Summaries Sunday: Supreme Advocacy

On the second Sunday in each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, SupremeAdvocacyLett@r, to which you may subscribe.

This first entry is a summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with) from January 1 – April 12, 2013. For leaves, both the date the S.C.C. granted leave and the date of the C.A. judgment below are added in, in case you want to track and check out the C.A. judgment.


Criminal Law: Sexual Offences; Severing Counts
R. v. F.O.B. (B.C.C.A., Mar. 22, 2012) (34889) Feb. 15, 2013
Chief Justice: “We are all of the view that the appeal should be allowed, for the reasons of Chief Justice Finch.”
Criminal Law: Sexual Offences; Evidence Assessment
R. v. P.G.T. (N.L.C.A., June 13, 2012) (34934) Mar. 1, 2013
Justice Fish: “The appeal is allowed for the reasons given by Hoegg J.A. in the Court of Appeal and the conviction entered by the trial judge is restored. Fish and Cromwell J.J., dissenting, would have affirmed the judgment of the Court of Appeal ordering a new trial.”


Aboriginal Law: Métis
Manitoba Metis Federation Inc. v. Canada (A.G.)(Man. C.A., July 7, 2010) (33880) Mar. 8, 2013
Section 31 of the Manitoba Act constituted a constitutional obligation to Métis people, to provide children with allotments of land. The obligation did not impose a fiduciary or trust duty on the government. However, it engaged the honour of the Crown, which required the government to act with diligence in pursuit of the fulfillment of the promise. The claim based on the honour of the Crown is not barred by the law of limitations or the equitable doctrine of laches.

Bankruptcy & Insolvency: Pensions
Sun Indalex Finance, LLC v. United Steelworkers (Ont. C.A., April 7, 2011; Sept. 7, 2011) (34308) Feb. 1, 2013
Secured creditors take priority over pensioned employees.

Civil Procedure/Police: Issue Estoppel
Penner v. Niagara (Regional Police Services Board) (Ont. C.A., Sept. 27, 2010) (33959) April 5, 2013
There is not and should not be a rule of public policy precluding the applicability of issue estoppel to police disciplinary hearings based upon judicial oversight of police accountability; instead there should be a flexible approach, whereby courts have the discretion to refuse to apply issue estoppel if it will work an injustice, even where the preconditions have been met.

Criminal Law: Conspiracy
R. v. J.F. (Ont. C.A., April 6, 2011) (34284) Mar. 1, 2013
A person can be a party to the offence of conspiracy as a matter of law under s. 21. [emphasis in original]. Where a person, with knowledge of a conspiracy does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.

Criminal Law: Duress
R. v. Ryan (N.S. C.A., Mar. 29, 2011) (34272) Jan. 18, 2013
An accused, because of their criminal involvement, who knows coercion or threats are a possibility, cannot claim duress.

Criminal Law: Evidentiary Reliability; Burden; Trial Judge ‘Self-Instruction’
R. v. Sanichar (Ont. C.A., Feb. 22, 2012) (34720) Jan. 24, 2013
Whether to self-instruct by a trial judge is discretionary, and there is no requirement to do so as a matter of law.

Criminal Law: Forfeiture
R. v. Manning (Que. C.A., May 16, 2011) (34358) Jan. 17, 2013
A truck driven while impaired can be forfeited.

Criminal Law: Immigration Consequences To Sentencing
R. v. Pham (Alta. C.A., June 28, 2012) (34897) Mar. 14, 2013
When two possible sentences are both appropriate as regards the gravity of an offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. Collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

Criminal Law: Informer Privilege
R. v. Named Person B (Que. S.C., Sept. 17, 2010) (34053) Feb. 22, 2013
Confidentiality an informer was promised by a first police force continued when they transferred him to another force.

Criminal Law: Police Interception Of Text Messages
R. v. TELUS (Ont. S.C., Mar. 4, 2011) (34252) Mar. 27, 2013
Police require a search warrant to access text messages.

