consent-reversal.html.pm

#lang pollen

◊define-meta[page-title]{◊@{Consenting to reverse under s. 70 of the ◊em{Supreme Court Act}}}
◊define-meta[short-title]{Consent reversals}
◊define-meta[snippet]{Consenting to reverse under s. 70 of the Supreme Court Act. What does this mean for precedent?}
◊define-meta[original-date]{2023-09-23}
◊define-meta[edited-date]{2023-10-03}

◊declare-work[#:id "SCA" #:type "statute" #:title "Supreme Court Act"
#:volume "R.S.C." #:year "1985" #:chapter "S-26" #:url
"https://laws-lois.justice.gc.ca/eng/acts/s-26/FullText.html"]

◊declare-work[#:id "SCA-1970" #:type "statute" #:title "Supreme Court Act"
#:volume "R.S.C." #:year "1970" #:chapter "S-19"]

◊declare-work[#:id "SCA-1952" #:type "statute" #:title "Supreme Court Act"
#:volume "R.S.C." #:year "1952" #:chapter "259"]

◊declare-work[#:id "SCA-1927" #:type "statute" #:title "Supreme Court Act"
#:volume "R.S.C." #:year "1927" #:chapter "35"]

◊declare-work[#:id "SCA-1906" #:type "statute" #:title "Supreme Court Act"
#:volume "R.S.C." #:year "1906" #:chapter "139"]

◊declare-work[#:id "SCA-1886" #:type "statute" #:title "The Supreme
and Exchequer Courts Act" #:volume "R.S.C." #:year "1886" #:chapter
"135"]

◊declare-work[#:id "SCA-1875" #:type "statute" #:title "An Act to
establish a Supreme Court, and a Court of Exchequer, for the Dominion
of Canada" #:volume "38 Vic" #:year "(1875)" #:chapter "11"]

◊declare-work[#:id "1857" #:type "statute" #:title "An Act to amend
the Laws in Upper Canada, respecting Appeals, and to alter the
Constitution of the Court of Error and Appeal" #:volume "20 Vic"
#:year "(1857)" #:chapter "5" #:url
"https://www.canadiana.ca/view/oocihm.9_00925_5/13"]

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 ◊em{stare decisis}.

The ◊em{Supreme Court Act}, s. 70 says:◊note{◊cite["SCA" #:pinpoint "s
70"] Previously, until December 12, 1988, this was at ◊cite["SCA-1970"
#:pinpoint "s. 75"] Before that, see ◊cite["SCA-1952" #:pinpoint
"s. 75" #:terminal ";"] ◊cite["SCA-1927" #:pinpoint "s 76" #:terminal
";"] ◊cite["SCA-1906" #:pinpoint "s 81" #:terminal ";"]
◊cite["SCA-1886" #:pinpoint "s 52"] It was originally introduced in
◊cite["SCA-1875" #:pinpoint "s 40"] It appeared in slightly altered
form in ◊cite["1857" #:pinpoint "s 9"]}

◊q{ 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 ◊em{Licensing IP International S.À.R.L., et al. v. Sweet
Productions Inc., et al.} (File
No. [40354](https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=40354)):

◊q{

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
◊em{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 ◊em{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 ◊em{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

}

◊sub-heading{How rare is this procedure?}

[Tom Slade
says](https://twitter.com/thomasslade/status/1704869901050003579),
"Very Rare!" [Bruce Ryder
says](https://x.com/BBRyder/status/1704911313766367694), "How
unusual." [Paul-Erik
Veel](https://x.com/PaulErikVeel/status/1704951493273493669) had not
needed to code for this event in the [Lenczner Slaght Supreme Court of
Canada Database](https://supremecourtdatabase.com/) until now.

