⚖️ Deadlocked

TODAY’S DOCKET

The Supreme Court is in the spotlight again today after a busy week. Here’s what’s happening at the top court:

• Deadlocked judges

• Opioid class action appeal — coming soon

• Evidence from wrongful conviction hearing stays under wraps

PRACTICE & PROCEDURE

SCC deals with the fallout of losing a judge

The last two days have highlighted the effects of Russell Brown’s retirement on the Supreme Court. Yesterday, the Court ordered a re-hearing — likely because the judges were deadlocked without Brown’s participation. And today, the Court issued a truly “tied” decision, which hasn’t happened since 2000.

What happened: When Brown went on leave in February, he left behind 16 outstanding judgments — cases where he sat for the hearing and the Court hadn’t yet made its decision.

12 of those cases were resolved before today. Brown didn’t participate in the judgments, but all of the decisions were unanimous or near-unanimous (7-1). Brown could have written strong concurring or dissenting reasons — a hallmark of his — but his vote couldn’t have changed the results.

The same can’t be said for two of the remaining four cases.

Run it back: Yesterday, the Court told the parties in R. v. Bykovets they need to participate in a re-hearing, conducted in writing. It’s not the first time this has happened, but it’s definitely rare.

The last re-hearing ordered by the Court was in 2014 for R. v. Conception. Eight judges heard the appeal the first time (the Court was down a judge during the dust-up over Justice Nadon’s appointment). Once the Court was back at nine members, a re-hearing was ordered.

It sure seems like the Court ordered a re-hearing in R. v. Conception because they needed to break a tie. The decision ultimately came out 5-4, suggesting a 4-4 split before the re-hearing.

Maybe R. v. Bykovets is a different story and the Court just wants to speak with a full voice on an important issue. But given the number of decisions already released without Brown’s involvement, a deadlock seems to be the most likely reason.

Toss up: But don’t let yesterday’s order trick you into thinking the Court would never accept a tie. Today, the Court released a 4-4 split decision about occupational health and safety liability.

According to common law rules, that means the appeal is dismissed “on equal division” and the lower court’s judgment stands. The Supreme Court’s reasons technically don’t have any precedential value — but lower courts will probably still rely on the reasons that line up with the outcome.

Potato Potahto: Why did the Court order a re-hearing in one case and accept a tie in the other? Likely because R. v. Bykovets is criminal.

Sure, the last “equal division” by the Supreme Court was also a criminal case. But there, the accused was successful in the lower courts. He got the sentence he was asking for. A tie secured that outcome and worked out in his favour.

Mr. Bykovets wasn’t so lucky. He was convicted at trial and a majority at the Court of Appeal upheld his conviction. Wouldn’t it suck to have that outcome secured by a tie? That’s probably what the Supreme Court is thinking too.

Further reading: Want more on re-hearings and “equal division” decisions? Check out this published article from 2001.

HEARSAY ROUNDUP

💊 The Supreme Court will hear an appeal about British Columbia’s multi-province opioid class action. BC enacted legislation saying it can bring a class action lawsuit on behalf of other provinces — that way each of the other provinces doesn’t need to sue at home. The class-action defendants say the law is unconstitutional. They argue BC can’t make legislation that binds other provinces and alters rights beyond provincial borders. The Court of Appeal sided with the province and upheld the legislation. BC’s not worried about leave being granted — it’s not the first time its healthcare cost recovery legislation has gone to the Supreme Court.

🤐 The Supreme Court also issued reasons in the publication ban case argued at the Court last month. CBC asked the Court to lift a publication ban on evidence filed in a wrongful conviction case, but the Court kept the ban in place. The evidence was about the circumstances of a witnesses’s death. That’s really all we know — given the ban — but the Court did say the information was highly sensitive, personal, and a “direct affront” to the dignity of the deceased witnesses’s spouse. There weren’t any other options to protect the spouse’s privacy, and the evidence wasn’t even important to the proceedings, so the Court kept it under wraps.

🤨 Alberta introduced legislation that will halt political ethics investigations during election periods. The concept is not unheard of — but the timing sure raises questions. Earlier this year, the ethics commissioner released a report during the provincial election period saying Premier Danielle Smith breached the Conflicts of Interest Act. Maybe her government should have waited a bit to let things cool off before making changes?

😡 A Provincial Court judge issued a harsh criticism of British Columbia’s Ministry of Children and Family Development. She said the ministry was responsible for an “epic failure” to ensure the best interests of two children who were sexually abused by their father:

That’s it for today — enjoy the weekend 👋