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 as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (October 24 – November 15, 2018 inclusive).
The Chief Justice: “Mr. Normore was convicted at trial of attempting to commit murder, uttering a threat to cause death, and breaking and entering a place and committing attempted murder … We are of the view that the trial judge did not err in the way in which he addressed a witness’s refusal to answer a question put to him by defence counsel. It was open to the trial judge to take further steps to attempt to elicit an answer from the witness. However, in all the circumstances of this case, including the marginal bearing of defence counsel’s line of questioning on the matters in issue, it was a proper exercise of the trial judge’s discretion to instead, continue with the main proceedings and to leave the issue of potential contempt proceedings against the witness until a later point in time. Even if it is assumed that the trial judge committed an error in the way he addressed the refusal of a witness to answer a question put to him by defence counsel, any such error did not result in a substantial wrong or miscarriage of justice … the appeal is allowed and the convictions are restored.”
Côté J.: “In our view, having regard to the principles set out by this Court in R. v. Villaroman, 2016 SCC 33,  1 S.C.R. 1000, at para. 55, it was not unreasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt, especially given the presence of Mr. Youssef’s DNA on two different pieces of evidence, one of which was connected to the scene of the bank robbery, and the other to the getaway car. When the trial judge’s reasons are read as a whole, and in the context of the evidence and the arguments at trial, we are not persuaded that the trial judge ignored other potential explanations. We would therefore dismiss the appeal.”
The Chief Justice (translation): “We are all of the opinion that the appeal should be dismissed, substantially for the reasons of the majority of the Court Martial Appeal Court of Canada. However, with respect, on the record before us, we are of the opinion that there was no evidence from which a trier of fact could find that the appellant had taken reasonable steps to ascertain that the complainant was consenting. In so concluding, we are also of the view that the principles enunciated in R. v. George, 2017 SCC 38,  1 S.C.R. 1021, are of no assistance in applying s. 273.2 of the Criminal Code, R.S.C. 1985, c. C-46. It follows that the defence of honest but mistaken belief should not have been put to the panel.”
Constitutional Law/Securities: National Capital Markets Regulatory System
Reference re Pan Canadian Securities Regulation, 2018 SCC 48 (37613)
The Constitution authorizes the implementation of pan-Canadian securities regulation under the authority of a single regulator, according to the model established by the most recent publication of “Memorandum of Agreement regarding the Cooperative Capital Markets Regulatory System”; and the most recent version of the draft federal “Capital Markets Stability Act” does not exceed the authority of Parliament over the general branch of the trade and commerce power.
Contracts: Principles of Good Faith & Equity; Doctrine of Unforeseeability
Churchill Falls (Labrador) Corp. v. Hydro-Québec, 2018 SCC 46 (37238)
There is no compelling factual or legal basis for the courts to reshape the contractual relationship herein. The fact the electricity market has changed significantly does not on its own justify disregarding its terms and its nature. While it is true the introduction of the duty of good faith into the Québec Civil Code shows that the legislature intended to temper the principles of the binding force of contracts and autonomy of the will, this does not justify making inordinate use of that duty to override an agreement that adequately reflects the initial equilibrium envisaged by the parties.
Criminal Law: DUI; Disclosure
R. v. Gubbins, 2018 SCC 44 (37395) (37403)
Re the scope of the Crown’s disclosure obligations with respect to maintenance records of breathalyzer instruments, such records are subject to third party (rather than first party) disclosure. On the evidence herein, in both cases, the defence failed to show the maintenance records meet the requisite threshold for third party disclosure.
Criminal Law: DUI; Disclosure; Certiorari
R. v. Awashish, 2018 SCC 45 (37207)
Certiorari is an extraordinary remedy that is available only in narrow circumstances, and allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, gravely risks slowing the criminal justice system.
Leaves to Appeal Granted
Aboriginal Law: Interjurisdictional Issues
Attorney General of Newfoundland and Labrador v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2017 QCCA 1791 (37912)
How are interjurisdictional issues (Québec v. Newfoundland & Labrador) to be dealt with.
Civil Procedure in Québec: Actions Against Police
Kosoian v. Société de Transport de Montréal, 2017 QCCA 1919 (38012)
Can police be civilly sued here.
Criminal Law: Conditional Sentences
R. v. R.P., 2018 QCCA 21 (37994)
When are conditional sentences appropriate.
DeJong PC v. DBDC Spadina Ltd, et al., 2018 ONCA 60 (38051)
Was there knowing participation, and knowing receipt, in the alleged fraudulent scheme herein.
Torts: Wrongful Imprisonment
Fleming v. Ontario, 2018 ONCA 225 (38087)
Was wrongful imprisonment, and other torts, committed in these circumstances.
Wills & Estates in Québec: Discretionary Trusts
Yared Estate v. Karam, 2018 QCCA 320 (38089)
Is the will herein valid, and is the family residence here part of the family patrimony.