Summaries Sunday: Supreme Advocacy

On one Sunday 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, Supreme Advocacy Letter, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with) (May 14 – June 10, 2015 inclusive).


Constitutional/Aboriginal Law: s.15
Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (35518)
To establish a prima facie violation of s. 15(1), a claimant must demonstrate the law at issue has a disproportionate effect on the claimant based on membership in an enumerated or analogous group; and the specific evidence required will vary depending on the context of the claim, but “evidence that goes to establishing a claimant’s historical position of disadvantage” will be relevant.

Criminal Law: Intoxication; General v. Specific Intent
R. v. Tatton, 2015 SCC 33 (SCC 35866)
Intoxication short of automatism is not a defence to arson.

Criminal Law: Jury Representation
R. v. Kokopenace, 2015 SCC 28 (35475)
Representativeness focuses on the process used to compile the jury roll, not its ultimate composition, and the state satisfies the right to a representative jury by providing a fair opportunity to participate in the jury process; and that happens where the state makes reasonable efforts to: (1) compile the roll using random selection from lists drawing from a broad cross-section (2) deliver jury notices to those who have been randomly selected.

Criminal Law: Pornography; Private Use Exception
R. v. Barabash,2015 SCC 29 (35977, 36064)
The test in Sharpe requires a determination the sexual activity depicted is lawful ― and so did not arise in the context of an exploitative relationship. Because the trial judge did not consider this specific question, a new trial is ordered.

Extradition: Legal Test; Comity
Canada (Attorney General) v. Barnaby, 2015 SCC 31 (35548)
The question is whether the Minister’s decision to surrender was reasonable, which requires the Minister to engage in a balancing exercise. The C.A. below failed to consider the principle of comity and Canada’s international obligations.

Extradition: “Shock the Conscience”
Caplin v. Canada (Justice), 2015 SCC 32 (35527)
To satisfy the Minister that extradition should be refused, it must be shown surrender would “shock the conscience” and thereby violate s. 7 of the Charter, or be “unjust or oppressive” under s. 44(1) of the Extradition Act.

Language Rights/Judges: Minority Language Rights; Reasonable Apprehension of Bias
Yukon Francophone School Board, Education Area #23 v.Yukon (Attorney General), 2015 SCC 25 (35823)
The test for reasonable apprehension of bias is what would a reasonable, informed person think. The objective is to ensure not only the reality, but the appearance of a fair adjudicative process (emphasis in original). Judges should avoid affiliations with certain organizations (such as advocacy or political groups) but are not required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest. As to whether the Yukon is required, by virtue of s. 6(1) of the Languages Act, to communicate with and provide services to the Board and its employees in French, there should be a new trial with the benefit of a full evidentiary record, not a dismissal of the claims.

Leaves to appeal

Customs: Classification
Igloo Vikski Inc. v. C.B.S.A.2014 FCA 266 (36258)
How are imported hockey gloves classified – wait, shouldn’t Canada be exporting them?

Judges in Quebec: Remuneration & Benefits
Conférence des juges de paix magistrats du Québec v. Québec (Procureur général)2014 QCCA 1654 (36165)
How are JP’s remunerated in Quebec.

Mortgages: Interest Rate
Equitable Trust Company v. Lougheed Block Inc., 2014 ABCA 234 (36123)
Does the federal Interest Act limit mortgage rates.


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