“And the Winner is…”: The First Annual OZZY Awards

A while back, we promised we would compile a list of our top judgments from 2009 in a number of categories. And so, at the risk of diverting the nation’s attention from our top athletes at the Olympics, we present to you the First Annual Ozzy Awards (named in recognition both of our school and the fact that we’re pretty much ripping off the Oscars).

Due to the economy, we decided to forego the red-carpet awards gala we had planned in Roy Thomson Hall with the leading luminaries of the Canadian legal profession in attendance in their finest evening wear (maybe next year). Now, without further ado:

Criminal Judgment of the Year

Nominees:
R v Grant
R v McNeil
R v Patrick
R v Suberu

Interestingly, represented in this category are half the tetralogy of cases that reformed the law on the exclusion of evidence as a Charter remedy under s. 24(2). Meanwhile, joining Grant and Suberu among the nominees are McNeil, which dealt with disclosure of third party records in the hands of police (but declined to discuss another interesting issue considered by the OCA, which was the scope of the duty of post-conviction disclosure), and Patrick, which found that a police search of garbage bags placed for collection on the accused’s property was reasonable.

And the Ozzy goes to…

R v Grant – No surprises here. Not only did this highly anticipated case lay down a new test for the exclusion of evidence under s. 24(2), it set out a new definition of (and test for) psychological detention under ss. 9 and 10. It has left the world of criminal practitioners and academics alike abuzz with speculation on how the new tests will play out, and has rendered my Crim Pro summary from last year essentially useless (not that it wasn’t anyway).

Civil Judgment of the Year

Nominees:
AC v Manitoba (Director of Child and Family Services)
Alberta v Hutterian Brethren of Wilson Colony
Grant v Torstar Corp
Nguyen v Quebec (Education, Recreation and Sports)

Three of these decisions involve the Charter rights of minority communities. In AC v. Manitoba, a 14-year-old Jehovah’s Witness unsuccessfully claimed that a law allowing a judge to order her to undergo a blood transfusion contrary to her religious beliefs violated her Charter rights under ss. 2(a), 7, and 15. In Hutterian Brethren, members of a small religious community who believe that getting their photos taken breaches the Second Commandment filed a s. 2(a) claim that their religious rights were infringed by a law making photos mandatory for driver’s licences; their claim was rejected by the SCC. Finally, in Nguyen, the Court released a controversial decision striking down a provision of Quebec’s language laws that restricted access to English-language education. Added to this mix is Grant v Torstar Corp, in which the SCC recognized a new “responsible communication” defence to defamation.

And the Ozzy goes to…

Grant v Torstar Corp – Drawing from Charter values and jurisprudence from other common law jurisdictions, the SCC opened up a new “responsible communication” defence to dispose of two defamation suits launched against the Toronto Star and the Ottawa Citizen. Showing their sensitivity to modern technological developments, they went further than the “responsible journalism” defence recognized by the English jurisprudence and the OCA’s decisions, defining the new defence broadly enough to encompass not just journalistic media but all forms of public communications – including, for instance, online blogs. All of us at TheCourt.ca subsequently breathed a huge sigh of relief and named Torstar Civil Judgment of the Year in gratitude.

Charter Judgment of the Year

Nominees:
AC v Manitoba (Director of Child and Family Services)
Alberta v Hutterian Brethren of Wilson Colony
R v Grant
R v Suberu

Given the prominence of Charter litigation in modern Supreme Court jurisprudence and in our hearts, we decided to create a category just for these cases. It was a particularly busy year for Charter jurisprudence, with some real heavyweights up for the top prize.

And the Ozzy goes to…

R v Grant – A very close race here, with AC v. Manitoba and Hutterian Brethren also in the hunt. But in the end, Grant comes out on top by a hair. Grant is shaping up to be a big winner here, taking two of three Ozzies thus far.

Concurring Opinion of the Year

Nominees:
Binnie J. in R v Grant
Deschamps J. in R v Grant
Rothstein J. in Canada (Citizenship and Immigration) v Khosa

Once again, some heavy representation here from R v Grant. Both Binnie J.’s disagreement with the definition of “detention,” as well as Deschamps J.’s criticism of the new s. 24(2) test, have made it on to the shortlist. Rounding out the group is Rothstein J. and his forceful argument in Khosa that the reasonableness standard of review should be limited to cases with a strong privative clause.

