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 (May 11 – June 20, 2019 inclusive).
Brown J.: “… the respondents’ claim for knowing assistance must fail … In view of the statement of the majority at the Court of Appeal that this Court’s decision in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63,  2 S.C.R. 855, invited a “flexible” application of the criteria stated in Canadian Dredge & Dock Co. v. The Queen,  1 S.C.R. 662 for attributing individual wrongdoing to a corporation, we respectfully add this. What the Court directed in Livent, at para. 104, was that even where those criteria are satisfied, “courts retain the discretion to refrain from applying [corporate attribution] where, in the circumstances of the case, it would not be in the public interest to do so” (emphasis added). In other words, while the presence of public interest concerns may heighten the burden on the party seeking to have the actions of a directing mind attributed to a corporation, Canadian Dredge states minimal criteria that must always be met. The appeal is allowed, with costs throughout.”
Brown J.: “A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) … remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day. Justices Karakatsanis, Brown and Martin dissent, substantially for the reasons of Sharpe J.A. at the Court of Appeal. The dissenters add this. It may be that consideration should be given to whether the police should caution persons that they stop and question that such persons need not remain or answer questions, but the dissenters would leave this for another day. The appeal is allowed and the convictions are restored.”
Authorization; Conditions to Institute Class Action
L’Oratoire Saint Joseph du Mont Royal v. J.J., 2019 SCC 35 (37855)
The judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is tainted by numerous errors, of fact and of law, in relation to all the conditions set out in art. 575 of the Code of Civil Procedure and it was therefore open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions. “The connection between the Congregation and the Oratory is so close — [the] allegations and the exhibits filed in support of the application against both these entities are in fact largely identical — that, respectfully, the result proposed by the dissenting Court of Appeal judge is not really convincing”[emphasis in original].
Criminal Law: Arbitrary Detention
R. v. Le, 2019 SCC 34 (37971)
The circumstances of the police entry here into the backyard was a detention that was both immediate and arbitrary. The admission of the evidence would bring the administration of justice into disrepute. A detention arose as soon as the police officers entered the backyard and started asking questions. Evidence excluded; convictions set aside; acquittals entered.
Criminal Law: Prior Sexual Activity; After-the-Fact Conduct; Defences
R. v. Barton, 2019 SCC 33 (37769)
Trial judge’s central error was failure to comply with the mandatory requirements set out under the s. 276 regime. That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, on which the accused here relied. In particular, non-compliance with the s. 276 regime, which serves a crucial screening function where an accused relies on the complainant’s prior sexual activities in support of his defence, translated into a failure to expose and properly address misleading evidence and mistakes of law arising from the accused’s defence. This in turn resulted in reversible error warranting a new trial. However, the new trial should be restricted to the offence of unlawful act manslaughter, not murder.
Criminal Law: Trials in French
Bessette v. British Columbia (Attorney General), 2019 SCC 31 (37790)
The accused here was charged with a provincial driving offence in B.C., and before the start of his trial in Provincial Court, he asked to be tried in French. The S.C.C. said that were he being prosecuted for a criminal offence in the very same court, the Criminal Code would “unquestionably” have given him the option of being tried in English or French. Based on a principled interpretation of the relevant statutory provisions, people in this accused’s position are entitled to be tried in either official language.
Leaves to Appeal
Charter: s. 15
Fraser v. Canada (Attorney General), 2018 FCA 223 (38505)
Do the pensions here contravene s. 15.
Class Actions: Arbitration Clauses
Uber Technologies Inc. v. Heller, 2019 ONCA 1 (38534)
Is the arbitration clause here enforceable.
Class Actions: Video Lottery; Disgorgement of Profits
Atlantic Lottery Corporation Inc.-Société des loteries de l’Atlantique v. Babstock, 2018 NLCA 71 (38521)
Should this class action proceed.
Criminal Law: Bail
Zora v. R., 2019 BCCA 9 (38540)
What is the mens rea of breach-of-bail.
Family Law: Retroactive Lump Sum Child Support
Michel v. Graydon, 2018 BCCA 449 (38498)
When can retroactive lump sum child support be ordered.