Criminal Law: Trial Judge Opinions
R. v. Mailhot (Que. C.A., May 23, 2012) (34881) Mar. 28, 2013
A new trial in this case is required because of the effect of the trial judge’s charge on the fairness of the trial

Criminal Law: Uttering Threats
R. v. O’Brien (Man. C.A., January 26, 2012) (34694) Jan. 17, 2013
(Supreme Advocacy LLP’s own Marie-France Major [winning] co-counsel [with Michael Cook] at the S.C.C.)
It is not an essential element that the person threatened feel intimidated or be shown to have taken them seriously. All that need be proven is they were intended by the accused to have that effect. [emphasis in original]

Family Law In Quebec: Common Law Spouses
Quebec (Attorney General) v. A (Que. C.A. Nov. 3, 2010) (33990) Jan 25, 2013
De facto’ spouses in Quebec cannot sue for spousal support.

Human Rights: Hateful Speech
Saskatchewan (Human Rights Commission) v. Whatcott (Sask. C.A., Feb. 25, 2010) (33676) Feb. 27, 2013
The Saskatchewan Human Rights Code, which prohibits the publication or display of any representation “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground”, is constitutional.

Municipal Law: Expropriation
Antrim Truck Centre Ltd. v. Ontario (Transportation)(Ont. C.A., June 2, 2011) (34413) Mar. 7, 2013
The reasonableness of interference must be determined by balancing the competing interests, as in all other cases of private nuisance, and that balance is appropriately struck by whether, in all of the circumstances, the individual claimant shouldered a greater share of the burden of construction than would be reasonable to expect individuals to bear without compensation.

Torts: Medmal
Ediger v. Johnston (B.C.C.A., May 30, 2011) (34408) Apr. 4, 2013
The trial judge was correct to find an obstetrician was negligent in the circumstances here by failing to ensure back-up surgical C-section staff would be immediately available.


Aboriginal Law: Title
Is there aboriginal title and a right to harvest here.
William, et al. v. Province of B.C., et al. (B.C.C.A., June 27, 2012) (34986) Jan. 24, 2013

Contracts: Arbitration Award
What is the appropriate arbitrated finder’s fee for a mining deposit acquisition.
Sattva Capital Corporation v. Creston Moly Corporation (B.C.C.A., Aug. 7, 2012) (35026) Mar. 7, 13

Criminal Law: Child Porn (On Your Sister’s Computer)
Is there possession and making porn available by using a peer-to-peer file-sharing software program that connects users (on your sister’s computer) over the internet.
Spencer v. R. (Sask. C.A., Nov. 25, 2011) (34644) Jan. 24, 2013

Criminal Law: Constitutionality Of NCR Orders
Are NCR orders contrary to ss. 7 & 9.
A.G. Canada v. Kobzar (Ont. C.A., May 16, 2012) (34925) Jan. 24, 2013

Criminal Law: “Mr. Big”
There is a publication ban in this case, in the context of admissibility of evidence flowing from an RCMP “Mr. Big” sting.
R. v. N.L.H. (N.L. C.A., Sept. 17, 2012) (35049) Feb. 28, 2013

International Law: State Immunity
Is there state immunity where a Canadian citizen is arrested, detained, tortured and killed by State authorities in Iran.
Estate of Kazemi et al. v. Iran et al. (C.A. of Que., Aug. 15, 2012) (35034) Mar. 7, 13

Maritime Law: Fishing For Crab But Catching Telephone Cables
Is the crab fisherman liable in damages to telecoms.
Peracomo Inc., et al. v. Telus, et al. (Fed. C.A., June 29, 2012) (34991) Jan. 24, 2013

Professions: Mandatory Retirement
Is there mandatory retirement for private practice lawyers in B.C.
McCormick v. Faskens (B.C.C.A., July 19, 2012) (34997) Mar. 7, 13

Workers Comp: Chronic Stress
Is chronic stress eligible for Workers Comp.
Douglas Martin v. Workers’ Compensation Board of Alberta et al. (Alta. C.A., Aug. 29, 2012) (35052) Mar. 7, 2013

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