A Criminal Mind: What’s in store for the Supreme Court?

For those of us who intently watch the Supreme Court of Canada, 2016 was not a banner year for criminal law. (That is, with one big exception.)

Overall, the SCC issued just 56 decisions in 2016. From what I can tell, this is the court’s second-smallest annual output in the modern era.

More importantly — at least when it comes to my purposes — of those 56 decisions, 23 were in criminal cases. But if we take away the 11 brief oral decisions issued from the bench, that leaves just 12 fully reasoned written judgments. That is a low total.

And, of these, few were particularly memorable.

Granted, R. v. Anthony-Cook provided some long-awaited guidance on joint submissions. And R. v. Villaroman clarified the proper approach to circumstantial evidence. But while providing helpful restatements, neither of these changed much of anything. However, one case did change a lot.

R. v. Jordan, which rewrote the rules for unreasonable delay under s. 11(b) of the Charter, has already had a huge impact on how the criminal courts process cases, and its impact is certain only to deepen in the coming year.

The “transitional period” for pre-Jordan charges still in the system will comprise an ever-smaller proportion of the courts’ case flow.

The hard caps set by Jordan will more and more be the reality to which courts, Crowns and defence counsel will have to orient themselves. I expect that the litigation action will be in the judicial definition of what counts as an “exceptional circumstance” in the context of all the scenarios not considered explicitly in Jordan.

With significant cases being stayed for delay — including two murder cases I’m aware of — it won’t be long until the courts of appeal will need to sort out what it all means. The Supreme Court will eventually need to weigh in as well. But I expect that won’t happen in 2017.

I am hard-pressed to identify many criminal law blockbusters likely to be argued in the year ahead. It’s too early to say whether the court’s overall criminal law output will exceed 2016’s languid pace, but it’s clear that the flood of challenges to the Harper tough-on-crime agenda has largely dried up. These accounted for some of the court’s most significant criminal law decisions over the past decade.

The Liberal government has introduced legislative change in respect of some provisions that had generated a lot of litigation (the victim fine surcharge comes to mind) and committed to making reforms in respect of others (marijuana chief among them).

One of the most significant criminal law issues that’s going to confront the court early this year implicates society’s evolving relationship to technology rather than any particular government policy.

In R. v. Marakah, a divided Ontario Court of Appeal decided that a person who sends a text message to someone else retains no reasonable expectation of privacy in the content of that message. The B.C. Court of Appeal had earlier taken the contrary view, and it was joined by Justice Harry LaForme dissenting in Marakah.

The reality is that it’s harder than ever to distinguish between what people want to keep private and what they want to disseminate. Most people probably entertain contradictory feelings and expectations about what they commit to the electronic ether. It falls to the courts to make policy judgments about what level of privacy people ought to be entitled to insist upon, which may be a very different thing from what people actually expect.

On the extradition front, in the Republic of India v. Surjit Singh Badesha, et al., the court will review the decision of a divided B.C. Court of Appeal refusing to send a person to face trial in India. The majority thought there was too great a risk that the accused would be subject to torture or neglect by Indian authorities.

The fact that the person sought is accused of a particularly notorious “honour killing” only adds to the general interest in the case. On a doctrinal level, it pits the general trend toward a hands-off comity-based approach to extradition against the increasing pressure on the judiciary (since at least the Omar Khadr saga) to be more vigilant about human rights abuses abroad.

In R. v. Peers, the court will consider the limits of the s. 11(f) Charter right to a jury trial. On its face, that provision guarantees a jury trial in any case where the accused is liable to five years imprisonment. But what if the accused faces, say, four years and a $1-million fine? Does the fine somehow get added to the imprisonment to produce a total punishment that is “more severe” than five years in prison? I doubt it, but the court weighing in on a Charter provision that hasn’t yet received much judicial scrutiny is always a noteworthy occasion.

These are all significant if not exactly earth-shaking cases. My hope for 2017 is that most of the real action on criminal law policy will be in Parliament — where it really belongs. The federal government has been dragging its feet on some long-promised reforms. While marijuana legalization does appear to be in the offing, the delay in getting rid of Harper-era mandatory minimum sentences is a real concern.

Solving that problem — for instance, by way of a generally applicable “escape hatch clause” — is not impractical. I hope the federal government will resolve to tackle this and other eminently solvable issues in the year to come.

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Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at [email protected].