Breaking Down the Bench: Analyzing the Supreme Court of Canada’s 2022 Year-in-Review Report
The Supreme Court of Canada (“SCC”) is the highest court in the country, tasked with interpreting the law and resolving disputes of national importance. Each year, the SCC issues a report summarizing its most significant cases and outlining its judicial activities. The 2022 Year in Review Report (the “Report”) was recently released and provides valuable insights into the Court’s role in shaping Canada’s legal landscape. In this blog post, we will delve into the key highlights from the Report, a full copy of which is available here.
By the Numbers
During 2022, the SCC continued to experience a decrease in its caseload, which began during the pandemic. The SCC heard 52 appeals and rendered 53 judgements. Among those, the SCC heard 23 appeals ‘as of right’, meaning the SCC’s permission was not required for the appeal to be heard. Conversely, the SCC granted 35 out of 478 applications for leave to appeal.
The cases heard by the SCC can be broadly divided into three categories: (1) Public Law; (2) Criminal Law; and (3) Private Law. In the Public Law category, the SCC interpreted Canada’s Constitution and handled appeals arising from non-court decisions, such as those by governments and their agencies and tribunals. Criminal Law appeals dealt with prosecutions under the Criminal Code, R.S.C., 1985 c. C-46 (the “Criminal Code”), or other laws which prohibit conduct and impose punishments. Lastly, Private Law cases involved disputes between individuals that were taken to court for determination. Of the 52 appeals heard by the SCC, roughly 65% were in the Criminal Law category, 23% were in the Public Law category, and the remaining 12% were in the Private Law category.
In 2022, the majority of appeals heard by the SCC originated from Ontario (11), followed by Quebec (9), Alberta (8), and British Columbia (7). No appeals were heard from Manitoba, Prince Edward Island, or any of the territories. The SCC dismissed 33 appeals and allowed 20, resulting in a dismissal rate of just over 62%. This is similar to 2021, but 16% higher than in 2020.
The SCC was unanimous in 29 of its 53 decisions, accounting for 55%, the highest rate of unanimous decisions since 2016. The total number of hearing days at the SCC was 48, a decrease of 10 days from 2021. Further, the average time from filing an application for leave to appeal to receiving a judgment was 16.7 months, an increase of 1.5 months from the previous year but close to the 16.5-month average over the last ten years.
The SCC issued a number of notable decisions in 2022, some of which are outlined below.
Anderson v. Alberta, 2022 SCC 6(“Anderson”)
The SCC In Anderson ruled that an Alberta First Nation could qualify for “advance costs” for its ongoing lawsuit against the Governments of Canada and Alberta, even though it had funds of its own. Advance costs are legal fees paid in advance by a government to allow a case to continue.
The ruling clarified that even if a party has funds of its own, they can still qualify for advance costs if they meet the test for “impecuniosity,” which means that they cannot afford their legal fees given their other pressing needs. The Court emphasized that pressing needs must be understood in the spirit of reconciliation and from the First Nation’s perspective. The SCC also explained that an award of advance costs is rare, but necessary in some cases to ensure that public interest claims are heard.
In a unanimous decision, the SCC in Bissonnette declared section 745.51 of the Criminal Code unconstitutional. Section 745.51 allowed for back-to-back 25-year periods of parole ineligibility, which the SCC found to violate Canadians’ rights under the Canadian Charter of Rights and Freedoms. The decision came following an appeal by the Crown in a case where Alexandre Bissonnette was sentenced to serve 40 years in prison before being eligible for parole for the murder of six people in a Quebec City mosque in 2017. The SCC stated that imposing an ineligibility period exceeding the offender’s life expectancy assumes they are beyond redemption and rehabilitation, which is incompatible with human dignity. As a result of the decision, Bissonnette and other offenders may apply for parole after serving 25 years in prison.
In SOCAN, the SCC was tasked with interpreting a new provision of the Copyright Act, R.S.C. 1985, c. C-42 (the “Copyright Act”) dealing with royalty fees for accessing works online. Notably, this decision established a new category of legal issue that should be reviewed on a “correctness” standard.
The test to determine how courts should review administrative decisions on legal issues, such as the decision of the Copyright Board in SOCAN, was set out in the earlier SCC case of Canada (Minister of Citizenship and Immigration v. Vavilov (“Vavilov”) 2019 SCC 65. Vavilov recognized five categories of legal issues that should be reviewed on a correctness standard, meaning that the administrative decision at issue must be the only right answer in the circumstances. Vavilov further held that in rare and exceptional circumstances, new correctness categories can be recognized. The SCC held that the, the issue in SOCAN did not fall within one of the existing “correctness” categories outlined in Vavilov; however, the SCC chose to review the Copyright Board’s decision on a correctness standard, nonetheless. In doing so, the SCC held the case was one of the exceptional circumstances where it was appropriate to recognize a new category of correctness review, being: “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.”
The SCC in CCD held that the Council of Canadians with Disabilities qualified for public interest standing to challenge the constitutionality of British Columbia’s mental health legislation. In a previous case, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, the SCC established a three-part test for public interest standing: (1) the case must raise a serious issue the court can decide; (2) the party raising the issue must have a genuine interest in the matter; and (3) the lawsuit must be a reasonable and effective way to bring the issue the court.
Again, writing for a unanimous Court, Chief Justice Richard Wagner found that the Council of Canadians with Disabilities met the three-part for test for public interest standing. The SCC emphasized that the decision to grant or deny public interest standing is discretionary, and each factor in the test must be considered without prioritizing one over another.
It appears 2023 will be significant for the SCC in terms of addressing the inherent rights of Indigenous Peoples. In December 2022, the SCC heard Attorney General of Quebec, et al v. Attorney General of Canada, et al. The SCCwill render its decision on the case later this year, which will determine the constitutionality of the federal government’s Indigenous child welfare legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 and has the potential to usher in a new era of Indigenous governance. Further, on February 7, 2023, the SCC heard an appeal arising from Cindy Vicson v. Vuntut Gwitchin First Nation, 2021 YKCA 5which addresses the applicability of the Canadian Charter of Rights and Freedoms to self-government treaties.
The decisions in these cases will likely have a significant impact on the advancement (or impairment) of Indigenous rights and reconciliation in Canada and may foreshadow how the Court will approach the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) recently adopted by Canada (2022) and BC (2019). Hopefully, the Court’s decisions will support the “new era” in the relationship between Indigenous peoples and Crown governments and the affirmation of inherent rights promised by UNDRIP legislation.
 SOCAN, para 28.