Summaries Sunday: Supreme Advocacy

On the second Sunday in 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, SupremeAdvocacyLett@r, to which you may subscribe.

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with). For leaves, both the date the S.C.C. granted leave and the date of the C.A. judgment below are added in, in case you want to track and check out the C.A. judgment. (May 8 – June 12, 2013).

APPEALS

Aboriginal Law: Duty to Consult; Abuse of Process
Behn v. Moulton Contracting Ltd. (B.C.C.A., July 06, 2011) (34404) May 9, 2013
The duty to consult exists to protect the collective, not individual, rights of Aboriginal peoples. The doctrine of abuse of process is characterized by its flexibility, and abuse occurred here.

Criminal Law: Defences; Parties; Abandonment
R. v. Gauthier (Que. C.A., July 26, 2011) (34444) June 7, 2013
Any defence with an air of reality should go to the jury, and meets that test if there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. Abandonment should be put to the jury only if there is evidence capable of supporting finding a person who was initially a party to the carrying out an unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize the effects of his or her participation or to prevent the commission of the offence.

Criminal Law: Provocation
R. v. Buzizi (Que. C.A., May 15, 2012) (34889) May 10, 2013
The trial judge here was obliged to put the defence of provocation to the jury.

Criminal Law: Baby Concealment
R. v. A.D.H. (Sask. C.A., Jan. 12, 2011)(34132) May 17, 2013
The trial judge and the majority judges of the Court of Appeal were correct to require subjective fault.

Tax: Reforestation Costs
Daishowa-Marubeni International Ltd. v. Canada (Fed. C.A., Sept. 23, 2011) (34534) May 23, 2013
Forest seller doesn’t include reforestation costs in sale proceeds.

Torts: Medmal; Judges’ Reasons
Cojocaru v. B.C. Women’s Hospital and Health Centre (B.C.C.A., Apr. 14, 2011) (34304) May 24, 2013
While desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment by itself is OK. If incorporation is that such a reasonable person would conclude the judge did not put their mind to the issues and decide them independently and impartially, the judgment can be set aside.

Criminal Law: Impaired “Straddle” Evidence
R. v. Ibanescu (Que. C.A., Feb. 14, 2012) (34653) May 30, 2013
Straddle evidence is admissible to rebut the statutory presumption the blood alcohol level exceeds the legal limit. A statement of a legal principle accepted by a majority of the S.C.C. constitutes the opinion of the Court with respect to that legal principle, even if some members of the Court endorsing that legal principle dissent from the majority’s disposition of the appeal.

LEAVES TO APPEAL GRANTED

Civil Procedure in Quebec: Admissibility of Wiretaps
Can federal wiretaps in a federal Competition Act investigation of gas price fixing be admitted in a provincial class actions case.
Imperial Oil v. Simon Jacques, et al. (Que. C.A., Dec. 17, 2012) (35226) (See also 35231) June 6, 2013

Civil Procedure in Quebec: Admissibility of Wiretaps
Similar summary to that immediately above.
Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., et al. v. Simon Jacques, et al. (Que. C.A., Dec. 17, 2012) (35231) (See also 35226) June 6, 2013

Criminal Law: Arrest; Right to Counsel
Did the trial judge err by admitting and considering irrelevant and inadmissible evidence.
Mohammad Hassan Mian v. HMTQ (Alta. C.A., Oct 18, 2012) (35132) May 16, 2013