The Lawyers Weekly - January 14, 2011

A judge-by-judge

analysis

To the right are thumbnail sketches of the work of the Supreme Court’s nine judges in 2010.

— By Cristin Schmitz

Justice Abella voted with the majority in 10 of 16 divided cases on which she sat, and dissented six times — more than anyone except Justice Binnie. She wrote 10 opinions, including R. v. Conway, the 9-0 landmark which expanded administrative boards’ and tribunals’ Charter powers, and replaced the three-pronged Mills test with a more streamlined litmus test for discerning whether a board or tribunal is generally a “court of competent jurisdiction” to grant remedies under s. 24(1) of the Charter. Another majority judgment narrowed federal jurisdiction over labour relations in the aboriginal context. She dissented in favour of the media in separate cases which upheld: the mandatory ban on publishing information from bail hearings; and a 2002 search warrant and assistance order authorizing the RCMP to search and seize from the National Post records related to the so-called “Shawinigate” affair.

Of the 12 opinions Justice Binnie wrote, seven were for the majority or unanimous. He voted with the majority in nine of the 17 split cases he sat on, and dissented in six cases. However, dissents occasionally make the law. For example, in Tercon Contractors Ltd. v. B.C. Transportation and Highways, Justice Binnie disagreed with the case’s outcome, but the rest of the court endorsed his new three-step framework for analyzing when judges can intervene, at the plaintiff’s behest, to override liability limitation clauses or other contractual terms to which the plaintiff previously agreed.

Justice Binnie also wrote groundbreaking majority aboriginal law decisions which interpreted a modern comprehensive treaty for the first time, and explained the nature of governments’ duty to consult with aboriginal groups in modern treaty cases. His ruling in Canada (Attorney General) v. TeleZone Inc. established that people need not overturn an administrative decision of a federal board on judicial review in Federal Court before suing the Crown for damages with respect to that decision.

Justice Charron voted with the dissenters in two of the 16 split cases in which she participated. But she authored no dissents or concurrences. Rather she spoke for the court in 11 majority or unanimous judgments. She co-wrote with the chief justice the R. v. Sinclair trilogy which outlines the breadth of the Charter s. 10(b) right to counsel. She wrote other criminal law judgments, on such subjects as the confessions rule, jury instructions, and provocation.

She also clarified the muddled priority rules governing competing security interests taken under the Bank Act and the provincial personal property security statutes across the country.

The court’s newest judge was with the majority in all 14 of the split cases in which he participated. He wrote eight majority or unanimous judgments.

In Gavrila and Nemeth, he reconciled Canada’s obligation to extradite persons sought by foreign states for criminal prosecution or to serve sentences, with treaty duties not to return refugees to countries where they face persecution. He ruled for the court that the government of Prince Edward Island did not have a duty to protect the children residing in a private orphanage who were suing the province for alleged sexual and physical abuse. He also ruled that the Northwest Territories government, and a security company hired to guard a gold mine near Yellowknife during a bitter strike, were not negligent in failing to prevent the deaths of nine replacement workers who died in a bomb blast deliberately set by a striking miner.

Four SCC judges form the nucleus

SCC
Continued From Page 1

For example, in all but four of the 14 split cases they sat on together, Justices Cromwell, Charron and Rothstein voted the same way. The chief justice and Justice Rothstein also voted together in all but four of the 17 split decisions in which they participated. Together these four judges formed the nucleus of the majority in eight of the 17 cases in which the court divided in 2010.

Notably last year Justice Marie Deschamps joined this quartet in several closely decided cases, for example in rejecting the plea of the defence Bar to recognize a new American-style constitutional right for detainees to have their counsel present throughout police interviews.

On the criminal law front, Jus-
tices Cromwell, Charron, Des-
champs and Rothstein tilted the
common law in a more “law and
order” direction than was favoured,
for example in the area of search
and seizure, by Justices Morris
Fish, Ian Binnie and Louis LeBel.

What the Supreme Court’s judges wrote in 2010

 This table discloses the total number of unanimous, majority, dissenting and concurring opinions (including companion judgments) authored by each of the Supreme Court’s nine judges in 2010. There were also four judgments rendered per curiam.