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).


Criminal Law: Bail

R. v. Antic, 2017 SCC 27 (36783)

The “ladder principle”, codified in s. 515(3) of the Code, requires imposition of the least onerous form of release unless the Crown shows why that should not be. The following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

  • Accused’s are constitutionally presumed innocent; the corollary to the presumption of innocence is the constitutional right to bail.
  • Section 11 (e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.
  • Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).
  • The ladder principle articulates the manner in which alternative forms of release are to be imposed; according to it, “release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”, Anoussis, at para. 23; this principle must be adhered to strictly.
  • If the Crown proposes an alternative form of release, it must show why this is necessary; the more restrictive the form of release, the greater the burden on the accused; thus, one cannot impose a more restrictive form unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.
  • Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release; where the parties disagree on the form of release, it is an error of law to order a more restrictive form of release without justifying the decision to reject the less onerous forms.
  • A recognizance with sureties is one of the most onerous forms of release and should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.
  • It is not necessary to impose cash bail if accused’s or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court; a recognizance is functionally equivalent to cash bail and has the same coercive effect; thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.
  • When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order; as a corollary there is a positive obligation, when setting the amount, to inquire into the ability of the accused to pay; the amount of cash bail must be proportionate to the means of the accused and the circumstances of the case.
  • Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure the accused can be released, and must not be imposed to change an accused’s behaviour or to punish.
  • Where bail review is applied for, the court must follow the bail review process set out in St-Cloud.

Where the Crown and accused negotiate a plan of release and present it on consent, the principles and guidelines outlined above do not strictly apply. Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.

Criminal Law: Doubling-down on Jordan

R. v. Cody, 2017 SCC 31 (37310) Jordan applies, as is.

The framework now governs the s. 11 (b) analysis and, properly applied provides sufficient flexibility and accounts for the transitional period of time required for the criminal justice system to adapt. When considering transitional exceptional circumstances, trial judges should be mindful what portion of the proceedings took place before or after Jordan was released.

Human Rights: Drug Dependency

Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (36636)

Did an employer terminate employment because of addiction to cocaine (raising a prima facie case of discrimination), or for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). Essentially a question of fact, for the Tribunal to determine. The Tribunal concluded the employer terminated for breach of its Policy, and the Tribunal’s conclusion was reasonable.

Professions in Québec: Legal Fees; Prescription

Pellerin Savitz LLP v. Guindon, 2017 SCC 29 (36915)

Under art. 2880 para. 2 of the Civil Code of Québec what is the date on which the law firm’s right to claim its fees arose. The question requires nothing more than a factual determination based on the specific case before the court. Having regard to the wording of the fee agreement herein and the content of the invoices sent by the law firm, prescription began to run on the 31st day after each invoice was sent, not on termination of the parties’ contractual relationship.

Torts: Proving Mental Injury

Saadati v. Moorhead, 2017 SCC 28 (36703)

The S.C.C. has never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury; nor would that be desirable. The elements of the cause of action of negligence, together with the threshold in Mustapha v. Culligan of Canada Ltd. [2008] 2 S.C.R. 114, at para. 9 furnish a sufficiently robust array of protections against unworthy claims.

Oral Judgments

Criminal Law: Search & Seizure; Right to Counsel 

R. v. Patrick, 2017 BCCA 57 (37514)

Was seizure here lawful, and was there appropriate right to counsel.

Leaves to Appeal Granted

Criminal Law: Victim Surcharges

Boudreault v. R., 2016 QCCA 1907 (37427)

Alex Boudreault plead guilty to four counts relating to various breaches of probation orders. A few months later, Mr. Boudreault plead guilty to other counts relating to breaches of a recognizance, breaking and entering dwellinghouses, attempted break and enter, possession of stolen property, assault with a weapon and possession of a prohibited weapon. The Court of Québec sentenced Mr. Boudreault to 36 months and ordered a victim surcharge of $1,400. The same judgment rejected Mr. Boudreault’s arguments to the effect the victim surcharge provided for in s. 737 of the Criminal Code infringed s. 12 of the Charter. The majority of the C.A. held the surcharge did not amount to cruel and unusual punishment. Duval Hesler C.J. would have allowed the appeal in part to declare s. 737 unconstitutional.

Municipal Law in Québec: By-Laws

2646-8926 Québec inc. v. Lorraine (Town of), 2016 QCCA 1803 (37381)

On July 7, 1989, the Respondent 26468926 Québec inc. paid $1,286K to purchase land in a residential zone of the Applicant Town of Lorraine. In 1991, the Town passed a bylaw (bylaw U91, replaced in 2010 by bylaw URB03) that changed the zoning for 60% of the Respondent’s land in order to create a conservation zone, thereby preventing any residential development on that part of the land. In late 2001, the Respondent’s majority shareholder learned of the bylaw and discovered the Applicant had put in some infrastructures for hiking and crosscountry skiing on part of its land, including culverts, stairs, fences and public benches. After contacting the Town, which refused to amend its bylaw, the Respondent brought an action in nullity against the bylaw in November 2007, seeking damages and the removal of the infrastructures. It also brought an action in nullity against bylaw 1002 of the Applicant Regional County Municipality of ThérèsedeBlainville, which implemented a development plan that also changed the zoning for the Respondent’s land. Quebec Superior Court: action in nullity dismissed. C.A.: appeal allowed.

Criminal Law: Failure to Stop at the Scene

R. v. Seipp, 2017 BCCA 54 (37513)

Following a break and enter into a home and a theft of a vehicle, one of the homeowners in another car saw Mr. Seipp driving the stolen car. He tried to overtake him and a collision resulted. A passenger in the vehicle driven by the homeowner was injured. Mr. Seipp fled from the scene of the accident without providing his name or address. At trial, he denied stealing the car. He admitted he had been driving the car. He claimed he fled the scene because he suspected it was stolen. At the end of the defence’s case, defence counsel admitted failing to stop and remain at the scene of an accident was made out. Provincial Court of B.C.: convictions for leaving the scene of an accident and other offences; acquittals on other counts. C.A.: appeal from convictions dismissed.

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