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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. It’s a summary of all appeals and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (November 12 – December 11, 2015 inclusive).

Oral Judgments

Criminal Law: Dangerous Driving Causing Death; Test For Mens Rea
R. v. Hecimovic, 2014 BCCA 483(36260) 2015 SCC 54

Justice Abella: “The majority is of the view that the appeal should be dismissed …” The B.C.C.A. (by majority) ordered a new trial; clarification of subjective v. objective conduct.

Criminal Law: Jury Instructions re Homicide
R. v. Neville, 2015 NLCA 16(36412) 2015 SCC 49

The Chief Justice: “…The jury in its final question asked the judge to clarify the distinction between “to kill” and “to murder”. This raised the question of intent in relation to the charges of murder and attempted murder. The judge should have clarified the nature of the concern, and then addressed it. Instead, the judge merely referred the jury to the written instructions he had previously given the jury. … The appeal is allowed, the verdicts are set aside, and a new trial ordered on both charges.”

Criminal Law: Importing & Possession for the Purposes
R. v. Singh Riar, 2015 ONCA 350 (36449) 2015 SCC 50

The Chief Justice: “We are all of the view that the appeal should be allowed … The conviction is set aside and a new trial is ordered.” Justice Laskin (dissenting in the C.A.) focused on a ‘litany of errors’ in assessing the appellant’s evidence and in rejecting the appellant’s denial of allegations which materially affected credibility assessment.

Appeals

Class Actions: Limitation Periods & Related Issues
Canadian Imperial Bank of Commerce v. Green2015 SCC 60 (35807, 35811, 35813)

Section 28 of the Class Proceedings Act suspends the limitation period in s. 138.14 of the Ontario Securities Act applicable to a statutory cause of action under s. 138.3 when the action is commenced, that is, when leave is granted under s. 138.8. While courts have the inherent jurisdiction to issue orders nunc pro tunc for leave to proceed with an action where leave is sought prior to the expiry of the limitation period, the doctrine of special circumstances is of no avail to the plaintiffs herein since neither the limitation period in s. 138.14 nor the leave requirement in s. 138.8 can be defeated by amending the pleadings to include a statutory claim under s. 138.3. Threshold for leave under s. 138.8: a reasonable or realistic chance that the action will succeed.

Constitutional Law: Division of Powers; Bankruptcy and Insolvency; Property & Civil Rights
407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52 (35696)

Ontario’s Highway 407 Act (a debt enforcement mechanism in favour of the private owner and operator of an open-access toll highway) conflicts with the federal Bankruptcy and Insolvency Act (a discharged bankrupt is released from all provable claims) ̶ it offends the doctrine of federal paramountcy and is inoperative to the extent of the conflict.

Constitutional Law: Division of Powers; Bankruptcy and Insolvency; Property & Civil Rights
Alberta (Attorney General) v. Moloney, 2015 SCC 51 (35820) 

The doctrine of paramountcy dictates s. 102 of Alberta Traffic Safety Act is inoperative to the extent it conflicts with the federal Bankruptcy and Insolvency Act, and in particular s. 178(2). Alberta cannot therefore withhold driving privileges on the basis of an unsatisfied but discharged judgment debt.

Constitutional Law: Division of Powers; Bankruptcy and Insolvency; Property & Civil Rights
Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53 (35923)

The Court of Appeal’s conclusion that Part II of the Saskatchewan Farm Security Act is constitutionally inoperative where an application is made to appoint a receiver pursuant to s. 243(1) of the Bankruptcy and Insolvency Act, is set aside. Provincial farm legislation does not conflict with a national federal receivership regime.

Constitutional Law: Language Rights
Caron v. Alberta (including Boutet v. R.), 2015 SCC 56 (35842)

Absent some entrenched guarantee, provinces have authority to decide the language(s) used in its legislative process, and may choose to enact its laws and regulations in French and English. Courts cannot infer a guarantee of legislative bilingualism overriding this exclusive provincial jurisdiction absent clear textual and contextual evidence to support an entrenched right.

Criminal Law: Military Justice System; Overbreadth; s. 52
R. v. Moriarity, (including appeals of R. v. Vezina & R. v. Arsenault) 2015 SCC 55 (35755) (35873) (35946)

Both ss. 130(1) (a) and 117 (f) of the National Defence Act engage the liberty interest of individuals subject to the military Code of Service Discipline. So for these provisions to comply with s. 7 of the Charter, deprivation of liberty must be done in accordance with the principles of fundamental justice. That a law must not be overbroad is a principle of fundamental justice, and is one of the minimum requirements that affect a person’s life, liberty or security.

Extradition
M.M. v. United States of America, 2015 SCC 62 (35838)

The Minister’s decision to extradite was upheld: reviewed the relevant facts, applied the correct legal principles to the submissions and evidence, gave serious consideration to the best interests of the children and weighed them with other relevant considerations.

Immigration Law: People Smuggling & Admissibility
B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 (35388, 35688, 35685, 35677)

Section s. 37(1) (b) of the IRPA applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. Acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling. A migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1) (b).

Immigration Law: People Smuggling & Refugee Status
R. v. Appulonappa,2015 SCC 59 (35958)

Similar summary to that immediately above.

Immigration & Refugees: Humanitarian and Compassionate Relief
Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (35990)

Focus should be on the equitable underlying purpose of the humanitarian and compassionate relief application process, not seeing the guidelines as the only possible formulation for relief.

Intellectual Property: Broadcast Licences
Canadian Broadcasting Corp v. SODRAC 2003 Inc., 2015 SCC 57 (35918)

Broadcasting a program that uses copyright-protected music engages the right to communicate the work to the public by telecommunication, a right that rests exclusively with the copyright holder for that musical work, so broadcasters must secure a licence. The Board here was correct in finding broadcast-incidental copying engages the reproduction right, consistent with Bishop v. Stevens, [1990] 2 S.C.R. 467, and the context of the statutory scheme set out in the Copyright Act. However, the Board herein erred failing to consider the principles of technological neutrality and balance in setting the valuation of this particular licence, so the matter is remitted back to the Board for reconsideration.

Leaves to appeal granted

Arbitration: Court Review
B.C. (Ministry of Forests) v. Teal Cedar Products Ltd., 2015 BCCA 263 (36595)

On what basis/bases can an arbitration award be J.R.’d.

Elections: Third Party Spending; Freedom of Expression
B.C. Freedom of Information and Privacy Association v. B.C. (Attorney General), 2015 BCCA 172 (36495)

Is it appropriate for the B.C. Election Act to require third party sponsors of election advertising during a campaign period to register with the Chief Electoral Officer.

Insurance in Québec: No Fault; Motions to Strike
Gargantiel v. Québec (Attorney General), 2015 QCCA 224 (36388)

Can one sue outside of the no‑fault public automobile insurance scheme under the Québec Automobile Insurance Act.

Insurance in Québec: No Fault; Separate Civil Actions
Pagé v. Godbout, 2015 QCCA 225 (36385) 

Same summary as above.

Professions: Validity of Mandatory C.L.E.
Green v. Law Society of Manitoba, 2015 MBCA 67 (36583)

Is MCLE valid, and do principles of natural justice apply.

Tax: Rectification
Canada (A.G.) v. Groupe Jean Coutu (PJC) inc., 2015 QCCA 838 (36505)

Can rectification be used to find a tax-neutral solution to a currency hedge issue.

Tax: Rectification
Fairmont Hotels Inc. v. Canada (Attorney General)2015 ONCA 441 (36606)

Can the doctrine of rectification be used to address a foreign exchange tax exposure.

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