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 (November 16 to December 21, 2018 inclusive).
Moldaver J.: “A majority of the Court would dismiss the appeal, substantially for the reasons of Justice Nordheimer. Justices Abella and Martin, in dissent, would allow the appeal, substantially for the reasons of Justice Pardu.”
Rowe J: ” We are all of the view that the appeal should be dismissed. We would adopt what Justice Sharpe set out in para. 32 of the Court of Appeal decision. The Crown argued that even if the impugned evidence amounted to opinion evidence, it did not go to the only live issue at trial. The Crown also noted that Maraj’s impugned statements comprised a small portion of the evidence advanced during a multi-day trial, and were admitted without objection by defence counsel. In my view, these lines of argument amounted in substance to a submission that even if there was an error in admitting the evidence or in failing to conduct a voir dire, no substantial wrong or miscarriage of justice had occurred and the appeal should be dismissed on that account. Given that there was no miscarriage of justice, the curative proviso was properly relied on in this case.”
Brown J.: “We agree substantially with the majority at the Court of Appeal, and would dismiss the appeal. The trial judge’s analysis of the evidence reveals his path of reasoning that led to conviction, and permits effective appellate review. Moreover, the trial judge did not err in his credibility analysis. He did not shift the burden of proof or hold the appellant’s evidence to a higher standard of scrutiny than that applied to the complainant’s evidence. As the majority at the Court of Appeal observed, the trial judge instructed himself on the principles of R. v. W. (D.),  1 S.C.R. 742, and, based on internal contradictions in the appellant’s testimony and on the strength of the complainant’s testimony, he was entitled to conclude that the Crown had met its burden of proving the appellant’s guilt beyond a reasonable doubt. Nor did the trial judge err by applying generalizations and stereotypes in rejecting the appellant’s evidence. We agree with the majority at the Court of Appeal that the trial judge’s statements in this regard were directed to the appellant’s own evidence and to the believability of the appellant’s claims about how he responded to the specific circumstances of this case, and not to some stereotypical understanding of how men in those circumstances would conduct themselves.” (Emphasis in original).
Gascon J: “We would allow the appeal for the reasons of the dissenting judge in the Federal Court of Appeal, and reinstate the order of Justice McVeigh of the Federal Court that answered in the affirmative the question of law submitted by the parties …”
Charter: Language Rights
Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50 (37642)
A purposive interpretation of the language rights herein leads to the conclusion judges are required to participate actively in protecting them. While true that lawyers have a role to play in accordance with their ethical duties, a lawyer’s failure to intervene does not release a judge from his or her duties. When language rights are violated, the appropriate remedy will generally be to order a new hearing. When a new hearing is not justified, the court can award costs if the violation resulted from, among other things, the conduct of one of the parties, or declare that the rights of a party or a witness were violated.
Commercial Law: Shareholder Rights
Brunette v. Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55 (37566)
The decisions of the Superior Court and the Court of Appeal below dismissing the claim for lack of interest, are firmly grounded in Québec civil law principles. In certain cases, the civil law produces a conclusion similar to that which would arise under the common law. This is one such case. The principles of procedural and corporate law in Québec bar shareholders from exercising rights of action that belong to the corporations in which they hold shares. Shareholders may institute proceedings, however, if they can demonstrate: breach of a distinct obligation; and, a direct injury distinct from that suffered by the corporation in question. If shareholders want to ensure a corporation exercises its rights, they can do so by a derivative action in the corporation’s name. These rules change on bankruptcy, as all rights of action belonging to the corporation pass to the trustee: if the trustee declines to pursue an action on behalf of the corporation, the federal Bankruptcy and Insolvency Act provides that a creditor may obtain a court authorization to institute proceedings based on a right of action belonging to the corporation per s. 38(1).
Criminal Law: Impaired
R. v. Cyr-Langlois, 2018 SCC 54 (37760)
Oral Judgment, Oct. 15, 2018. Written reasons, Dec. 6, 2018.
To rebut the presumptions in s. 258(1) (c) an accused must adduce evidence tending to show malfunctioning or improper operation of the approved instrument casts doubt on the reliability of the results. The accused’s burden is discharged if: evidence is adduced relating directly to malfunctioning or improper operation; and, this defect tends to cast doubt on the reliability of the results.
Criminal Law: Mandatory Victim Surcharges
R. v. Boudreault, 2018 SCC 58 (37427)(37774)(37782)(37783)
(Four appeals, one set of reasons)
The mandatory victim surcharge amounts to, and operates as, a constitutionally impermissible form of cruel and unusual punishment. Consequently, s. 737 of the Code violates s. 12 of the Charter and cannot be saved under s. 1. Given this, it is unnecessary to address s. 7.
Criminal Law: Search and Seizure
R. v. Reeves, 2018 SCC 56 (37676)
The police infringed Mr. Reeves’ Charter rights when they took the computer from his home, and the evidence excluded. Although the computer was shared, Mr. Reeves maintained a reasonable expectation of privacy in it. The consent of his spouse did not nullify reasonable expectation of privacy, nor operate to waive his Charter rights in the computer.
Criminal Law: Search Warrants & Production Orders
R. v. Vice Media Canada Inc., 2018 SCC 53 (37574)
The Lessard framework is a suitable model for search warrants and production orders re the media, with some refinements:
- rather than treating prior partial publication as a factor that always militates in favour of granting an order, the effect of prior partial publication is assessed on a case-by-case basis.
- with respect to the standard of review to be applied when reviewing an order made ex parte, a modified Garofoli standard is adopted if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review; otherwise, the traditional Garofoli standard will apply, meaning the order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order.
- reorganize the Lessard factors to make them easier to apply in practice.
Family Law/Trusts: Unjust Enrichment; Constructive Trusts
Moore v. Sweet, 2018 SCC 52 (37546)
On the facts herein, Risa was enriched, Michelle correspondingly deprived, and both the enrichment and the deprivation occurred in the absence of a juristic reason, so a remedial constructive trust is imposed for Michelle’s benefit. While the constructive trust is a powerful remedial tool, it is not available in all circumstances where a plaintiff establishes his or her claim in unjust enrichment. Rather, courts will impress the disputed property with a constructive trust only where: a personal remedy would be inadequate; the plaintiff’s contribution that founds the action is linked or causally connected to the property over which a constructive trust is claimed. And even where the court finds that a constructive trust would be an appropriate remedy, it will be imposed only to the extent of the plaintiff’s proportionate contribution (direct or indirect) to the acquisition, preservation, maintenance or improvement of the property.
Leaves to Appeal Granted
Criminal Law: Manslaughter; Criminal Negligence
Javanmardi v. R., 2018 QCCA 856 (38188)
Were charges of criminal negligence causing death and manslaughter appropriate here.
Criminal Law: Sexual Interference
R. v. R.V., 2018 ONCA 547 (38286)
There is a publication ban in this case, in the context of a s. 276 application.