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 (Jan. 28 – Feb. 23, 2017 inclusive).

Appeals

Criminal Law: Drug Impaired
R. v. Bingley, 2017 SCC 12 (36610)

The drug recognition expert can, in this case, testify about their determination under s. 254(3.1) of the Criminal Code without a voir dire to determine expertise. The determination by the expert is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug; their task is to determine whether the evaluation indicates drug impairment; the expert evidence cannot presume the ultimate issue of guilt; it is “merely one piece of the picture for the judge or jury to consider.”

Real Property/Civil Procedure: Adverse Possession; Inconsistent Use Doctrine; Evidentiary Gaps; Role of Trial Judges v. C.A.; Costs
Nelson (City) v. Mowatt, 2017 SCC 8 (36999)

The inconsistent use requirement forms no part of B.C. law governing the proof of adverse possession. It is not the role of appellate courts to second-guess weight to be assigned to evidence. Absent palpable and overriding error — that is, absent an error “plainly seen” and has affected the result — an appellate court may not upset a fact-finder’s findings of fact. The standard of palpable and overriding error applies both to the underlying facts relied on by trial judges to draw an inference, and to the inference-drawing process itself.

Oral Judgment

Criminal Law: Alibis; Similar Fact
R. v. Clifford, 2016 BCCA 336; 2017 SCC 9 (37140)

Justice Abella: “A majority of this Court would dismiss the appeal, substantially for the reasons of Willcock J.A. While we appreciate the suggestions of the Intervenors that the law be re-examined, we are not satisfied that such re-examination is warranted in this case, particularly where neither party has asked us to depart from the jurisprudence of this Court. Justice Rowe would have allowed the appeal, based on the dissenting reasons of Newbury J.A., as set out in paras. 22-26 of her reasons.”

Criminal Law: K.G.B. Statements
R. v. Brown, 2016 ABCA 192; 2017 SCC 10 (37153)

Justice Abella: “In all the circumstances of this case, we are satisfied that Mr. Sahal’s K.G.B. statement was admissible, was reasonably capable of belief, and could reasonably have affected the outcome.The appeal is therefore dismissed.”

Leaves to Appeal Granted

Municipal Law in Québec: Riot Damage
Montréal (City of) v. Lonardi et al., 2016 QCCA 1022 (37184)

Are rioters liable to a municipality for damage.

Professions: Discipline
Groia v. The Law Society of Upper Canada, 2016 ONCA 471 (37112)

What is/is not conduct sanctionable by a Law Society.

Professions/Universities: First Christian Law School in Canada
Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (37209)

Is it constitutionally permissible for there to be a Christian law school in Canada.

Professions/Universities: First Christian Law School in Canada
Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423 (37318)

Is it constitutionally permissible for there to be a Christian law school in Canada.