Searching CanLII for ◊a[#:href
"https://www.canlii.org/en/#search/type=decision&startDate=1988-01-01&endDate=2023-12-31&sort=decisionDateAsc&text=%22Supreme%20Court%20Act%E2%80%9D%20%2Fs%20%E2%80%9Cs.%2070%22"]{◊tt{"Supreme
Court Act" /s "s. 70"} since 1988} and reviewing the
[Bulletins](https://decisions.scc-csc.ca/scc-csc/bulletins/en/nav_date.do?site_preference=normal)◊note{Thanks
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:

◊declare-work[#:id "Reddick1" #:type "legal-case" #:title "R v Reddick"
#:citation "[1991] 1 SCR 297" #:url "https://canlii.ca/t/1fsl2" #:short-form "*Reddick* 1"]

◊declare-work[#:id "Reddick2" #:type "legal-case" #:title "R v Reddick"
#:citation "[1991] 1 SCR 1105" #:url "https://canlii.ca/t/1fsl2" #:short-form "*Reddick* 2"]

◊declare-work[#:id "Mills" #:type "legal-case" #:title "R v Mills"
#:citation "[1995] 1 SCR 902" #:url "https://canlii.ca/t/1frm0"
#:short-form "Mills"]

◊declare-work[#:id "Shorting" #:type "legal-case" #:title "R v
Shorting" #:year "1996" #:citation "110 CCC (3d) 383" #:jurisdiction
"SCC" #:url "https://canlii.ca/t/gbgr2" #:short-form "Shorting"]

◊declare-work[#:id "RAL" #:type "legal-case" #:title "R v ALR" #:year
"2001" #:citation "[2001] 11 WWR 413" #:parallel-citation "Bulletin of
Proceedings of the Supreme Court of Canada (2 March 2001)" #:url
"https://canlii.ca/t/gbtnr"]

◊declare-work[#:id "GarchaSCC" #:type "legal-case" #:title "R v
Garcha" #:citation "Bulletin of Proceedings of the Supreme Court of
Canada (16 February 2001)" #:year "2001" #:url
"https://decisions.scc-csc.ca/scc-csc/bulletins/en/298/1/document.do"
#:short-form "*Garcha* SCC"]


◊itemize{

◊cite["Reddick2"]

◊cite["Mills"]

◊cite["Shorting"]

◊cite["GarchaSCC"]

◊cite["RAL"]

}

And searching CanLII for ◊a[#:href
"https://www.canlii.org/en/#search/type=decision&startDate=1952-01-01&endDate=1988-12-31&sort=decisionDateAsc&text=%22Supreme%20Court%20Act%E2%80%9D%20%2Fs%20%E2%80%9Cs.%2075%22"]{◊tt{"Supreme
Court Act" /s "s. 75"} between 1952 and 1988} revealed two s. 70
reversals:

◊declare-work[#:id "Jackson" #:type "legal-case" #:title "Jackson v
The Queen" #:citation "[1979] 2 SCR 707" #:url
"https://canlii.ca/t/1z78c"]

◊declare-work[#:id "CNR" #:type "legal-case" #:title "Canadian Pacific
Ltd v Drumheller (City)" #:citation "[1988] 1 SCR 1901" #:url
"https://canlii.ca/t/1ftcg"]

◊itemize{

◊cite["Jackson"]

◊cite["CNR"]

}


Do not take the above as exhaustive. There are more of these reversals
than appear in CanLII's dataset. The reversal in ◊em{Garcha} is not
indexed by CanLII. And in ◊em{Reddick}, Justice Sopinka noted that
"[a] similar order granting a judgment of reversal was given by
McLachlin J. in ◊em{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 ◊em{McCaul} by looking at the docket (File
No. [21634](https://scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=21634)).