And the Ozzy goes to…

Deschamps J. in R v Grant – The accused seeking to exclude evidence under s. 24(2) of the Charter this year had no friend in Deschamps J., who was the only judge to vote to admit the impugned evidence in all four (three if you don’t count Shepherd) s. 24(2) cases. In Grant, she questioned the majority’s new three-pronged test focusing on the seriousness of the breach, the impact on the accused’s Charter-protected interests, and society’s interest in adjudication on the merits. Seeing a measure of overlap and redundancy in the first two factors, she instead advocated a simpler test which would balance the public interest in protecting Charter rights against the public interest in adjudication on the merits. Personally, I do see merit in the majority’s approach, which highlights that there may be occasions where the reprehensibility of state conduct may in and of itself warrant the exclusion of evidence independently of its actual impact on the accused’s rights. That said, Deschamps J. is correct in pointing out that the two could be linked together into a broader consideration focusing on the public interest as a whole.

Dissenting Opinion of the Year

Nominees:
Abella J. in Alberta v Hutterian Brethren of Wilson Colony
Abella J. in Plourde v Wal-Mart Canada Corp
Binnie J. in R v Suberu
Fish J. in Canada (Citizenship and Immigration) v Khosa

A strong dissent can be as worthy of acclaim as a strongly written majority opinion. It adds value to a decision and offers a refreshing alternative perspective. And a particularly effective dissent can in time become the majority position – most recently, LeBel J.’s scathing attack on the two standards of reasonableness in judicial review of administrative action in Toronto (City) v CUPE, Local 79 led to the Court unanimously collapsing patent unreasonableness and reasonableness simpliciter into a single standard of reasonableness in Dunsmuir v New Brunswick (although this was technically a concurring opinion).

And the Ozzy goes to…

(Tie) Abella J. in Plourde v Wal-Mart Canada Corp – It was noteworthy to see all of the judges with a background in labour law – LeBel, Abella, and Cromwell JJ. – register dissenting votes in the Wal-Mart case. As a company, Wal-Mart is widely deplored for its repressive anti-union policies and practices and has been mired in pitched battles with Canadian unions (notably UFCW) and our more generous labour laws since its arrival in this country. Recently, it has been in the practice of closing stores in response to successful union drives in Canada. Hardly an endearing tactic, but the question that came before the SCC was whether certain provisions of Quebec’s Labour Code granted access to a remedy where a store was closed for anti-union purposes. The majority ruled that the particular provisions in question did not, although there were other provisions that did. In a particularly forceful dissent, the three judges led by Abella J. drew from a thorough analysis of Quebec jurisprudence and academic literature to lambast the majority for departing from Quebec case law and undermining legislative objectives. A strong dissent should methodically attack the weaknesses in the majority’s reasoning and cause the reader to seriously question whether the majority got it right. This is exactly what Abella J.’s hard-hitting dissent in Wal-Mart does.

(Tie) Binnie J. in R v Suberu – Citizen: “I guess I can go.” Police officer: “Wait a minute. I need to talk to you before you go anywhere.” To most lay people, it would probably seem far-fetched that any ordinary citizen would actually feel free to walk away after this simple interaction. Yet the majority in Suberu ruled this was not a psychological detention. The legal profession is notoriously segregated and isolated from the rest of Canadian society, and Suberu is one of those decisions that leave readers wondering whether SCC judges, after so many years on the bench, are still in touch with the realities faced by ordinary Canadians. However, this difficulty with the majority’s reasoning did not escape all the judges. In his characteristically understated yet persuasive manner, Binnie J. (joined by Fish J.) pointed out how most citizens would likely interpret this interaction: “Constable Roughley was replying to Mr. Suberu, who had essentially said, “Can I leave?”, by essentially  saying, ‘No’.” In this respect, he failed to get the support of most of his colleagues – but he does get the Ozzy and, therefore, the last laugh.

Most Disappointing Refusal of Leave

Nominees:
Amnesty International Canada v Canadian Forces, 2008 FCA 401
Boulter v Nova Scotia Power Incorporated, 2009 NSCA 17
Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522

An awards post such as this one will necessarily be concerned primarily with singling out particular judges and/or judgments for praise. That said, no one wants to read a piece that is entirely laudatory and it’s important to mix in a little criticism. Hence this category, where we pick the judgment we would most have liked to have seen make it to the SCC.

