Day Six: Dwight Newman

Professor of Law and Canada Research Chair, University of Saskatchewan

My identification of the five worst Supreme Court of Canada cases stems from cases that both manifest particularly problematic judicial methodology and whose influence has pervaded other cases.  The judgment is not about policy/political result but about legal method and legal consequences.

In chronological order, the five worst cases are:

Canadian Industrial Gas & Oil Ltd (CIGOL) v Government of Saskatchewan, [1978] 2 SCR 545

The CIGOL case is not on the tips of everyone’s tongues, but its failings are nonetheless worth a reminder during this Christmas season—the case connects indirectly to ongoing and current controversies.  The CIGOL case concerned differentiation between a direct tax and an indirect tax for purposes of division of powers analysis.  The majority used informal, intuition-laden analyses to conclude that a Saskatchewan tax on oil producers was an indirect tax that would be passed on to consumers and was thus outside the province’s jurisdiction over direct taxation.  The claim was preposterous given that Saskatchewan oil producers had to take the world oil price—by any sensible economic logic, the tax fell on the producers and was a direct tax.  The case directly affected a subsequent case that had the indirect effect of forcing Saskatchewan to nationalize its potash industry.  These cases led ultimately to the campaign for the addition of section 92A to the Constitution as part of the 1982 package—while it reverses the specific results, the pattern of poor economic logic as part of judicial reasoning continues to rear its head.  CIGOL is a very bad case to have on the books when the Court engages with resource industries and, more generally, economic aspects of life.

Re BC Motor Vehicle Act, [1985] 2 SCR 486

The BC Motor Vehicle Reference is a highly significant case on constitutional interpretation in the Charter era.  In interpreting and broadening s 7 of the Charter, Lamer J (as he then was) went through a lengthy explanation of why evidence of the intended meaning of s 7 was of little weight.  In doing so, he rendered irrelevant the sensible meaning of carefully chosen words that had been used just three years earlier.  The case saw one of the many informal invocations of the living tree metaphor (with no discussion of its origins) that have been so misleading, as Lamer J wrote that “[i]f the newly planted ‘living tree’ which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials […] do not stunt its growth” (para 53).  There is a certain breathtaking audacity here concerning the role of the judges who are now to “adjust” a constitutional text over time—the BC Motor Vehicle Reference planted many of the seeds of such concepts.

R v Oakes, [1986] 1 SCR 103

The Oakes test for rights limitation is, of course, one of the most famous tests ever to proceed from the Supreme Court of Canada, and it has had an international impact as well.  But the framework articulated in the original Oakes case has had a messy influence with the courts moving back and forth from its strictures in relatively unpredictable ways.  The Oakes decision itself was decided on the rational connection branch in a manner that would be inconsistent with most subsequent applications of the Oakes test—that fact alone should raise some questions about the fundamental coherence of what is going on here.  The whole application of the Oakes test as an external limit on rights—something not necessarily proceeding from the constitutional text, despite mythologies to the contrary—undergirds a vast body of jurisprudence in which we live constantly in states of rights “infringement” but with those infringements being “justified” in what becomes an unhealthy rights culture.  The sheer pervasiveness of Oakes makes it difficult to challenge, and we must be impressed by efforts like those of LeBel J in Hutterian Brethren and Rowe J in Trinity Western University (2018) (with the latter having other questionable features but being on point in its critiques of contemporary proportionality analysis).  But much more work is necessary to get toward a sounder approach to rights analysis.

R v Van der Peet, [1996] 2 SCR 507

The Van der Peet decision on the test for the Aboriginal rights clause in section 35 of the Constitution Act, 1982 is a tragic example of the Court drawing briefly on some pseudo-philosophical work in trying to determine the bounds for a rights clause without prior precedent in Canadian constitutional traditions.  Instead of engaging with precedents concerning survival of property rights in various contexts within the British Empire, the Court developed its own, culturally-focused test.  In subsequent applications to other s 35 contexts, where the Court has had to make ad hoc adjustments to parts of the Van der Peet test to even make it fit, the test has led to peculiar cultural limits on the scope of property rights and other rights.  The Court faced a challenging undertaking in Van der Peet, and its methodologically suspect approach unfortunately locked section 35 law into some deeply problematic patterns.

Canada (Attorney General) v. Bedford, 2013 SCC 72[2013] 3 SCR 1101 and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331

Apart from their results, the Bedford-Carter duo of cases saw an explicit move away from the doctrine of stare decisis and even an authorization of trial courts overruling Supreme Court of Canada jurisprudence.  Bedford set out some of the basic law to this effect, albeit in a case technically distinguishable from issues that had been decided by prior judgments.  Carter went on to see the new rules applied as a trial court decision that overturned a prior Supreme Court of Canada judgment was considered laudable.  The ultimate consequences are not all clear yet, but this shift has put some of the basic premises of rule of law at stake.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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