Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A p r I L 2 0 1 5 29 w w w . C A N A D I A N L a w y e r m a g . c o m A p r I L 2 0 1 5 29 by Gowlings for an upcoming article in e Advocates' Quarterly. On appeal, about 75 per cent of the decisions have been upheld. Karakatsanis says she believes the Supreme Court's decision in Hryniak has resonated with trial judges. "From the court's perspec- tive, we were trying to encourage the judiciary to feel able to be a little more innovative and sensitive to an aff ordable, timely, pro- portional resolution of cases," without the fear of necessarily being overturned on appeal, she explains. At the same time, the court's role in this area is limited and Karakatsanis says it is up to the legal profession and the legislatures to work on more ways to improve access to justice. As both a senior civil servant involved in the actual admin- istration of justice and now as a judge, she is mindful of the complex dynamic between governments and the courts. Writing for the majority in a 5-4 decision in 2013's Ontario v. Criminal Lawyers' Association of Ontario, she found that judge's inherent jurisdiction did not extend to setting the actual rates that an am- icus curiae should be paid by in Ontario. As a senior civil ser- vant, Karakatsanis has also been on the receiving end of having to come up with new policies a er Supreme Court rulings come out that have an impact on government. She was the deputy AG when the Supreme Court decided M v. H., the seminal case that decided exclusion of same-sex couples from a defi nition of common-law spouse in the Ontario Family Law Act violated the Charter. " e decision clearly also would apply to many other statutes," Karakatsanis remembers. " e government brought in an act to amend 67 statutes. e title of the legislation was 'Amendments Because of the Supreme Court of Canada Deci- sion in M v. H Act.' It was not an easy thing to do, but it was the right thing to do," she says. Now, as a member of the country's top court, she has been part of decisions involving important social issues that have also been marked by legislative inaction. Rulings in areas such as the right to strike, assisted suicide, and prostitution have sparked criticism, Noteworthy Supreme Court rulings Majority decisions R v. Grant, 2015 Writing for a unanimous court, in a decision issued last month, Justice Andromache Karakat- sanis stressed that trial courts must go back to fi rst prin- ciples when deciding whether defence evidence about an alternate suspect, is admissible. The evidence must be relevant and its probative value must outweigh its prejudicial effect. In upholding a Manitoba ap- pellate decision ordering a new trial for an accused convicted of murder, the Supreme Court rejected the Crown's view that the test to admit this type of evidence should be closer to the "similar fact" standard. Hryniak v. Mauldin, 2014 "Ensuring access to justice is the greatest challenge to the rule of law in Canada today," is how Karakatsanis' judgment for a unanimous court began, regarding the approach to new summary judgment powers in Ontario. The new rules were to be interpreted broadly and aimed at providing fair access to affordable, timely, and just adjudication of claims. The decision also laid out a roadmap on how judges should apply the new powers. R. v. Quesnelle, 2014 The ruling overturned an Ontario Court of Appeal decision that found police occurrence reports involving complainants in sexual assault cases, that were not related to the case before the court, were not records. As a result, the St inchcombe test for disclosure applied. The Supreme Court concluded that was wrong. In- stead, the Mills regime is what should be applied, permitting disclosure only when there is likely relevance and it is in the interests of justice. Ontario v. Criminal Lawyers' Association of Ontario, 2013 Writing for the majority in a 5-4 decision, the issue was whether a judge who had ap- pointed an amicus curiae could also set the rate by which the attorney general must pay that lawyer. "Courts do not have the institutional jurisdiction to interfere with the alloca- tion of public funds," wrote Karakatsanis, unless there is explicit statutory authority or a constitutional challenge. "It is for the duly elected members of the legislature to determine what funds are expended on the administration of justice, not the judges." Concurring decision R. v. Hart, 2014 The so-called Mr. Big stings, where police pose as criminals in undercover operations, was the focus of this crimi- nal appeal. For the majority, Justice Michael Moldaver set out a framework to determine when the evidence obtained using this technique would be admissible. The Crown must show that the probative value outweighs its prejudicial effect. Karakatsanis agreed in the result, but differed on the test. Instead, the analysis should be through the "lens of the prin- ciple against self-incrimination," as set out in the Charter. "Mr. Big operations entail signifi cant dangers. The detailed artifi cial reality created by the operation is purposively manipulative and can compromise the autonomy and human dignity of the sus- pect. Moreover, the technique generates a signifi cant risk of false confessions," she stated. Dissenting decisions R. v. Fearon, 2014 The court split 4-3 on whether search warrants are required to examine mobile phones seized incident to arrest. For the majority, Cromwell stated these searches may serve important law enforcement purposes and set out a framework for when a warrant will not be necessary. In dissent, writing for justices Rosalie Abella and Louis LeBel, Karakatsanis said the majority decision improperly leaves it up to police to decide whether to exercise an "extraordinary search power." She also stressed the signifi cant amount of personal information on smartphones as well as the privacy interests contained within that data. "As technology changes, our law must also evolve," she wrote. Tervita Corp. v. Canada (Commissioner of Competition), 2015 The majority overturned a Fed- eral Court of Appeal decision, ordering a company to divest its interest in a landfi ll operation in northeastern B.C. It found the effi ciencies defence in the Competition Act outweighed the anti-competitive effect of the transaction. As the lone judge in dissent, Karakatsanis suggested the majority should defer to the Competition Tribunal in how to weigh the evidence and apply the tests in deciding whether a merger should be approved. — SK GAIL COhEN

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