that a penitentiary sentence for the theft was appropriate in the circumstances, and he relied in part on international precedent, noting that there's not a lot of necessarily precedent in Canada for this type of theft. The majority of the Court of Appeal dismissed the appeal, but there was a dissent. And so here we are now before the Supreme Court of Canada. And really the issue has broader implications, I think, concerning sentencing decisions, about whether it's appropriate to consider foreign case law when establishing an appropriate range in the sentencing context.

Alison

That's pretty interesting, frankly.

Nadia Effendi

It is, it absolutely is. I don't think it has garnered as much attention. There are only a few interveners in the case, which these days, you know, it feels like every case has like a dozen of them. But I do think it has implications for these types of crime, right? Where you're looking at something that, you know, may not be as prevalent here but may exist elsewhere and has international ties.

Alison

I think France probably has more experience sentencing people for art theft. You know, there are probably a few jurisdictions with some valuable experience. Well, anyway, that's my civilian opinion. So thank you again, Nadia, for all of your details and for sharing your insights. They're very valuable to our listeners, and I love doing these look-aheads. So thank you again for joining us.

Nadia Effendi

Thank you so much, Alison.

Alison

I've been speaking with Nadia Effendi, who is a partner at BLG in Toronto. Everyone is welcome to watch a Supreme Court hearing. If you're in Ottawa, you can attend at the new digs at 344 Wellington Street. Every hearing is also broadcast live via the Supreme Court website, and Canada's parliamentary channel CPAC also streams it live online. And you can watch it too, if you want, later at your convenience.

Thanks for tuning in to a longer-than-usual Verdicts & Voices. These session previews with Nadia Effendi are always very popular. This podcast is brought to you by the Canadian Bar Association, and I'm your host, Alison Crawford. I hope to see you again next week.