Jordan case and medical negligence claim are first appeals in SCC's winter session

With jury trials in many Canadian courtrooms suspended, the Supreme Court of Canada will be hearing just 17 appeals during its winter 2021 session – lower than usual, but higher than last winter’s tally of just 12.

The winter hearing line-up will include an appeal of the right to be tried within a reasonable time, based on the Jordan rules; the City of Toronto’s appeal of the redrawing of electoral boundaries mid-election in 2018; the CBC’s challenge to a publication ban; and an appeal of a B.C. city’s liability for a woman’s injury after she hurt herself climbing over a snowbank.

Seven of the appeals in the Supreme Court’s winter session concern criminal convictions, and 10 are in civil cases; 12 appeals are by leave, and five as of right. Five are from Ontario, three from Quebec, two each from British Columbia, Manitoba and Newfoundland, and one each from Alberta, New Brunswick, and the Federal Court of Appeal.

Appeals in criminal cases

The first criminal case on the docket, to be heard as of right on Jan. 19, is Jamis Yusuf, et al. v. R., concerning the right to be tried with a reasonable time. Following their convictions in 2017 on charges of assault causing bodily harm and unlawful confinement, the three appellants applied for a stay of proceedings under the Jordan rules, which the Supreme Court had established prior to the verdict being rendered. The trial judge deemed the delay (35 months had elapsed between indictment and verdict) to be the Crown's responsibility and granted the application for stay against all three appellants. The decision was reversed by the Ontario Court of Appeal, which adopted what the appellants call a “micro-counting” approach to determining delay, which was rejected by the Supreme Court in Jordan.

Another criminal appeal to be heard as of right is in R. v. Angus Frederick Waterman on Jan. 22, which concerns a charge of gross indecency on a person under the age of 16. At issue were inconsistencies in the complainant’s evidence, which for the Newfoundland and Labrador Court of Appeal were sufficient to set aside the defendant’s conviction.

 On Feb. 18 the court will hear the appeal in Peter Khill v. R., which turns on the interpretation of the doctrine of self-defence. A jury found the appellant not guilty of shooting an unarmed Indigenous man to death in the driveway of the appellant’s house; the appellant claimed that he believed the victim was armed and that he acted in self-defence, but the Ontario Court of Appeal ordered a new trial on the basis that the trial judge had failed to properly instruct the jury to consider the appellant’s conduct leading up to the moment the shots were fired, leaving jurors unequipped to properly evaluate the reasonableness of the appellant’s act.

Appeals in civil cases

The first hearing of the winter session on Jan. 18, Karen Armstrong v. Colin Ward, concerns the standard of care for professional negligence in the context of a medical procedure, which in this case allegedly caused damage to the appellant. The appellant was successful at trial in her suit against the respondent physician, and was awarded $1.3 million and damages. The Ontario Court of Appeal reversed the decision on the basis that the trial judge erred in defining the standard of care the doctor had to meet, and “by improperly establishing a standard of perfection.”

In a freedom of expression case, Mike Ward v. Commission des droits de la personne et des droits de la jeunesse, et al., to be heard on Feb. 15, a Montreal stand-up comedian had made fun of a young Quebec singer, Jérémy Gabriel, in his comedy sketches. Gabriel has Treacher Collins syndrome, which causes facial deformities and sometimes speech impediments. A human rights tribunal found that the comments were discriminatory and not justifiable on the basis of freedom of expression, which was upheld by the Quebec Court of Appeal.

On Feb. 16 the court will hear another appeal involving a human rights tribunal, in this case the Manitoba Human Rights Board of Adjudication. In Northern Regional Health Authority v. Linda Horrocks, the respondent, a unionized health-care worker and an alcoholic, was terminated from her job for being inebriated at work and for chronic absenteeism. The respondent brought a complaint to the Manitoba Human Rights Board of Adjudication. The employer objected on jurisdictional grounds, but that objection was dismissed on the basis that the respondent’s addiction fell under the protection of the Manitoba Human Rights Code and was a factor upon which she was treated adversely.

In City of Toronto v. Attorney General of Ontario, to be heard by leave on March 16, the court will be asked to determine the constitutionality of the Better Local Government Act, 2018, S.O. 2018, c. 11, which altered the number of wards and ward boundaries in the City of Toronto during municipal and schoolboard elections. Prior to the elections, Toronto had applied to the Ontario Superior Court challenging the constitutionality of the act, arguing that s. 2(b) of the Charter protects the expression of electoral participants from substantial mid-election changes to the election. The Superior Court found that the Act violated the Charter, but the Court of Appeal allowed the appeal and elections proceeded across 25 wards with revised boundaries. The minority, however, was of the view that freedom of expression in the context of an election meant respecting a predetermined electoral framework and not changing course midway through the election period.

The case has attracted 17 interveners, including the Canadian Constitution Foundation, the International Commission of Jurists, the Federation of Canadian Municipalities, the Canadian Civil Liberties Association and the David Asper Centre for Constitutional Rights.

Whether and in what circumstances a court authorized to issue a publication ban retains jurisdiction to set aside, vary or clarify its order will be considered  by the court in Canadian Broadcasting Corporation v. R., et al., on March 17. The challenge arose in the context of a publication ban in the appeal of a first-degree murder conviction. The Manitoba Court of Appeal decided that evidence under a certain defence motion was irrelevant but that it should remain entitled to protection, and denied the CBC’s request to lift the ban on the basis that it didn't have jurisdiction to rehear or interpret the ban.

The last scheduled case of the year, City of Nelson v. Taryn Joy Marchitar, to be heard on March 25, is a tort case concerning negligence and Crown liability. After parking her car on a city street in Nelson, B.C., in January 2015, the respondent found her access to the sidewalk was blocked by a snowbank created by city snowploughs; she climbed over the snowbank, injured her leg, and sued the city for negligence. At trial she was found to have been “the author of her own misfortune,” with the court citing her choice of footwear (running shoes) on a snowy day. She appealed to the British Columbia Court of Appeal, arguing that the city should have made clearings in the snowbanks to allow access to sidewalks, and citing neighbouring cities in B.C. that had established reasonable alternatives for ensuring safe access onto sidewalks.

The B.C. Court of Appeal found that the trial judge had failed to engage in the distinction between a municipal government's policy and its operational decisions, and it ordered a new trial.

The case may have particular significance in light of the current coronavirus pandemic and several government decisions made in response, including to ease or increase lockdown restrictions.