Consenting to reverse under s. 70 of the Supreme Court Act

In this post, I ex­plain the rare pro­ce­dure by which the Supreme Court of Canada must re­verse a low­er court judg­ment upon the con­sent of the re­spon­dent. I also ar­gue that the rea­sons of that re­versed judg­ment should still re­ceive prece­den­tial weight ac­cord­ing to the or­di­nary op­er­a­tion of stare de­ci­sis.

The Supreme Court Act, s. 70 says:Supreme Court Act, R.S.C. 1985, c S-26, s 70. Previously, until December 12, 1988, this was at Supreme Court Act, R.S.C. 1970, c S-19, s 75. Before that, see Supreme Court Act, R.S.C. 1952, c 259, s 75; Supreme Court Act, R.S.C. 1927, c 35, s 76; Supreme Court Act, R.S.C. 1906, c 139, s 81; The Supreme and Exchequer Courts Act, R.S.C. 1886, c 135, s 52. It was originally introduced in An Act to es­tab­lish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada, 38 Vic (1875), c 11, s 40. It appeared in slightly altered form in An Act to amend the Laws in Upper Canada, re­spect­ing Appeals, and to al­ter the Constitution of the Court of Error and Appeal, 20 Vic (1857), c 5, s 9.

A re­spon­dent may con­sent to the re­ver­sal of the judg­ment ap­pealed against by giv­ing to the ap­pel­lant a no­tice en­ti­tled in the Court and in the cause, and signed by the re­spon­dent or the re­spon­dent’s at­tor­ney or so­lic­i­tor, stat­ing that the re­spon­dent con­sents to the re­ver­sal of the judg­ment, and there­upon the Court or a judge shall pro­nounce judg­ment of re­ver­sal as of course.

On September 21, 2023, the Supreme Court of Canada grant­ed such a re­ver­sal in Licensing IP International S.À.R.L., et al. v. Sweet Productions Inc., et al. (File No. 40354):

The ap­pli­ca­tion for leave to ap­peal from the judg­ment of the Federal Court of Appeal, Number A-100-21, 2022 FCA 111, dat­ed June 10, 2022, is grant­ed.

The ap­pel­lants ap­ply for an or­der, pur­suant to s. 70 of the Supreme Court Act, re­vers­ing the judg­ment of the Federal Court of Appeal dat­ed June 10, 2022, and restor­ing the judg­ment of the Federal Court, Number T-1440-19, 2021 FC 216, dat­ed March 10, 2021.

The ap­pel­lants bring the mo­tion un­der s. 70 of the Supreme Court Act on the ba­sis that the par­ties have set­tled their dis­pute and have made a re­ver­sal on con­sent or­der a con­di­tion of their set­tle­ment.

Upon read­ing the ma­te­ri­als filed by the par­ties, and not­ing the con­sent of the re­spon­dents to a re­ver­sal of the judg­ment pur­suant to s. 70 of the Supreme Court Act;

IT IS HEREBY ORDERED THAT:

The mo­tion to re­verse the judg­ment of the Federal Court of Appeal is grant­ed. The judg­ment of the Federal Court of Appeal bear­ing court file num­ber A-100-21, 2022 FCA 111, and dat­ed June 10, 2022, is set aside, and the judg­ment of the Federal Court, bear­ing court file num­ber T-1440-19, 2021 FC 216, dat­ed March 10, 2021, is re­stored.

Judgment ac­cord­ing­ly

How rare is this procedure?

Tom Slade says, “Very Rare!” Bruce Ryder says, “How un­usu­al.” Paul-Erik Veel had not need­ed to code for this event in the Lenczner Slaght Supreme Court of Canada Database un­til now.

Searching CanLII for “Supreme Court Act” /s “s. 70” since 1988 and re­view­ing the BulletinsThanks to Alison Clark for automating the downloads of the Bulletins so that I could do a text search on them. re­vealed five s. 70 re­ver­sals:

• R v Reddick, [1991] 1 SCR 1105.
• R v Mills, [1995] 1 SCR 902.
• R v Shorting (1996), 110 CCC (3d) 383 (SCC).
• R v Garcha (2001), Bulletin of Proceedings of the Supreme Court of Canada (16 February 2001).
• R v ALR, [2001] 11 WWR 413, Bulletin of Proceedings of the Supreme Court of Canada (2 March 2001).

