Summaries Sunday: Supreme Advocacy

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 (July 12 – August 8, 2019 inclusive).


Criminal/Military Law: Trial by Jury
R. v. Stillman, 2019 SCC 40 (37701)(38308)

S. 130(1) (a) of the NDA is not inconsistent with s. 11 (f) of the Charter. The words “an offence under military law” in s. 11 (f) refer to a service offence that is validly enacted pursuant to Parliament’s power over “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867, and s. 130(1) (a) is rooted in this head of power. So when a serious civil offence is tried as a service offence under s. 130(1) (a), it qualifies as “an offence under military law”, thereby engaging the military exception in s. 11 (f), whereby juries are not constitutionally required.

Criminal Law: Prior Sexual Activity
R. v. R.V., 2019 SCC 41 (38286)

A cross-examination here sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown-led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular timeframe. The accused’s request here satisfied the “specific instances” requirement of s. 276(2) because it was sufficiently detailed to permit the judge to apply the regime. Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross-examine the complainant was fundamental to his right to make full answer and defence.

Leaves to Appeal Granted

Charter: s. 12; Cruel & Unusual
Director of Criminal and Penal Prosecutions v. 9147-0732 Québec inc., 2019 QCCA 373 (38613)

What is the scope of s.12 of the Charter?

Contracts in Québec: Assignment; Interpretation
Resolute FP Canada Inc. v. Hydro-Québec, 2019 QCCA 30 (38544)

Was the contract here validly assigned; and how should it be interpreted.

Contracts: Good Faith Exercise of Discretion
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2019 BCCA 66 (38601)

Does the doctrine of good faith performance apply here.

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