Breaking ties

The SCC's deadlocked era comes to an end. Plus Canada’s shiny new online harms bill, the cost penalty for Canada’s first hallucinated case citations, and other updates spanning the country.

Excited about pricing innovation and don’t mind ticking off clients? Consider following Wendy’s lead. The fast food chain said it plans to implement “dynamic pricing” next year (think Uber’s surge pricing, but for hamburgers).

— Dylan Gibbs

TODAY'S DOCKET

7 min read

  • Saying goodbye to the SCC’s ties

  • Canada’s shiny new online harms bill

  • The cost penalty for Canada’s first hallucinated case citations

  • And other updates spanning the country

SCC

End of a (deadlocked) era

Two layers engaged in a tug-of-war, pulling on opposite sides of a rope

Justice Brown’s departure from the Supreme Court left an even number of judges working on several undecided appeals in the Court’s pipeline. For the most part, that didn’t affect the outcome of those cases, with two exceptions. On Friday, the Court is cleaning up the last remaining fallout from those exceptions, leaving the deadlocked era in the rearview mirror.

Exception #1 — committing to the tie: The Court released R. v. Sudbury in November. The Court rendered its decision “on equal division” (the judicial equivalent of, “Sorry y’all, we’re stuck with a tie”).

The common law gives a tie to the respondent, which made Sudbury the loser. Late last year, Sudbury asked the Court to reconsider the appeal with a full panel of judges. Team Sudbury (the entire Ontario construction industry) held its breath in anticipation.

After taking a fair bit of time to consider the request, the Court committed to the tie and denied Sudbury’s motion for a re-hearing earlier this month.

Exception #2 — bringing in backup: R. v. Bykovets is a different story. Seven judges heard the appeal originally (six without Justice Brown). Then — just before the Court released the Sudbury decision — the Court ordered a re-hearing.

The Court didn’t come right out and say the original six judges were tied, but that’s by far the most likely explanation. They could have gone the Sudbury route, adding another tie to the Court’s collection. But Bykovets is a criminal appeal where individual liberty is at stake. No one wants to send someone to jail on a tie.

The re-hearing took place in December, with all nine judges. And the Court’s decision comes out on Friday. The issue is whether an IP address attracts a reasonable expectation of privacy.

  • Given the Court seems to have been split down the middle before the re-hearing, expect a dissent from at least three judges.

  • Those who didn’t participate in the first hearing will cast the tie-breaking votes (Justices Kasirer, Rowe, and Moreau).

HEARSAY ROUNDUP

Canadiana

🤖 The lawyer who filed a brief with fake cases in British Columbia needs to personally pay a costs award, but not the special costs opposing counsel asked for. Justice Masuhara said special costs weren’t warranted, because the lawyer didn’t intentionally mislead the Court and already experienced significant negative publicity. But the lawyer’s conduct did force opposing counsel to expend extra effort, so she needs to pay the costs arising from that wasted effort.

The costs aren’t her only concern — BC’s Law Society is still investigating.

As this case has unfortunately made clear, generative AI is still no substitute for the professional expertise that the justice system requires of lawyers. Competence in the selection and use of any technology tools, including those powered by AI, is critical. The integrity of the justice system requires no less.

2024 BCSC 285, para 46

🔌 Nova Scotia is headed towards overhauling its electricity system. The province tabled legislation to create an independent system operator and split its existing Utility and Review Board into two new regulators.

📈 CCLA’s latest report on Canada’s bail system doesn’t paint an uplifting picture. Among the report’s conclusions — more than 70% of inmates in provincial and territorial jails are awaiting trial (a record high).

🏠 BC is introducing a house-flipping tax as part of continued efforts to improve the housing market. Buyers who sell within one year of purchase would face a 20% tax. The tax amount declines from 20% to 0% over the second year of ownership.

🎉 Alberta Premier Danielle Smith says the province is likely going to legislate political parties for municipal elections in Alberta’s major centres. Polling suggests most Albertans are opposed to the change.

🕵️ The Northwest Territories is getting close to adopting missing persons legislation. The legislation would let the RCMP apply to access records about a missing person, including phone records, employment records, and banking information. Before granting access, a court would need to consider whether the missing person is trying to avoid being found.

🤝 Nova Scotia introduced legislation to consolidate the town and county of Antigonish, despite a pending court challenge and objections raised by residents.

🏳️‍⚧️ Saskatchewan is seeking leave to appeal the decision that let UR Pride’s pronoun litigation continue in the Court of King’s Bench. That puts the King’s Bench litigation on hold for now.

A coalition of organizations representing Black workers in the federal public service is pursuing an international complaint against the Canadian Human Rights Commission. The groups allege the CHRC is discriminatory — they’re asking an international body to reconsider its accreditation.

LEGISLATION

Fighting harmful online content (take two)

Dark and creepy figure hovers menacingly behind a glowing computer screen in a dark basement

If you’ve been drum-rolling since 2021 (when the government promised to introduce online harms legislation within 100 days), you can finally give your arms a rest. The legislation made its debut on Monday, just 788 days or so after the government’s self-imposed deadline.

The legislation isn’t without issues, but the good news is that the extra deliberation time might have paid off — experts seem to be relatively happy with how the new law is drafted.

Swing and a miss: It’s not the government’s first crack at online harms. The last attempt attracted plenty of criticism, and it collapsed when the government called the 2021 election. That’s what prompted the promise of new legislation within 100 days of re-election.

New and improved: Experts are calling the new legislation (Bill C-63) a significant improvement over the government’s last attempt. It targets large social media companies that provide a platform for public communication, including porn sites. Under the proposed law, the targeted tech operators need to:

  • Act responsibly, taking measures to mitigate the risk of users being exposed to harmful content. That means letting people block other users and flag content. It also means coming up with a safety plan and sharing data with researchers.

  • Suppress harmful sexual content within 24 hours. The suppression obligation applies to intimate images distributed without consent and content that sexually victimizes a child (or a survivor of child sex offences).

  • Protect children, using design features the government imposes by regulation. The government hasn’t released the regulations, so we don’t know much about this duty yet.

It’s not all roses: The new law also targets hate speech. And those provisions are the ones attracting the most concern.

  • The proposed law creates a new criminal offence for hate crimes. Any offence motivated by hatred could carry up to a life sentence.

  • And it amends the Canadian Human Rights Act to allow hate speech complaints — the Act used to have a similar provision, but it was repealed in 2014. Critics say reintroducing hate speech complaints will chill free speech and potentially overwhelm the Human Rights Commission (given the sheer volume of abhorrent online communication).

The law’s enforcement powers are also raising eyebrows. A newly created Digital Safety Commission will have broad powers to suppress online content, gather evidence, hold private hearings, and levy punishments as high as 6% of an online operator’s global revenues.

Bill C-63 covers a lot of ground: If you want to learn more about the proposed changes and the issues flagged by experts, Michael Geist’s blog posts are an excellent starting point.

Dylan Gibbs

That’s all for today.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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