Canadian Lawyer

Top Court tales by Philip Slayton That's a wrap for 2012 A miscellany of the year that was and some predictions for 2013 at the Supreme Court of Canada. H ere's my end-of-year Supreme Court of Canada round-up, a miscellany of notes about our highest court, intended to take its place alongside the collected worst travel experiences of the year ("stuck in Naples when ash cloud hit") and annual lists of bad sex scenes in recently-published novels ("We started tenderly. . . ."). Good for you, Rosie! Will you be leaving soon? What's an end-of-year column without 16 Jan uary 2013 www.CANADIAN a prognostication or two? In my last column, I wondered why Supreme Court of Canada justices frequently quit before the mandatory retirement age of 75 (unlike in the United States, where it often takes the Grim Reaper to get a Supreme Court judge off the bench). Here's a prophecy: Abella will leave the court soon. In 2014, she will have been a Supreme Court justice for 10 years, the average length of service of the last four judges to retire. She will have made her mark. She can get out of Ottawa with honour, back to the fleshpots of Toronto, away from an increasingly conservative court that she must find more and more unpalatable. She'll be on the right side of 70, and can apply her famous energy to some new and exciting project. While I'm at it, here's L a w ye r m a g . c o m another prophecy: Chief Justice Beverley McLachlin will stay on until her 75th birthday, on Sept. 7, 2018. Count on it. But please, Rosie, don't go until Rodriguez is reversed. Carter v. Canada (Attorney General), the most important case of a generation, is on its way to the court. In Carter, a B.C. trial judge struck down s. 241(b) of the Criminal Code that makes assisting a suicide a crime, finding the provision contrary to equality rights under the Charter of Rights and Freedoms. Carter will give the justices a chance to reverse the 1993 Rodriguez decision which, by five votes to four, upheld s. 241(b). In my September column, I speculated that Canadian society and the judiciary may now be ready Kyle Brownrigg November saw the court's decision in Moore v. British Columbia (Education). Justice Rosalie Abella, giving judgment for a unanimous court, held that a school district's decision to cut funding for a special education program that helped Jeffrey Moore, a severely learning disabled student, was discrimination under the B.C. Human Rights Code since it denied him meaningful access to public education. Abella emphatically rejected the idea that services available for Moore should be compared to services available to other disabled students, rather than to those available to the general student population. This loathsome "separate but equal" concept (as Abella said, "majestically discarded in Brown v. Board of Education of Topeka," the 1954 U.S. Supreme Court decision that ended school segregation) was embraced in Moore by both the B.C. trial judge and Court of Appeal. Good for you, Rosie — it's a fine judgment — and you should ignore the ill-judged Globe and Mail editorial that said the court has opened a Pandora's box and overstepped its authority.

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