To the right are
of the work of the
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
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
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
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.
Majority 3 3 5 3 4 1 4 6
Total Judgments 10 12 11 8 12 11 20 13 8 4
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— By Cristin Schmitz
*Includes unanimous brief oral judgments delivered as senior judge of the panel.