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, Oral Judgments and Leaves to Appeal granted from May 27 – June 17, 2021 inclusive.

Appeals

Civil Procedure: Court Record Access
MediaQMI inc. v. Kamel, 2019 QCCA 814; 2021 SCC 23 (38755)

In Québec, the Code of Civil Procedure gives members of the public the right to have access to court records: art. 11 C.C.P. No prior authorization is required: anyone can examine the content of such records. The Code also contains a provision dealing with the retrieval of exhibits filed in a court record: art. 108 C.C.P. In the course of a proceeding, the parties are authorized to retrieve their exhibits if all of them consent; once the proceeding has ended, they are obliged to do so, otherwise the exhibits may be destroyed by the court clerk after one year. The question at the centre of this appeal is whether art. 11 C.C.P. allows members of the public to consult exhibits that have been retrieved by the parties in accordance with art. 108 C.C.P. The right to have access to court records set out in art. 11 C.C.P. does not extend beyond what is in these records at the time they are consulted. This means that once the parties retrieve their exhibits at the end of a proceeding, members of the public will still be able to consult the record but will no longer have access to the exhibits that have been removed.

Civil Procedure: Open Court Principle; Sealing Orders
Sherman Estate v. Donovan, 2019 ONCA 465, 2021 SCC 25 (38695)

Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in the public interest of protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified. However herein, with this interest in mind, it cannot be said that the risk to privacy is sufficiently serious to overcome the strong presumption of openness; the same is true of the risk to physical safety. There will doubtless be cases where the information that poses a serious risk to privacy, bearing as it does on individual dignity, will be central to the case. But the interest in important and legally relevant information being aired in open court may well overcome any concern for the privacy interests in that same information. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection. The conclusion that the Trustees have failed to establish a serious risk to an important public interest ends the analysis. In such circumstances, the Trustees are not entitled to any discretionary order limiting the open court principle, including the sealing orders they initially obtained. The Court of Appeal rightly concluded that there was no basis for asking for redactions because the Trustees had failed at this stage of the test for discretionary limits on court openness. The decision to set aside the sealing orders rendered by the application judge is affirmed.

Family Law: Child Support; Decrease/Arrears
Colucci v. Colucci, 2019 ONCA 561, 2021 SCC 24 (38808)

Does the framework for retroactive decreases reflect the flexible and discretionary approach applied to retroactive increases in D.B.S.? With certain modifications, it should. A payor who has established a past decrease in income is not automatically entitled to a retroactive decrease of support back to the date of the decrease. Discretionary factors parallel to those considered in D.B.S. may justify departing from the presumptive date in favour of a longer or shorter period of retroactivity. For consistency, this presumption-based approach should be mirrored where the recipient seeks a retroactive increase. Once a past material change in income is established, a presumption is triggered in favour of retroactively increasing support to a certain date, with the D.B.S. factors guiding the court’s exercise of discretion in deciding whether to depart from that date. Given the informational asymmetry herein between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication. Indeed, effective notice in this context is only “effective” when there has been disclosure of the changed financial circumstances. At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity.

Oral Judgments

Criminal Law: Sexual Offences; Criminal Harassment
R. v. Morrow, 2020 ABCA 407, 2021 SCC 21 (39456)

Moldaver J. (Karakatsanis, Rowe and Kasirer JJ. concurring): “A majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court of Appeal at paras. 16 and 17 of its judgment. As the majority observed, the record clearly supports the inference drawn by the trial judge that Mr. Morrow’s conduct represented an attempt to dissuade the complainant, by corrupt means, from giving evidence. Mr. Morrow knew he had recently been charged with criminal harassment and that he was bound not to contact the complainant. Despite this, he attended her home uninvited and engaged her in a prolonged and distressing discussion about the process for withdrawing the charges and her reasons for bringing them. The complainant testified that the exchange made her feel “[p]ressured to please” Mr. Morrow and to get him out of the house (A.R., vol. II, at p. 30). Shortly thereafter, Mr. Morrow sexually assaulted her, which served to exacerbate her concerns. On the basis of this evidence, it was open for the trial judge to find that Mr. Morrow’s intention was to apply pressure on the complainant and ultimately to manipulate her into dropping the charges against him. The fact that Mr. Morrow may have also been motivated by a desire to rekindle his relationship with the complainant did not undermine the availability of this finding. There was also evidence that contradicted Mr. Morrow’s position that he was simply responding to a request for information. The complainant made no such request to Mr. Morrow and she did not expect, nor was she interested in, the information he provided. In these circumstances, and having regard to the fact that survivors of domestic abuse are particularly vulnerable to acts of intimidation and manipulation, the trial judge’s verdict was reasonable. There is no basis for appellate intervention.” Côté J. (in dissent): “The wording of the charge required evidence that the appellant attempted to dissuade the complainant “by threats, bribes or other corrupt means from giving evidence” (A.R., vol. I, at p. 2). There is no such evidence here. The appellant’s behaviour cannot, in this case, be characterized as a “corrupt means” within the meaning of s. 139(3) of the Criminal Code, R.S.C. 1985, c. C-46. Appealing to or preying on affection are means of persuasion just like appealing to or preying on reason. Nothing in the circumstances of this case makes these means of persuasion “corrupt”. The trial judge erred in finding otherwise. His reliance on R. v. Crazyboy, 2011 ABPC 369, was inapposite for two reasons. First, no finding of “corrupt means” was made in that case, as the wording of the charge did not require any. Second, Mr. Crazyboy attempted to manipulate the complainant and incited her to adopt an illegal behaviour by fleeing from her home so that she would not be brought before the court to give evidence. Here, the appellant merely provided information as to the process for withdrawing charges. Like Slatter J.A., I am of the view that the conviction for attempting to obstruct justice is not made out on this record, and that the conviction is unreasonable. I would therefore allow the appeal and enter a verdict of acquittal.”

Leaves to Appeal Granted

Bankruptcy & Insolvency: Disclaimer of Arbitration Agreements
Peace River Hydro Partners v. Petrowest Corporation, 2020 BCCA 339 (39547)

When can arbitration agreements be disclaimed in a receivership context.

Criminal Law: Constitutionality Re Parole Ineligibility
Attorney General of Québec and Her Majesty the Queen v. Bisonette, 2020 QCCA 1585 (39544)

Constitutionality of parole ineligibility.

Family Law: Child Protection; Custody
B.J.T., et al. v. J.D, 2020 PECA 14 (39558)

Child protection and custody (publication ban).

Family Law: Custody; Relocation; Support
Kreke v. Alansari, 2020 SKCA 122 (39567)

Custody, relocation and support issues.