◊declare-work[#:id "GarchaCA" #:type "legal-case" #:title "R v Garcha"
#:citation "2000 BCCA 550" #:url "https://canlii.ca/t/1fngr" #:short-form "*Garcha* CA"]

◊sub-heading{How are consent reversals used?}

A good example is ◊em{R. v. Garcha}.◊note-cite["GarchaCA"
#:parenthetical "the reversal is not found in CanLII"] In ◊em{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. ◊em{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
◊em{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:◊note-cite["GarchaSCC"]

◊q{

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 ◊em{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.◊note-cite["Reddick1"] In ◊em{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 ◊em{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.◊note-cite["Reddick2"]

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

◊itemize{

allowed partial reversal of a judgment;◊note-cite["GarchaSCC"]

substituted alternative orders in its place, including an order for a
new trial◊note-cite["Reddick2"] and an order of acquittal on a subset
of the counts;◊note-cite["GarchaSCC"] and

simply restored the order of the trial court.◊note-cite["CNR"]

}


◊sub-heading{What precedential weight should be given to the reasons
for a judgment reversed by consent?}

◊declare-work[#:id "Sullivan" #:type "legal-case" #:title "R v
Sullivan" #:citation "2022 SCC 19" #:url
"https://canlii.ca/t/jp64b#par56"]

◊declare-work[#:id "RA" #:type "legal-case" #:title "R v A" #:citation
"[1990] 1 SCR 992" #:url "https://canlii.ca/t/1fsxf"]

◊declare-work[#:id "CIBC" #:type "legal-case" #:title "Canadian
Imperial Bank of Commerce v Bury" #:citation "103 DLR (3d) 560" #:year
"1979" #:jurisdiction "Alta. Q.B."]

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 ◊em{stare decisis}, unless
the Supreme Court of Canada rejects the
reasoning.

◊declare-work[#:id "Canadian Express" #:type "legal-case" #:title
"Canadian Express Ltd. v. Blair" #:citation "6 OR (3d) 212" #:year
"1991" #:url "https://canlii.ca/t/g1cmw" #:jurisdiction
"Ont. Sup. Ct. (Gen. Div.)" #:short-form "Canadian Express"]

I acknowledge there is ambiguity or conflation of terminology, but the
Supreme Court of Canada has occasionally distinguished "judgment" and
"reasons for judgment."◊note-cite["RA"] In the context of the
◊em{Supreme Court Act}, ◊em{judgment} is roughly synonymous with
◊em{order}.◊note{The ◊em{Supreme Court Act} defines judgment to
◊em{include} order. There are other settings in which the distinction
may matter. See e.g. ◊cite["CIBC" #:parenthetical "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).◊note{◊see-also["Canadian Express" #:terminal ""] ("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.

◊em{Stare decisis} "pertains to the reasons given by a
court."◊note-cite["Sullivan" #:pinpoint "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 ◊em{reasons} are often left unimpugned by a consent
reversal. Those reasons speak beyond the particular case.

◊declare-work[#:id "Dutt" #:type "legal-case" #:title "R v Dutt"
#:citation "2011 ONSC 3329" #:url "https://canlii.ca/t/flqc4"
#:short-form "Dutt"]

◊declare-work[#:id "ALR-CA" #:type "legal-case" #:title "R v ALR"
#:citation "141 CCC (4d) 151" #:jurisdiction "Man. C.A." #:year "1999"
#:url "https://canlii.ca/t/1flcv"]

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
◊em{ALR}.◊note{◊see["Dutt" #:pinpoint "para 54" #:terminal ""], citing
◊cite["ALR-CA"]} It cited the Court of Appeal judgment in
◊em{ALR}◊note-cite["ALR-CA"] 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.

◊declare-work[#:id "Sweet" #:type "legal-case" #:title "Sweet
Productions Inc et al v Licensing LP International SÀRL et al"
#:citation "2022 FCA 111" #:url "https://canlii.ca/t/jprg3"
#:short-form "Sweet Productions"]

In ◊em{Sweet Productions Inc.}, the judgment reversed this past
week,◊note-cite["Sweet" #:parenthetical "reversed by consent, 21
September 2023"] the Federal Court of Appeal rejected the Federal
Court's interpretation that Rule 167 of the ◊em{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.