A Supreme Court stocked with newcomers heads into a challenging fall session beginning on Wednesday, featuring major cases on Internet regulation, aboriginal rights and freedom of association.
The court will also tackle a high-profile criminal case in which convicted murderer Dennis Oland seeks to be released on bail while he appeals his conviction. And a case on roadside testing of drug-impaired drivers could help establish some ground rules for the coming era of marijuana legalization.
The court has just two judges with more than five years of experience on the court. Chief Justice Beverley McLachlin joined the court in 1989, and Justice Rosalie Abella was appointed in 2004. Three judges have been named since 2014, and the court is expecting Prime Minister Justin Trudeau to pick a new judge soon to replace Thomas Cromwell, a workhorse on a wide variety of cases since 2008; he retired on Sept. 1. Six of the current eight judges were appointed by former prime minister Stephen Harper.
In Douez v. Facebook, a Vancouver woman is seeking to certify a class-action lawsuit against Facebook, saying the social-networking company violates users' privacy by putting users in advertisements without informing them. Facebook argues that a user's privacy settings give it implicit permission. It also says California is the designated jurisdiction for the case, raising the question of whether B.C. courts have the authority to enforce the province's privacy act to protect consumers.
The class action was certified by the B.C. Supreme Court, but Facebook won on appeal at the B.C. Court of Appeal. Deborah Douez's appeal of that ruling will be heard by the Supreme Court of Canada on Nov. 4.
In Google Inc. v. Equustek Solutions Inc., to be heard on Dec. 6, the court will hear the case of a small B.C. company that asked a B.C. court for a worldwide injunction that would block the search engine Google from displaying certain websites. Equustek was suing a company it accuses of selling counterfeits of its product online, and it does not want potential customers finding the counterfeits in Google searches.
The case raises the question of whether Canadian courts have the authority to block search results outside Canada. Lower courts in B.C. have said they do, and Google appealed.
The court, which has expanded aboriginal rights in groundbreaking rulings in recent years, will hear a novel religious-freedom case called Ktunaxa Nation v. B.C., on Dec. 1. The case involves a ski resort to be built with the province's permission on Crown land that the Ktunaxa Nation calls Qat'muk and says is spiritually important for its people as home of the Grizzly Bear Spirit. (A Ktunaxa Nation website describes their beliefs this way: "Qat'muk is where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world. For Ktunaxa, Grizzly Bear Spirit is a unique and indispensable source of collective as well as individual guidance, strength and protection, and a necessary part of many Ktunaxa spiritual practices and beliefs.") Establishing permanent overnight accommodations on that site would destroy the Ktunaxa's relationship with the spirit, the group says, and render their religious practices meaningless. The Ktunaxa Nation lost in the lower courts. The Crown says there should be no religious veto over development.
The case "represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion," University of Ottawa law professors Natasha Bakht and Lynda Collins said in an e-mail. "Sacred sites are as necessary to Aboriginal religions as human-made places of worship such as churches, temples and mosques are to other religious traditions."
The court has also given constitutional protection to labour rights in recent years. Now it is being asked to extend those rights further in a dispute between the B.C. teachers' union and the province that goes back more than a decade. A lower court had fined B.C. $2-million in "Charter damages" for violating union members' rights. At the heart of the dispute is whether the government acted in bad faith when, after consulting with the teachers, it passed parts of a law previously deemed unconstitutional – a law that rewrote a collective bargaining agreement. The case, called B.C. Teachers Federation v B.C. Attorney General, will be heard Nov. 10.
Dennis Oland of New Brunswick was convicted of the second-degree murder of his father Richard, with no eligibility for parole for 10 years. He was denied bail by lower courts on the grounds that if he were released, the public's confidence in the justice system would suffer. In Oland v the Queen on Oct. 31, he will ask the Supreme Court to set him free while he appeals the guilty verdict.
"Oland argues that being detained as he awaits his appeal is not in the public interest. The Crown argues that allowing those convicted of serious offences such as murder back into the community is not in the public interest. By setting out clear legal parameters for when bail pending appeal should be granted, the Supreme Court's decision will have enormous implications for judges, accused persons and Crown lawyers across the country," University of Ottawa law professor Kyle Kirkup said in an e-mail.
In Bingley v the Queen on Oct. 13, the admissibility of roadside testing for drug impairment is at issue.