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 (January 9 – March 12, 2020 inclusive).


Constitutional Law/Aboriginal Law: Jurisdiction of Courts
Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4  (37912)

There is no doubt that Aboriginal title is fundamentally concerned with land; it is tempting to conclude that Aboriginal title is a purely real right, as its name suggests, but to do so would ignore the fact that Aboriginal title is also firmly grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown. Sovereignty assured the Crown underlying title to all land in the provinces, but the content of that title has always been burdened by the pre-existing rights of Aboriginal peoples which preceded those of the provinces. Where a claim of Aboriginal rights or title straddles multiple provinces, requiring the claimant to litigate the same issues in separate courts multiple times erects gratuitous barriers to potentially valid claims [emphasis in original]. We do not accept that the later establishment of provincial boundaries should be permitted to deprive or impede the right of Aboriginal peoples to effective remedies for alleged violations of these pre-existing rights. In the specific context of s. 35 claims that straddle multiple provinces, access to justice requires that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights, including their traditional rights to land. Because the parties’ focus was whether or not Quebec courts had jurisdiction over all aspects of this matter, the motions judge and the Court of Appeal focused their analysis on answering that question. We have concluded, as they did, that Quebec authorities do have jurisdiction over the entire claim.

International Law/Class Actions: Act of State Doctrine; Customary International Law
Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (37919)

The act of state doctrine in Canada has been completely absorbed by this jurisprudence. To now import the English act of state doctrine and jurisprudence into Canadian law would be to overlook the development that its underlying principles have received through considered analysis by Canadian courts. The doctrine is not part of Canadian common law, and neither it nor its underlying principles as developed in Canadian jurisprudence are a bar to the Eritrean workers’ claims here. Ultimately, for the purposes of this appeal, it is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. The only remaining question is whether there are any Canadian laws which conflict with their adoption as part of our common law; the S.C.C. (by majority) could not find any.

Oral Judgments

Civil Procedure/CCAA in Québec: Litigation Funding Priorities
9354-9186 Québec inc. v. Callidus Capital Corp., 2019 QCCA 171; 2020 CanLII 5612 (38594)

The Chief Justice: “We are all of the view to allow the appeals and reinstate the decision of the Superior Court rendered by Justice Jean-François Michaud on March 16, 2018, with costs in this Court and in the Court of Appeal.”

Constitutional Law: Division of Power; Pipelines
Reference re Environmental Management Act, 2019 BCCA 181; 2020 SCC 1 (38682)

The Chief Justice: “We are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia.”

Criminal Law: Admissibility
R. v. S.H., 2019 ONCA 669; 2020 SCC 3 (38827)

Moldaver J. (Abella and Côté JJ. concurring): “A majority of the Court is of the view that the evidence adduced by the Crown after the re-opening was essentially confirmatory of the evidence that had already been adduced by the Crown showing that the appellant had constructive possession of the drugs in question. We agree with the majority of the Court of Appeal that the evidence led prior to the re-opening was overwhelming. In these circumstances, we are satisfied that the Court of Appeal did not err in applying the curative proviso to sustain the convictions. Accordingly, we would dismiss the appeal.” Brown J. (Martin J. concurring): “We would allow the appeal and order a new trial. In our view, the trial judge’s error in allowing the Crown to split its case led to an unfair trial, which miscarriage of justice cannot be cured: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 27.”

Criminal Law: “Battered Woman Syndrome”
R. v. Doonanco, 2019 ABCA 118; 2020 SCC 2 (38577)

Moldaver J.: “We are all of the view that the appeal must be allowed and a new trial ordered on all counts. The Crown’s failure to disclose Dr. Glancy’s report before Dr. Walker completed her testimony, when considered together with the Crown’s failure to cross-examine Dr. Walker on the contents of that report, interfered with Ms. Doonanco’s ability to know the case she had to meet and make full answer and defence. To that extent, we agree with the reasons of Justice Bielby, dissenting in the Court of Appeal. With respect, however, unlike Justice Bielby, we are not persuaded that the trial judge’s remedial ruling was capable of undoing the prejudice caused to Ms. Doonanco by the manner in which the Crown proceeded. In the circumstances, precluding Dr. Glancy from testifying was, in our view, the only way of preserving Ms. Doonanco’s right to a fair trial. The net effect of Dr. Glancy’s evidence was to call into question Dr. Walker’s competence and the reliability of her expert testimony by showing that she failed to consider, much less explain, a number of factors that Dr. Glancy found to be atypical of the battered woman’s syndrome — factors which undermined Dr. Walker’s conclusion that Ms. Doonanco was suffering from this syndrome when she killed her domestic partner. Because Dr. Glancy’s report was not disclosed to the defence before Dr. Walker completed her testimony, and because the factors that Dr. Glancy relied upon to characterize Ms. Doonanco’s case as atypical were never put to Dr. Walker by the Crown in cross-examination, the defence was not able to respond to Dr. Glancy’s critiques. This rendered Ms. Doonanco’s trial unfair, resulting in a miscarriage of justice (see Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (a)(iii)). Accordingly, the appeal is allowed, the convictions are set aside, and a new trial is ordered on all counts.”

Leaves to Appeal Granted

Criminal Law: Bail
Reilly v. R., 2019 ABCA 212 (38785)

Does bail review have to be within 24 hours.

Criminal Law: Jury Selection
R. v. Esseghaier, et al, 2019 ONCA 672 (38861)

What is the proper process re rotating/static triers.

Criminal Law: Prison “Administrative Segregation”
Canada (Attorney General) v. Corporation of the Canadian Civil Liberties Association, 2019 ONCA 342 (38574)

Is “administrative segregation” in prisons constitutional.

Criminal Law: Prison “Administrative Segregation”

Canada (Attorney General) v. British Columbia Civil Liberties Association, 2019 BCCA 228 (38814)

Is “administrative segregation” in prisons constitutional.

Criminal Law: Sexual Assault
R. v. G.F., 2019 ONCA 493 (38801)

Did sexual assault occur.

Criminal Law: Sexual Offences
R. v. R.V., 2019 ONCA 664 (38854)

What are appropriate jury instructions for the alleged sexual offences.

Criminal Law: Sexual Assault; Capacity to Consent
C.P. v. R., 2019 ONCA 85 (38546)

Publication ban; criminal law, sexual assault, capacity to consent.

Family Law: Recalculation of Arrears
Colucci v. Colucci, 2019 ONCA 561 (38808)

Should support arrears be recalculated.

Labour Law: Jurisdiction Re Alleged Discrimination
Northern Regional Health Authority v. Linda Horrocks – and – Manitoba Human Rights Commission, 2017 MBCA 98 (37878)

Does the labour adjudicator have jurisdiction.

Media in Québec: Access to Court Documents
MédiaQMI inc. v. M.K., 2019 QCCA 814 (38755)

Does the media have access to court documents here.

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