And the Ozzy goes to…

(Tie) Amnesty International Canada v Canadian Forces – Most members of the Canadian Forces would likely be stunned to learn that the Charter does not apply to their actions overseas. Yet this was the decision reached by the Federal Court of Appeal in the Amnesty International Canada case. The FCA, for its part, was merely dutifully applying the precedent set in R. v. Hape, where a 5-4 majority of the SCC, unprompted by any of the parties, reached the rather alarming finding that the Charter, with narrow exceptions, essentially has no extraterritorial effect. There, Binnie J. wrote a vigorous dissent in which he cautioned that making findings much broader and more sweeping than necessary to dispose of the case would foreclose argument in future matters of vital importance. To illustrate his point, he had cited this very litigation which was at the time pending before the Federal Court. LeBel J. for the majority retorted that “[w]e cannot always know what new issues might arise before the courts in the future, but we can trust that the law will grow and evolve as necessary and when necessary in response.” Now, with the denial of leave to appeal in Amnesty International Canada, it appears that Binnie J.’s premonitions have been borne out.

(Tie) Sagen v VANOC – Sadly, despite the great efforts that have been made to eradicate the patriarchal institutions that have scourged human society for millennia, women across the globe continue to be subjected to brutal oppression. In Pakistan, a woman may be murdered by relatives for bringing dishonour upon her family by refusing an arranged marriage. In Iran, a woman may be sentenced to death for adultery after being raped. And in Canada, a woman with a particular talent for jumping really far in the air on a pair of skis may be precluded from competing with other women from around the world for a bunch of shiny baubles on strings.

Okay, so maybe the question of why the SCC did not want to hear a case about women ski-jumpers is one that really answers itself. Still, there were many other questions we were hoping to get answered. Like: does anyone actually watch ski-jumping? Why do they even have the male version of this obscure sport in the first place? And if you can do something that looks as cool as ski-jumping, who cares if you can do it further than anyone else in the world of the same gender?

Okay, so perhaps Sagen isn’t the most compelling case out there. But don’t blame us if we’ve caught the fever and would rather talk about the Olympics than pressing issues of national importance. We’re not the only ones – just ask Stephen Harper.

Judge of the Year

Nominees:
Abella J.
Binnie J.
McLachlin C.J.
Rothstein J.

Yikes – don’t want to be commenting too much on this one. I’ll just say loud and clear that, in my mind, all nine are Judge of the Year. Four judges got nominations here, and I’ll merely add a few words about those that did not. Cromwell J., the rookie, of course came in a little late in the game to be in the running, but he’s off to a strong start and looks to be a cornerstone of the Court for years to come. Deschamps and Fish JJ. each have concurring or dissenting opinions nominated in other categories. LeBel J., meanwhile, was entrusted with the delicate task of writing what was probably the Court’s most politically controversial decision of 2009, Nguyen v. Quebec (Education, Recreation and Sports). Finally, it is tough to explain the absence of criminal specialist Charron J. from the list of nominees, given the series of important judgments she wrote last year, including Grant which has taken just about every other award here.

And the Ozzy goes to…

Abella J. – Our current Chief Justice has been a master at building consensus and fostering coherent, unified statements of the law that eliminate all ambiguity. However, we at TheCourt.ca still strongly appreciate the value of a dissent. It is always refreshing to see a healthy diversity of opinion on the Court, and Abella J. contributed greatly to diversity of judicial opinion with a series of memorable and hard-hitting dissents, notably in Patrick, Hutterian Brethren, and Wal-Mart. This award recognizes that the dissenting judge is more than the judge who couldn’t convince the rest of her colleagues. In this case, she’s Judge of the Year.

Judgment of the Year

Nominees:
Grant v Torstar Corp
Alberta v Hutterian Brethren of Wilson Colony
R v Grant
R v Suberu

Already the big winner this year has been R v Grant, with wins in two categories, as well as an award for Deschamps J.’s minority opinion in the Concurring Opinion category. Will Grant cap it all off with Judgment of the Year?

And the Ozzy goes to…

R v Grant – With Grant v Torstar Corp. winning Civil Judgment honours, and with Abella J. winning Judge of the Year, Dissenting Opinion of the Year, and being on the coram that denied leave to appeal in Amnesty International Canada, the words Grant and Abella run through every Ozzy given out this year. Meanwhile, R v Grant is clearly the big winner, taking 4 of 8 awards. Is it truly an epic judgment on that scale? Or does this merely reflect some sort of criminal law bias among the staff? Let the heated debates by the water cooler begin.