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 (April 20 to May 10, 2019 inclusive).
Criminal Law: Delay; Mootness
The Chief Justice: “The test to be applied in this case is a two-part test as stated in Borowski v. Canada (Attorney General),  1 S.C.R. 342, and R. v. Smith, 2004 SCC 14,  1 S.C.R. 385 … In this case, the majority of the Court of Appeal erred at the first stage of the test because the case is clearly not moot. The mere fact that an individual has been deported, even if he has been deported to a country with which Canada does not have an extradition treaty, does not render a case moot. The underlying basis for the criminal proceedings has not disappeared and there remains a live controversy even if the accused’s return to Canada is unlikely …We would all … allow the appeal and remit the matter to the Québec Court of Appeal for decision on the merits.”
“Karakatsanis J.: “We agree with the conclusion of the Court of Appeal that the trial judge’s instructions on party liability for first degree murder were in error. As a result, the conviction for first degree murder cannot stand. We do not, however, agree with the Court of Appeal that the trial judge was required to charge the jury on manslaughter. … the appeal is allowed in part. The conspiracy conviction is restored and a second degree murder conviction is entered … The matter is remitted to the trial court for sentencing.”
Publication ban, sealing order and certain information not available to the public.
Abella J.:”Applying R. v. Bradshaw, 2017 SCC 35,  1 S.C.R. 865, a majority of this panel would dismiss the appeal largely for the reasons of Dickson J.A., and Justices Karakatsanis and Brown would allow substantially for the reasons of Bennett J.A. The appeal is therefore dismissed.”
Criminal Law: Manslaughter
The Court: “… The trial judge failed to consider the crucial question of what the appellant subjectively knew and intended at the time of the stabbing (in accordance with R. v. Cooper,  1 S.C.R. 146, at p. 159). By accepting the trial judge’s statement of intent as sufficient to support the conviction for murder (para. 34), the majority further erred. Both the appellant and the respondent advised the Court that they were content with our substituting a verdict of manslaughter instead of ordering a new trial. Accordingly, pursuant to s. 686(1) (b)(i) of the Criminal Code, the appeal is dismissed and a verdict of manslaughter is substituted, and the matter is remitted to the trial judge for sentencing.”
Criminal Law: Sexual Assault
Abella J.:”We are all of the view that the failure to attend a trial is not presumptively after-the-fact conduct. Its admissibility must be assessed on a case-by-case basis. A majority, however, is of the view that the appeal should be allowed substantially for the reasons of Justice Huscroft. Justice Karakatsanis and I would dismiss the appeal for the reasons of Justice Nordheimer. The appeal is therefore allowed and the convictions are restored.”
Publication ban. Six-paragraph 5:0 oral judgment by Martin J., upholding the C.A. decision to enter a guilty verdict for sexual assault; remitted to trial court for sentencing. Canadian superior courts have jurisdiction.
Labour/Employment Law: Employee v. Independent Contractor
Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2019 SCC 28 (37813)
When Modern Cleaning’s tripartite business model is properly brought into the analysis, it becomes clear that it was Modern who assumed the business risk and ability to make a profit. Mr. Bourque therefore was an artisan, making him an employee under the Act. Given that Mr. Bourque and Ms. Fortin are employees within the meaning in the Act, Modern is correspondingly a “professional employer”.
Refugees/Charter: Delay; Habeas Corpus
Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 (37770)
The Immigration and Refugee Protection Act fails to provide relief as broad and advantageous as habeas corpus, re legality of length and uncertain duration of detention. Canadian superior courts have jurisdiction.
Leaves to Appeal
Class Actions in Québec: Certification; Punitives
Volkswagen Group Canada Inc. v. Association québécoise de lutte contre la pollution atmosphérique, 2018 QCCA 1034 (38297)
Should the application for authorization to institute a class action, and for punitive damages, be granted.
Mortgages in Québec: Remedies
Toronto-Dominion Bank v. Young, 2018 QCCA 810 (38242)
When can a hypothecary claim in Québec be extinguished by prescription.
Defamation: Justification; Qualified Privilege
Bent v. Platnick, 2018 ONCA 687 (38374)
Do the defamation defences of justification & qualified privilege apply here.
Municipal Law: Subdivision Development
1704604 Ontario Limited v. Pointes Protection Association, 2018 ONCA 685 (38376)
Can this subdivision development proceed.