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 (Mar. 17, 2017 to April 20, 2017 inclusive).


Civil Law: Acquisitive Prescription

Ostiguy v. Allie, 2017 SCC 22 (36694)

The Code of Québec has not changed the process of acquisitive prescription, which may be set up against the registered owner regardless of when his or her right was registered. On the one hand, acquisitive prescription remains a recognized means of acquiring immovable real rights in Québec civil law and, on the other hand, the publication of rights system provided for in the Code retains the limited role it had under the C.C.L.C.; the effect of these distinct roles is that rights validly acquired by prescription apply regardless of the rights registered in the land register.

Criminal Law: Bail Pending Appeal

R. v. Oland, 2017 SCC 17 (36986)

Appellate judges will draw on their legal expertise and experience in evaluating factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. When conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public ̶ someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. Public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not. A panel reviewing a decision of a single judge under s. 680(1) is to be guided by three principles: absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact; the review panel may intervene and substitute its decision for that of the judge where it is satisfied the judge erred in law or in principle, and the error was material to the outcome; in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes the decision was clearly unwarranted.

Criminal Law: Confessions; Warrantless Entry

R. v. Paterson, 2017 SCC 15 (36472)

The confessions rule has no application here. The police entry into the residence was not justified by exigent circumstances making it impracticable to obtain a warrant; evidence obtained therefrom is excluded under s. 24(2). It is unnecessary to decide whether a late and incomplete report could itself be a ground for a finding of an infringement of s. 8, and whether there was in fact such a breach.

Insurance in Québec: Injury by Third Parties

Godbout v. Pagé, 2017 SCC 18 (36385) (36388)

Additional bodily injury suffered by Ms. Godbout and by Mr. Gargantie is an injury “suffered . . . in an accident” within the meaning of the Automobile Insurance Act. They are therefore entitled to the compensation provided for in the Act but not entitled to bring further civil liability proceedings to obtain additional or complementary compensation.

Professions: Mandatory CLE

Green v. Law Society of Manitoba, 2017 SCC 20 (36583)

If lawyers fail to complete the required hours of mandatory CLE even after having been warned, temporary suspension until completed is a reasonable way to ensure compliance. Suspension is administrative, not punitive, in nature.


Oral Judgments

Criminal Law: Role of Courts of Appeal

R. v. S.B., 2017 SCC 16, 2016 NLCA 20 (37042)

The Chief Justice: “We would allow the appeal and order a new trial on all the charges, for the reasons of Chief Justice Green.” [C.J. Green was of the view that ‘it is not appropriate for appeal courts to draw their own conclusions re the strength and significance of evidence improperly admitted/excluded’].

Criminal Law: Historical Sexual Offences

R. v. Savard, 2017 SCC 21, 2016 QCCA 380 (36908)

Justice Wagner: “This appeal as of right is based on the dissent of one judge in the Quebec Court of Appeal. The appellant was found guilty by Judge Michel Boudreault of the Court of Québec of having committed a number of sexual offences on his nephews and niece dating back to the 1960s. A majority of the judges of this Court agree with the reasons of the majority of the Court of Appeal. Côté J. would have ordered a new trial for the reasons of the dissenting judge in the Court of Appeal. For these reasons, the appeal is dismissed.”

Insurance in Québec: Exclusions; Police Chases

Desjardins Financial Security Life Assurance Company v. Émond, 2017 SCC 19, 2016 QCCA 161 (36919)

Justice Wagner: “The appellant argues that the broad exclusion clause in the accident insurance contract to the effect that the insurer will pay no benefits if an accident occurred while the insured was participating in an indictable offence may be set up against the heirs of the insured. In this case, the offences of which the insured could have been convicted had he not died are hybrid offences that the Crown may choose to prosecute either as summary conviction offences or as indictable offences. For the reasons given by the Court of Appeal, we are all of the opinion that the exclusion from the insurance policy based on art. 2402 of the Civil Code of Québec may not be set up against the heirs of the insured, as that article must, even in light of s. 34(1) of the federal Interpretation Act, R.S.C. 1985, c. I-21, be interpreted having regard to the principles of interpretation that apply in the area of insurance law so as to favour the precision and certainty of the grounds for exclusion in such matters. On this basis, art. 2402 of the Civil Code of Québec concerns only indictable offences, those that are punishable exclusively by way of indictment, and not, as in this case, hybrid offences. For these reasons, the appeal is dismissed with costs.”


Leaves to Appeal Granted

Charter: Religious Freedom

Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (37273) 

Can secular courts make religious decisions.

Civil Procedure in Québec: Good Faith Principle

Churchill Falls (Labrador) Corporation Ltd. v. Hydro-Québec, 2016 QCCA 1229 (37238)

When/how does the principle of good faith in Québec civil law apply to contracts.

Criminal Law: (Alleged) Ineffective Assistance of Counsel

R. v. Wong, 2016 BCCA 416 (37367)

Did ineffective assistance of counsel occur, and what are the ramifications.

Human Rights/Charter/Aboriginal Law: Equality Challenges; Jurisdiction

Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (37208)

What cases can be brought to a human rights tribunal, and which ones have to go to court.

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