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 August 20 to October 20, 2021 inclusive.


Courts/Media: Publication Bans
Canadian Broadcasting Corp. v. Manitoba, 2019 MBCA 1222021 SCC 33 (38992)

The Court of Appeal here had ordered a continuing publication ban in its judgment on the merits without a hearing to determine whether the open court principle is limited in the circumstances; they should instead have considered whether it was appropriate to set aside its publication ban on motion by the CBC. The matter is remanded to the Court of Appeal to decide the CBC’s motion; that court is best placed to decide the discretionary and fact‑specific issues raised. The Court of Appeal’s interpretation of functus officio was unnecessary to protect the values of finality and orderly appellate review, and instead had an adverse impact on the opportunity of the media to make representation; the better view is that the Court of Appeal retained jurisdiction to oversee its record even after the certificate of decision in the underlying proceeding on the merits was entered.

Constitutional Law/Elections: Municipal Law; Unwritten Constitutional Principles
Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 2021 SCC 34 (38921)

The issue here is whether and how the Constitution of Canada restrains a provincial legislature from changing the conditions by and under which campaigns for elected municipal councils are conducted. The province acted constitutionally here. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2 (b). Nor did the Act otherwise violate the Constitution.

Criminal Law: Self-defence
R. v. Khill, 2020 ONCA 151, 2021 SCC 37 (39112)

In March 2013, Parliament’s redesigned Criminal Code provisions on self-defence came into force. These changes not only expanded the offences and situations to which self-defence could apply, but also afforded an unprecedented degree of flexibility to the trier of fact. This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused’s response by reference to a non-exhaustive list of factors, one of which is “the person’s role in the incident”. Herein, this jury was not instructed to consider the effect of Mr. Khill’s role in this incident on the reasonableness of his response; this was an error of law that had a material bearing on the jury’s verdict. The ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. Fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it; they need to consider whether the accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

Contracts: Non-liability Clauses
6362222 Canada inc. v. Prelco inc., 2019 QCCA 1457, 2021 SCC 39 (38904)

Createch breached its fundamental obligation under the contract, namely to inquire into Prelco’s specific operating needs and requirements and to propose an approach to implementing an integrated management system that would be capable of satisfying them. Although the Court of Appeal was right to refer to public order and absence of a cause in support of its analysis of the validity of the clause at issue, the appeal should be allowed. Neither of the legal bases for the doctrine suffices to negate the non-liability clause to which the parties freely consented, as neither public order nor the non existence of the obligation can be successfully argued here. The clause should be found to be valid despite the breach of a fundamental obligation alleged against Createch. In summary, given that neither of the bases for the doctrine of breach of a fundamental obligation applies and that none of the respondent’s arguments are accepted, the trial judge and the Court of Appeal erred in law in finding that the limitation of liability clause was inoperative; that clause is not ambiguous, and the trial judge could not annul it; the will of the parties had to be respected.

Leaves to Appeal Granted

Criminal Law: Voyeurism
M. v. R., 2020 CACM 8 (39543)

There is a publication ban in this case, as well as a sealing order, in the context of alleged voyeurism by a military force’s member against another member. Extraterritoriality of the Charter.

Transportation Law: Disclosure re Accidents
Transportation Safety Board of Canada v. Carroll-Byrne, et al., 2021 NSCA 34 (39661)

Disclosure of materials following an air crash.

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