And search­ing CanLII for “Supreme Court Act” /s “s. 75” be­tween 1952 and 1988 re­vealed two s. 70 re­ver­sals:

• Jackson v The Queen, [1979] 2 SCR 707.
• Canadian Pacific Ltd v Drumheller (City), [1988] 1 SCR 1901.

Do not take the above as ex­haus­tive. There are more of these re­ver­sals than ap­pear in CanLII’s dataset. The re­ver­sal in Garcha is not in­dexed by CanLII. And in Reddick, Justice Sopinka not­ed that “[a] sim­i­lar or­der grant­i­ng a judg­ment of re­ver­sal was giv­en by McLachlin J. in R. v. McCaul, Bulletin of Proceedings of the Supreme Court of Canada, September 27, 1991, at p. 1995 (judg­ment ren­dered October 1, 1990).” You can see that the Court made the s. 70 or­der in McCaul by look­ing at the dock­et (File No. 21634).

How are consent reversals used?

A good ex­am­ple is R. v. Garcha.R v Garcha, 2000 BCCA 550 (the re­ver­sal is not found in CanLII). In Garcha, the ap­pel­lant was con­vict­ed of a num­ber of offences, in­clud­ing the use of an im­i­ta­tion firearm while com­mit­ting a rob­bery. The ap­pel­lant’s ap­peal to the Court of Appeal was un­suc­cess­ful. After the for­mal or­der was en­tered, the Crown ad­vised the Court of Appeal that the im­i­ta­tion-firearm offence was not yet in force on the date of the offence: the ap­pel­lant should not have been con­vict­ed of that count. The Court of Appeal said it did not have ju­ris­dic­tion to re-open the ap­peal but not­ed that the ap­pel­lant could use s. 70 of the Supreme Court Act. The Crown said that it would con­sent to the re­ver­sal in re­la­tion to the im­i­ta­tion-firearm count. The ap­pel­lant ap­pealed to the Supreme Court of Canada and brought a s. 70 mo­tion in re­la­tion to Count 8, to which the Crown con­sent­ed. The Supreme Court of Canada al­lowed the mo­tion and en­tered an or­der re­vers­ing the Court of Appeal judg­ment in part:R v Garcha (2001), Bulletin of Proceedings of the Supreme Court of Canada (16 February 2001) [Garcha SCC].

The por­tion of the judg­ment of the Court of Appeal for British Columbia dat­ed March 10, 2000 dis­miss­ing the ap­pel­lant’s ap­peal from his con­vic­tion on Count Eight for use of an im­i­ta­tion firearm on or about the 30th day of December, 1995, while com­mit­ting or at­tempt­ing to com­mit the in­dictable offence of rob­bery, con­trary to s. 85(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, is re­versed and an ac­quit­tal of the charge in Count Eight is en­tered in sub­sti­tu­tion there­of.

I found one in­stance where the Court de­clined to or­der re­ver­sal.R v Reddick, [1991] 1 SCR 297. In Reddick 1, the ap­pel­lant was seek­ing three con­vic­tions to be quashed, but the Crown re­spon­dent was con­sent­ing to “re­ver­sal of the Judgment, to the ex­tent that a new tri­al be or­dered.” The Court not­ed that the sec­tion “does not re­quire the con­sent of the ap­pel­lant but rather con­tem­plates a sit­u­a­tion in which the re­spon­dent con­sents to a dis­po­si­tion that gives the ap­pel­lant all the re­lief that would be avail­able if com­plete suc­cess were achieved on the ap­peal.” The Court de­clined to let the Crown con­sent to a dis­po­si­tion that would uni­lat­er­al­ly de­prive the ap­pel­lant of the out­come he was seek­ing. A few months lat­er, the ap­pel­lant con­sent­ed to a new tri­al and the Supreme Court of Canada al­lowed the new s. 70 mo­tion to re­verse the judg­ment of the Appeal Division of the Supreme Court of Nova Scotia and to or­der a new tri­al.R v Reddick, [1991] 1 SCR 1105 [Reddick 2].

Under s. 70, the Supreme Court of Canada has:

• al­lowed par­tial re­ver­sal of a judg­ment;Garcha SCC, supra note 4.
• sub­sti­tut­ed al­ter­na­tive or­ders in its place, in­clud­ing an or­der for a new tri­alReddick 2, supra note 6. and an or­der of ac­quit­tal on a sub­set of the counts;Garcha SCC, supra note 4. and
• sim­ply re­stored the or­der of the tri­al court.Canadian Pacific Ltd v Drumheller (City), [1988] 1 SCR 1901.

