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 (October 12 – November 15, 2019 inclusive).


Criminal Law: Delay; Youth
R. v. K.J.M., 2019 SCC 55 (38292)

Two main issues: do the presumptive Jordan ceilings apply to youth justice court proceedings; was the delay here unreasonable? The first issue, affirmative: while the enhanced need for timeliness in youth matters is well established in the jurisprudence and codified in s. 3(1) (b)(iv) and (v) of the YCJA, this factor is accounted for within the existing Jordan framework. Re the second issue, a stay is not warranted.

Criminal Law: Forfeiture; Legal Fees
R. v. Rafilovich, 2019 SCC 51 (37791)

Generally speaking, sentencing judges should not impose a fine instead of forfeiture re funds judicially returned to pay reasonable legal fees for an accused’s criminal defence. 

Criminal Law: Manslaughter/Criminal Negligence Causing Death
R. v. Javanmardi, 2019 SCC 54 (38188)

The actus reus of criminal negligence causing death requires the accused undertake an act, or omitted to do anything it was his or her legal duty to do, and the act or omission causes death.

The fault element being the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of other persons”, though neither “wanton” nor “reckless” is defined in the Criminal Code. The actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death; there is no independent requirement of objective dangerousness.

Family Law: Jurisdiction of Québec Courts
R.S. v. P.R., 2019 SCC 49 (37861)

Article 3137 C.C.Q. establishes the lis pendens exception in Québec private international law, under which a court may stay its ruling on an action brought in Québec if the dispute is already the subject of proceedings before the courts of a foreign jurisdiction. This is an exception in that the Québec court is departing from the general principle re cases filed by staying proceedings validly brought before it. Under this article, three conditions must be met before a Québec court may stay its ruling. If any one is not met, the application for a stay cannot be granted, because there is then not a situation of lis pendens under art. 3137 C.C.Q. If, however, the conditions of art. 3137 C.C.Q. are all met, then there is an international lis pendens situation. However, the court must continue with the analysis in order to decide whether the Québec proceedings should be stayed: it is only where the court has found it is appropriate to exercise the discretion conferred on it by the legislature in art. 3137 C.C.Q. that the application for a stay on the basis of international lis pendens can be granted.

Pensions in Québec: Presumption of Life/Death
Threlfall v. Carleton University, 2019 SCC 50 (37893)

The current C.C.Q. regime was introduced nearly 30 years ago represented a fundamental shift with respect to the legal effects of an individual’s absence: an absentee is presumed to be alive for seven years following his or her disappearance, if this presumption of life is not rebutted by proof of death within the seven-year period, a declaratory judgment of death may be pronounced; and such a judgment establishes the absentee’s date of death as “the date upon expiry of seven years from the disappearance”. The structure of the absence regime clearly demonstrates that during the first seven years of absence, accuracy is intended to prevail over certainty. It is only after seven years of absence, and the pronouncement of a declaratory judgment of death, that certainty is intended to govern — with some narrow exceptions — even if this is at odds with the absentee’s true date of death.

Oral Judgments

Criminal Law: Sexual Assault
R. v. M.R.H., 2019 BCCA 39; 2019 SCC 46 (38547) 

There is a publication ban in this case, in the context of sexual interference and sexual assault charges: Karakatsanis J.: “The appeal is allowed, substantially for the reasons of Mr. Justice Savage (2019 BCCA 39, 373 C.C.C. (3d) 464). As for the three additional issues raised by the respondent for the first time in this Court, we are not satisfied that they require a new trial…

We restore the respondent’s conviction for sexual assault and the judicial stay on the count of sexual interference.”

Criminal Law: Possession for the Purposes
R. v. Kernaz, 2019 SKCA 37; 2019 SCC 48 (38642)

Abella J.: “The appeal is dismissed substantially for the reasons of the Court of Appeal.”

Leaves to Appeal Granted

Aboriginal Law: Hunting
R. v. Desautel, 2019 BCCA 151 (38734)

Aboriginal hunting rights of non-residents.

Wills & Estates: Protective Orders
Sherman Estate v. Donovan, 2019 ONCA 465 (38695)

What do Protective Orders in the wills and estates context cover.

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