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 (January 1st — 27th, 2017 inclusive).
Constitutional/Administrative Law: Charter Damages; Judicial Review
Ernst v. Alberta Energy Regulator, 2017 SCC 1 (36167)
The Charter damages claim is struck. Whether Charter damages could be an appropriate remedy concerns how to strike an appropriate balance to best protect two important pillars of our democracy: constitutional rights and effective government. Charter damages may vindicate Charter rights, provide compensation and deter future violations, but may also inhibit effective government, and remedies other than damages may provide substantial redress for claimants without having broader adverse impact.
Elections: “Small-Scale” Advertising; s.1 Requirements
B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6 (36495)
B.C.’s Election Act, which requires individuals or organizations wishing to “sponsor election advertising” to register with the province’s Chief Electoral Officer, does not catch small-scale election advertising such as displaying homemade signs in windows, putting bumper stickers on cars, or wearing T-shirts with political messages. Re s.1, by not leading social science evidence, A.G.B.C. seriously diminished its ability to justify the infringement of a Charter right, but has not eliminated it – “though logic and reason, without assistance, can only go so far, they can go far enough”.
Insurance: Underinsured Motorist Coverage
Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7 (36575)
The SEF 44 endorsement for excess insurance, sometimes called Special or Family Protection Endorsements, indemnifies insureds for any shortfall in payment of a judgment for damages against an underinsured tortfeasor, subject to the deductions set out in the endorsement itself. Any average person applying for this additional insurance coverage would understand a “policy of insurance” to mean an optional, private insurance contract and not a mandatory statutory scheme such as the CPP; so future CPP disability benefits do not reduce the amount payable by the insurer under the endorsement.
Justice Moldaver: “… Because we have concluded that a new trial must be ordered, we need not finally decide whether the impugned evidence of the Crown’s DNA expert as to the source of the complainant’s DNA … was or was not admissible. If an attempt is made to tender that evidence at the new trial, a voir diremay be required to determine whether it is sufficiently reliable to warrant its reception. It could conceivably amount to circumstantial evidence, derived from the expert’s experience, from which an inference as to the origin of the complainant’s DNA could reasonably be drawn. Alternatively, it might prove to be purely speculative, with little or no scientific foundation … In our respectful view, the materially different levels of scrutiny to which the evidence of the two experts was subjected – none for the Crown expert and intense for the defence expert – was unwarranted, and it tended to shift the burden of proof onto the appellant. In these circumstances, we feel obliged to quash the conviction and order a new trial.”
The Chief Justice: “We are all of the view that the appeal should be dismissed, substantially for the reasons of Justice Frankel in the Court of Appeal.”
The Chief Justice: “The defence of officially induced error of law is intended to protect a diligent person who first questions a government authority about the interpretation of legislation so as to be sure to comply with it and then is prosecuted by the same government for acting in accordance with the interpretation the authority gave him or her. We have serious reservations about the very possibility of a government official raising the defence of officially induced error of law in relation to the performance of his or her duties. This being said, we all agree that the conditions under which this defence is available are not met here: see Lévis (City) v. Tétreault, 2006 SCC 12,  1 S.C.R. 420. In particular, considered objectively, the third and fourth conditions – that the advice obtained came from an appropriate official and that the advice was reasonable – are not satisfied. For these reasons, the appeal is dismissed.”
The Chief Justice: “We are all of the view that the appeal should be dismissed for the reasons of Chief Justice Richards in the Court of Appeal.”
Leaves to Appeal
Criminal Law: Refusal to Blow; Sentencing
R. v. Suter, 2016 ABCA 235 (37247)
What is the appropriate sentence for DUI causing death.