The high court's fall session features a near-even number of civil and criminal appeals
The Supreme Court of Canada will hear 21 appeals during its fall session, with its focus almost evenly split between criminal and civil cases. The first hearing is scheduled for Oct. 7.
One of the most closely watched cases of the session is His Majesty the King v. Harry Arthur Cope, which features 20 intervenors, including provincial and community prosecutorial services, legal aid centres, and organizations representing lawyers and Indigenous women.
The case involves a man who violently assaulted his female partner. Both are Mi’kmaw. After pleading guilty to aggravated assault, a court sentenced the man to five years in prison. A Nova Scotia Court of Appeal majority reduced the sentence, concluding that the trial judge gave insufficient weight to systemic factors impacting Indigenous offenders like colonialism, trauma, dislocation from culture, or lack of opportunity. The SCC mandated that courts consider these factors in its landmark 1999 decision R. v. Gladue.
The high court will consider how to reconcile those sentencing principles for Indigenous offenders with a competing need to strongly denounce intimate partner violence against Indigenous women, which is outlined in the Criminal Code. The case is scheduled to be heard on Dec. 5.
Another closely watched criminal case is Chief of the Edmonton Police Service v. John McKee, et al., which features 12 intervenors. The case involves John McKee, an Alberta man who was charged with drug and weapons offences in 2022. The following year, the Crown informed the man’s counsel that the lead police investigator in his case, Jared Ruecker, had previously been found guilty of misconduct, and that disciplinary records related to this misconduct could be subject to disclosure.
However, the Crown said the Edmonton Police Services did not want to disclose those records on the basis that they had been expunged. McKee filed an application to have the records disclosed with the Crown’s consent, and a court granted the application. The Chief of the EPS appealed.
The SCC will consider when police disciplinary records should be disclosed in Canada and whether expunged findings of police misconduct are disclosable in unrelated criminal proceedings. Hearings for the case will take place on Oct. 7 and 8.
On the civil side, the SCC is set to hear the appeal in Pharmascience Inc. v. Janssen Inc., et al. on Oct. 9. The case features five intervenors.
The high court will consider whether methods of medical treatment are eligible for patents. The parties in the case are two drug companies with competing medications used to treat schizophrenia. Janssen’s product, INVEGA SUSTENNA, is administered according to a patented dosing regimen that is designed to be easy for patients struggling with schizophrenia to follow. Pharmascience, a generic drug manufacturer, argued that dosing regimens cannot be patented.
A federal court found that Janssen’s patent was not invalid, and the Federal Court of Appeal dismissed Pharmascience’s appeal.
On Nov. 5 and 6, the SCC will hear the appeal in Ryan Alford v. Canada (Attorney General), which features 12 intervenors.
Alford, a law professor at Lakehead University, filed the challenge to the National Security and Intelligence Committee of Parliamentarians Act, which created a committee of Parliament members with the authority to access classified information concerning matters of national security and intelligence. The committee is responsible for preparing reports for the Prime Minister on the matters it investigates.
Under s. 12 of the act, committee members accused of disclosing that classified information cannot claim immunity based on parliamentary privilege in criminal or other proceedings. Alford argued that s. 12 is outside the scope of Parliament’s authority, and that declaring otherwise would make it a criminal offence for a member of the committee to disclose information that the government is trying to protect.
The Ontario Superior Court of Justice sided with Alford, declaring s. 12 constitutionally invalid, but an Ontario Court of Appeal panel unanimously allowed Canada’s appeal.
Alford told Canadian Lawyer on Tuesday he hopes the case “gives the SCC a chance to address the constitutional significance of parliamentary privilege and its continued importance as a structural principle after Canada v. Power,” a 2024 SCC decision on Crown immunity.
On Dec. 8 and 9, the high court will hear the appeals in two cases: Nisga’a Nation, as represented by the Nisga’a Lisims Government v. Malii also known as Glen Williams, et al. and Skii km Lax Ha et al. v. Malii also known as Glen Williams, et al.
The cases involve multiple Indigenous nations that have asserted competing claims over the same land in British Columbia.
One of the issues that the SCC will consider involve the Nisga’a Nation, which is party to a modern treaty covering parts of a geographic area over which the Gitanyow Nation asserts Aboriginal rights and title. The Gitanyow Nation advanced claims against the federal and provincial Crown, and both the Supreme Court of British Columbia and the BC Court of Appeal dismissed the Nisga’a Nation’s attempts to be added as a defendant in the action.
The Attorney General of Canada said the appeals “present an opportunity for the [SCC] to provide guidance on litigation participation rights in two types of overlapping Aboriginal claims: in cases where modern treaty rights overlap with an Aboriginal rights and title claim; and in cases where there are overlapping section 35 Aboriginal rights and title claims.”
