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 (September 27 – October 11, 2019 inclusive).


Criminal Law: Arrest
Fleming v. Ontario2019 SCC 45 (38087)

Where the exercise of a police power restricts lawful activities of individuals, courts must apply the test for common law police powers with particular stringency to ensure that any powers that might result in intrusions on liberty are in fact necessary; less intrusive powers are already available to the police to prevent breaches of the peace from occurring. An act can be considered a breach of the peace only if it involves some level of violence and a risk of harm; it is only in the face of such a serious danger that the state’s ability to lawfully interfere with individual liberty comes into play; behaviour that is merely disruptive, annoying or unruly is not a breach of the peace.

Criminal Law: Sentencing; Mootness
R. v. Poulin, 2019 SCC 47(37994)

Section 11(i) of the Charter entitles an offender to the lesser of: the punishment under the laws in force when the offender committed the offence; the punishment under the laws in force when sentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk taken by offending; that punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. The latter is the punishment society considers just at the precise moment the court is called upon to pass a sentence; it provides the contours for a sentence that reflects society’s most up-to-date view of the gravity of the offence and the degree of responsibility of the offender. As these two punishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to receive the lesser of the punishments at these two points in time.

Journalists: Disclosure
Denis v. Côté, 2019 SCC 44 (38114)

There is a new statutory scheme for the protection of journalistic sources set out in s. 39.1 of the Canada Evidence Act, which scheme comprises both existing common law rules and new features. Although the new statutory scheme under s. 39.1 is based on the former common law scheme, it differs from that scheme in significant ways, including a shifting of the burden of proof (s. 39.1(9)), adoption of new threshold requirements (the statutory definitions of “journalist” and “journalistic source” (s. 39.1(1)), and the criterion of reasonable necessity (s. 39.1(7) (a)). The list of criteria relevant to the balancing exercise under s. 39.1(7)(b) is not exhaustive, as is expressly indicated by the words “among other things”, so courts are not barred from taking other factors into account, such as certain considerations formerly applied re the fourth criterion of the Wigmore test.


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