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 (January 26 to February 22, 2019 inclusive).
Civil Procedure/Private International Law: Foreign Judgments
Barer v. Knight Brothers LLC, 2019 SCC 13 (37594)
The jurisdiction of the Utah Court is recognized; presenting substantive arguments in a motion to dismiss, is submitting to the Utah Court’s jurisdiction in accordance with art. 3168(6) of the Civil Code of Québec, and this is sufficient here to establish any substantial connection that may be required by art. 3164, C.C.Q.
Criminal Law: Long-Term Supervision Orders; Collateral Attacks
R. v. Bird, 2019 SCC 7 (37596)
The accused here is not permitted to collaterally attack the residency condition of his Long Term Supervision Order. Two principles underlie the approach to collateral attacks on court orders: (1) importance of maintaining the rule of law and preserving the repute of the administration of justice; (2) ensuring that individuals have an effective means to challenge court orders, particularly when challenged on the basis they are not Charter compliant. Where an effective forum or mechanism is available for challenging an order, and a person takes issue with the order only after breaching it, they had not been denied the ability to fully defend against the charge if a collateral attack is refused, and this is because they had the opportunity to challenge the validity of the order through other means but failed to do so.
Criminal Law: Post-Offence Conduct
R. v. Calnen, 2019 SCC 6 (37707)
When the trial judge’s charge here is considered fairly, contextually, and as a whole, this jury was properly equipped to decide the case in the absence of a limiting instruction against general propensity reasoning. The role of appellate courts is to take a functional approach in reviewing jury charges, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence. The test is whether the jury was properly, not perfectly, instructed.
Criminal Law: Voyeurism; Reasonable Expectation of Privacy
R. v. Jarvis, 2019 SCC 10 (37833)
The high school students recorded by the accused teacher here were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly their upper torso — and a fortiori not to be the subject of such videos recorded for a sexual purpose by a teacher. There was here a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.
The Chief Justice: “For the reasons of Justice Pfuetzner, we would allow the appeal. More particularly, we agree with the dissenting judge that the trial judge did not misapprehend the evidence or draw inferences unavailable on the evidence, nor did he err in his credibility findings. The appeal is therefore allowed and the convictions are restored.”
Brown J.: “We would allow the appeal. At trial and during oral argument at the Court of Appeal, the Crown conceded the availability of the defence of extreme intoxication akin to automatism, to a charge of failing to provide a breath sample. In light of this, and in our respectful view, the majority at the Court of Appeal erred in raising and deciding the availability of that defence. Having regard to the Crown’s concession, we are not persuaded that the trial judge erred in law in his understanding or application of the defence of automatism. In these unusual circumstances, it would not be in the interests of justice to overturn this acquittal, and we therefore restore it. In doing so, however, we expressly refrain from deciding the availability of this defence in the absence of an adequate record on the constitutional issues, full submissions and notice to the proper parties.”
Moldaver J.:”We would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal.”
Moldaver J.:”We agree with the majority of the Court of Appeal that the circumstantial evidence presented against the appellant established a strong case to answer. In the words of the majority, which we accept, this was the “paradigm of a case to meet, far removed from ‘no case to answer’”: para. 34. That being so, it was open to the court on appeal to consider the appellant’s silence in assessing and ultimately rejecting his unreasonable verdict argument: see R. v. Noble,  1 S.C.R. 874, at para. 103. In so concluding, we note that the trial judge made it clear to the jury, on numerous occasions, that it could not consider the appellant’s failure to testify as a makeweight for the Crown’s case. In this regard, we do not endorse paras. 32 and 36 of the majority’s reasons, to the extent they may be taken as suggesting otherwise. In the result, we would dismiss the appeal.”
Leaves to Appeal Granted
Class Actions/Torts: Duty of Care
1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2018 ONCA 407 (38187)
Was there a duty of care, was it breached, and should there be liability for reputational harm.
Criminal Law: Sexual Offences Sentencing
R. v. Friesen, 2018 MBCA 69 (38300)
What should the sentence be for the sexual offences herein.
Criminal Law: Delay; Young Offenders
K.J.M., v. R., 2018 ABCA 278 (38292)
There is a publication ban in this case, and the court file contains information not available for inspection by the public, in the context of Jordan delay re a young person charged with aggravated assault and possession of a dangerous weapon.