What precedential weight should be given to the reasons for a judgment reversed by consent?

In my view, the rea­sons of a Court of Appeal judg­ment that has been re­versed on con­sent should con­tin­ue to be con­sid­ered bind­ing prece­dent through the or­di­nary prin­ci­ples of stare de­ci­sis, un­less the Supreme Court of Canada re­jects the rea­son­ing.

I ac­knowl­edge there is am­bi­gu­i­ty or conflation of ter­mi­nol­o­gy, but the Supreme Court of Canada has oc­ca­sion­al­ly dis­tin­guished “judg­ment” and “rea­sons for judg­ment.”R v A, [1990] 1 SCR 992. In the con­text of the Supreme Court Act, judg­ment is rough­ly syn­ony­mous with or­der.The Supreme Court Act defines judgment to in­clude order. There are other settings in which the distinction may matter. See e.g. Canadian Imperial Bank of Commerce v Bury (1979), 103 DLR (3d) 560 (Alta. Q.B.) (dis­tin­guish­ing be­tween or­der and judg­ment but conflating nei­ther with the rea­sons). Appeals are from or­ders (judg­ments) and the dis­po­si­tion of an ap­peal turns on what the re­view­ing court does to the or­der (judg­ment).See also Canadian Express Ltd. v. Blair (1991), 6 OR (3d) 212 (Ont. Sup. Ct. (Gen. Div.)) (“Reasons for judgment do not constitute the judgment of the court. An appeal is not taken from the reasons for judgment but from the judgment itself... the reasons may by wrong but the order right.”) A re­view­ing court can com­plete­ly dis­agree with a low­er court’s rea­son­ing, yet dis­miss an ap­peal if the re­view­ing court leaves in place the low­er court’s or­der (judg­ment) on oth­er grounds. Or a re­view­ing court may not even have turned its mind to the rea­son­ing, yet re­verse a judg­ment, as the Supreme Court of Canada does in a s. 70 con­sent re­ver­sal.

Stare de­ci­sis “per­tains to the rea­sons giv­en by a court.”R v Sullivan, 2022 SCC 19 at para 56. Certainly, re­vers­ing the for­mal judg­ment has significance for the par­ties to the ac­tu­al case un­der ap­peal: a per­son might be ac­quit­ted or re­ceive a new tri­al. But the rea­sons are of­ten left unim­pugned by a con­sent re­ver­sal. Those rea­sons speak be­yond the par­tic­u­lar case.

Courts fre­quent­ly rely on rea­sons for points of law, even though the ul­ti­mate judg­ment may have been re­versed “on oth­er grounds.” A con­sent re­ver­sal is just a spe­cial case of this more gen­er­al oc­cur­rence. In fact, this is ex­act­ly how the Ontario Superior Court has treat­ed ALR.See R v Dutt, 2011 ONSC 3329 at para 54, citing R v ALR (1999), 141 CCC (4d) 151 (Man. C.A.). It cit­ed the Court of Appeal judg­ment in ALRIbid. and not­ed that it had been re­versed “on a different ba­sis.” In that us­age, the Ontario Superior Court was look­ing to an­oth­er ju­ris­dic­tion (Manitoba), so the Court of Appeal judg­ment was only per­sua­sive au­thor­i­ty, but it is a good demon­stra­tion nonethe­less.

In Sweet Productions Inc., the judg­ment re­versed this past week,Sweet Productions Inc et al v Licensing LP International SÀRL et al, 2022 FCA 111 (re­versed by con­sent, 21 September 2023). the Federal Court of Appeal re­ject­ed the Federal Court’s in­ter­pre­ta­tion that Rule 167 of the Federal Court Rules cre­ates a pre­sump­tion of dis­missal when un­due de­lay is found. Instead, the Federal Court of Appeal held that Rule 167 “grants the Court a wide dis­cre­tion to craft the rem­e­dy that is ap­pro­pri­ate in the cir­cum­stances of each case.” It can­not be that lit­i­gants and judges are free to ig­nore this rea­son­ing just be­cause the ul­ti­mate judg­ment was set aside by a s. 70 con­sent re­ver­sal.