Summaries Sunday: Supreme Advocacy

On 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 and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (July 15 – August 25, 2016 inclusive).


Agriculture: Farm Income Stabilization; Compensation Methods; Interpretation Principles
Ferme Vi-Ber inc. v. Financière agricole du Québec, 2016 SCC 34 (36205)

The (provincial) government support program here is not a contract of insurance but an “innominate contract under Québec civil law; must be interpreted having regard to the public interest and to La Financière’s social objective, but nonetheless governed exclusively by private law, not public law.

Agriculture: Farm Income Stabilization; Compensation Methods; Interpretation Principles
Lafortune v. Financière agricole du Québec, 2016 SCC 35 (36210)

Similar summary to that immediately above.

Class Actions: Jurisdiction
Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 (36087)

The fourth factor of Van Breda promotes certainty by premising the determination of when a contract is “made” in a given jurisdiction on the traditional rules of contract formation. This factor also promotes flexibility and commercial efficiency: all that is required is a connection between the claim and a contract that made in the jurisdiction; “connection” does not necessarily require the alleged tortfeasor be a party to the contract; to narrow the fourth presumptive factor would undermine the flexibility required in private international law. The real and substantial connection test has never been concerned with showing “the strongest” possible connection between the claim and the forum where jurisdiction is sought.

Criminal Law: Circumstantial Evidence
R. v. Villaroman, 2016 SCC 33 (36435)

Basics of how judges should instruct juries re circumstantial evidence:

1. ‘You may rely on direct evidence and on circumstantial evidence in reaching your verdict’.

2. ‘Usually, witnesses tell what they personally saw or heard; eg., a witness may say they saw it raining outside –direct evidence.’

3. ‘Sometimes, however, witnesses say things from which you are asked to draw certain inferences; eg., a witness may say they’d seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet; if you believed that witness, you may infer it was raining outside, though the evidence was indirect – indirect evidence is sometimes called circumstantial evidence.’

Criminal Law: Effect of Retrospective Amendments
R. v. K.R.J., 2016 SCC 31 (36200)

Amendments to s. 161(1) (c) [prohibition on contact with someone under 16] and (d) [prohibition re internet or other digital network] qualify as punishment such that retrospective operation limits the right protected by s. 11 (i). Re s. 1, while the retrospective operation of the no contact provision in s. 161(1) (c) is not a reasonable limit on the s. 11 (i) right, the retrospective operation of the internet prohibition in s. 161(1) (d) is.

Criminal Law/Military Law: Constitutionality
R. v. Cawthorne, 2016 SCC 32 (36466, 36844)

It is a constitutional principle that prosecutors not act for improper purposes, such as purely partisan motives, and whether a prosecutor’s purposes are “improper” depends on the facts. Recognition of this principle as fundamental justice doesn’t affect the abuse of process doctrine; both are integrally related. Claims of improper prosecutorial conduct, including partisan-motivated conduct, can be brought and assessed under the doctrine of abuse of process, which determines the standard for improper conduct and the appropriate remedy. An A.G. or other public official with a prosecutorial function are entitled to a presumption of exercising prosecutorial discretion independently of partisan concerns, and a Minister’s membership in Cabinet does not displace that presumption.

Leaves to Appeal Granted

Banking: Cheque Fraud
Teva Canada Limited v. Bank of Montreal, 2016 ONCA 94 (36918)

When are banks, victims of a fraudulent cheque scheme, liable for conversion, and can the banks raise defences under ss. 20(5) and 165(3) of the federal Bills of Exchange Act, and under the Ontario Limitations Act.

India v. Badesha, 2016 BCCA 88 (36981)

Are parties alleged to have planned a long-distance “honour killing” in India from Canada extraditable to India.

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