Carissima Mathen

From the sanctity of the Grizzly Bear spirit to the more secular sanctity of unimpeded access to cheap beer, the Supreme Court of Canada spent 2017 wrestling with quintessentially Canadian questions. As the departure of Chief Justice Beverley McLachlin marks the end of an era at the Court, constitutional scholar and Court-watcher Carissima Mathen looks back at an eventful year and lays out the stakes ahead. 

At the end of what has been a barnburner year for the Supreme Court of Canada, it’s worth taking a moment to reflect on the various issues that have shaped this profoundly important institution, and to ponder what lies ahead.

As ever, the Court grappled with extraordinarily important issues. Two of the best examples are Ktunaxa v. British Columbia and R. v. Comeau.

Ktunaxa involved a 26-year dispute over the development of a ski resort in Jumbo Valley, B.C. Two groups—the Shuswap and the Ktunaxa—claimed that the project would impair their Aboriginal rights guaranteed under the Constitution Act 1982. The B.C. government duly entered into negotiations over everything from environmental and species protection to financial compensation. Eventually, the Shuswap were satisfied but the Ktunaxa were not. In 2009, the Ktunaxa advised the government that any permanent human habitation or structures would destroy the group’s connection with a spirit (Grizzly Bear) in the area, and render their songs and religious ceremonies meaningless. Such a result, they said, would offend section 2(a) of the Charter, which guarantees everyone “freedom of conscience and religion”.

The Ktunaxa case posed a novel question: does religious freedom extend to physical places that a particular group considers “sacred”? In the past, the Court has articulated such a broad approach to section 2(a) that it would appear to include such a claim—although the right would then be subject to “reasonable limits” under the Charter’s Section 1.

In its November ruling, the Court decided that the prospect of balancing such a religious claim against other interests was a step too far. It ruled 7-2 that, while the Ktunaxa people have a constitutional right to manifest their belief in Grizzly Bear Spirit, the Charter did not impose on the state a corresponding duty to protect that spirit. The Court went on to find, unanimously, that the B.C. minister’s decision was reasonable: it gave due consideration to the various claims and interests, and thereby had fulfilled the state’s responsibility, in Indigenous claims, to always act in accordance with “the honour of the Crown.”

Ktunaxa provoked criticism. The  majority’s analysis suggests a retrenchment from a decade-old highly liberal approach to freedom of religion. Some have also pointed out that an approach to section 2(a) that rules out protection for “sites” may have disparate effects on Indigenous peoples who manifest particularly deep connections with land or other physical structures.

Another significant appeal was Comeau v. The Queen, or, as it is known, the “free the beer” case. In 2012, the New Brunswick government charged Gérard Comeau, a retired NB Power lineman, with possession of unlawful quantities of alcohol that he had purchased in Quebec and brought back to his home in Tracadie. At trial, Comeau advanced an audacious argument: the provincial law ran afoul of section 121 of the Constitution Act 1867. That clause provides that “articles of manufacture” from one province “shall be admitted free” into all of the others.  Despite long-standing case law confining the scope of the clause to actual tariffs or duties, the trial judge ruled that section 121 should be read to encompass non-tariff barriers as well. On that basis, he found the provincial offence to be invalid.

After the New Brunswick Court of Appeal refused to adjudicate the matter, the Supreme Court was forced to weigh in. At the hearing on December 6-7, nine provinces and two territories participated—a sign that a case is of truly national import. All of them, joined by the Attorney General of Canada, urged the Court not to expand section 121’s meaning. Doing so, they argued, would “end federalism as we know it.” Comeau’s counsel, supported by numerous interveners ranging from the Canadian Chamber of Commerce to Federal Express, defended the trial decision. They argued that the “original intent” of section 121 had been subverted by decades of regional and industry-specific protectionism. If the trial decision is upheld, it could put at risk dozens of provincial laws affecting everything from agricultural marketing to e-commerce. The Supreme Court, though, seemed skeptical of the lower court decision; and the judges noted that a number of the arguments in its favour were rooted in policy choices that, no matter how sound, are not mandated by the 1867 Constitution. The Court has reserved the matter, and a decision is expected sometime in 2018.

The Comeau appeal has the distinction of being the final appeal presided over by Chief Justice Beverley McLachlin. Her departure is easily the Court’s most significant change in decades. First appointed to the Court in 1989, McLachlin quickly became one of its most important voices. In 2000, she was appointed as the Court’s first female chief justice—one of the first women in the world to hold such a post on an apex court.

It is difficult to overstate McLachlin’s influence. She has written dozens of landmark rulings in virtually every area including federalism, the Charter, Aboriginal rights, and criminal law. She crafted the approach to the country’s current rape shield laws which largely have withstood the test of time. She was an early dissenter (and rights defender) in Charter decisions such as R. v. Keegstra, which dealt with hate speech; and R v. Rodriguez, which upheld the criminal prohibition against assisted suicide (a ruling she helped to overturn in 2015).

McLachlin’s departure thrust two choices on Prime Minister Justin Trudeau: filling her seat, and selecting her successor as chief justice. Both require careful negotiation of traditions and political expectations, not to mention the Court’s actual needs. A sense of the struggle can be seen in the reaction to Trudeau’s choice of Alberta judge Sheilah Martin to fill McLachlin’s “Western” seat. A hugely talented scholar, advocate and jurist, Justice Martin—the second appointee named under a new nomination process that includes an independent advisory board headed by former Prime Minister Kim Campbell—exemplifies legal excellence and a deep commitment to public service. It is hard to think of a more qualified candidate, and almost no one has criticized her directly. But many did express profound disappointment at the Prime Minister’s failure to select an Indigenous person. In truth, it is increasingly difficult to explain how, in 142 years, the Court has never had a non-white jurist (something the United States achieved fifty years ago).

With respect to selecting a Chief Justice, Trudeau faced competing traditions.  One rotates the position between common and civil law jurists —in this case, favouring one of the three Quebec judges on the Court.  The other gives the nod to the most senior puisne judge. On December 12, Trudeau announced that Quebec jurist Richard Wagner (appointed to the Court in 2012) would assume the top spot.  At 60, the charming and forthright Wagner could occupy the position for 15 years.

Wagner is sure to continue McLachlin’s tradition of public engagement and her various initiatives to render the Court more understandable to ordinary citizens. In his new role, he also will have to contend with numerous appeals of damnable complexity including: Saskatchewan’s objection to the federal carbon tax; Jason Kenney’s musings about using a provincial referendum to force a rethink of the equalization formula; and the ongoing Charter challenge to Quebec’s anti-niqab law. The departing chief justice was a genius at navigating the most controversial issues of the day, including striking down legislation, while maintaining the confidence of the vast majority of Canadians. Any executive actor foolish enough to tussle with her invariably got the worst of it, Stephen Harper being the most prominent example when the Court declined to seat one of his nominees, Marc Nadon, in 2014. One hopes that the Court will stay true to McLachlin’s example, performing its essential constitutional function for the benefit of all Canadians for many decades to come.

Contributing writer Carissima Mathen is Vice Dean (Academic) at the University of Ottawa Faculty of Common Law. carissima.mathen@uottawa.ca