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 as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (November 24 to December 29, 2017 inclusive).


Aboriginal Law: Treaty Rights
First Nation of Nacho Nyak Dun v.Yukon, 2017 SCC 58 (36779)

Yukon did not here have the authority to make the extensive changes it made to the Final Recommended Plan, and the trial judge appropriately quashed Yukon’s approval of its plan. The effect of this quashing was to return the parties to the stage in the land use plan approval process where Yukon could “approve, reject or modify” the Final Recommended Plan after consultation, as per s. of the Final Agreements.

Criminal Law: Text Messages; Reasonable Expectation of Privacy
R. v. Marakah, 2017 SCC 59 (37118)

Depending on the “totality of the circumstances”, texts sent and received can in some cases be protected under s. 8, though the conclusion a text conversation can, in some circumstances, attract a reasonable expectation of privacy “does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy”. And whether a reasonable expectation of privacy is present in any particular case must be assessed on the facts by the trial judge.

Criminal Law: Text Messages; Production Orders
R. v. Jones, 2017 SCC 60 (37194)

The appeal raised three questions, all answered in the affirmative: at his s. 8 application, was the appellant entitled to rely on the Crown’s theory that he authored texts to establish his subjective expectation of privacy in them; if so, was the appellant’s subjective expectation of privacy objectively reasonable such that he had standing to make a s. 8 claim; did the production order here provide lawful authority for seizing records in the hands of a service provider. An accused mounting an s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. Further, it is objectively reasonable for the sender of a text to expect a service provider maintain privacy over texts stored in its infrastructure. Production orders: must be carefully circumscribed to ensure authorized police techniques comply with s. 184(1); must not authorize, or potentially authorize, the production of any texts either not yet in existence or are still capable of delivery at the time the order is issued; and this should be clear from the face of the order.

Employment Law/Human Rights: Discrimination
British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (37041)

The discrimination that occurred here was “regarding employment”. The scope of s. 13(1)(b) is not limited to protecting employees solely from superiors in the workplace; its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context; and that may include (as here) discrimination by their co-workers, even when those co-workers have a different employer.

Wills & Estates: Proprietary Estoppel
Cowper-Smith v. Morgan, 2017 SCC 61 (37120)

Unfairness or injustice, sometimes referred to as “unconscionability” (but not in the sense that term is used in contract law), are not stand-alone criteria; they are what proprietary estoppel aims to avoid by keeping someone to their word. Proprietary estoppel can “prevent the inequity of unrequited detriment where a claimant has reasonably relied on an expectation” that he/she will enjoy a right or benefit over property, even when the party responsible for that expectation does not own an interest in the property at the time of the claimant’s reliance.

Torts: Negligence; Negligent Misrepresentation
Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (36875)

Deloitte is here liable for the increase in Livent’s liquidation deficit which followed the statutory audit. Application of the Anns/Cooper framework, coupled with the basis for auditor liability specifically identified by the S.C.C. in Hercules, means the trial judge’s finding of liability in relation to the negligently prepared statutory audit is upheld.

Criminal Law: Dangerous Offenders; Indeterminate Sentencing
R. v. Boutilier, 2017 SCC 64 (37168)

Four issues, all answered in the negative:

A. Does s. 753(1) preclude sentencing judges from considering future treatment prospects before designating an offender as dangerous? If so, is this section overbroad under s. 7 of the Charter?

B. Does s. 753(4.1) lead to a grossly disproportionate sentence, contrary to s. 12, by presumptively imposing indeterminate detention and preventing sentencing judges from imposing a fit sentence consistent with the principles and objectives of sentencing?

C. Is s. 753(4.1) overbroad in violation of s. 7 because it applies to offenders that could have been monitored under the long-term offender scheme?

D. Did the sentencing judge here err by sentencing the accused to an indeterminate period of detention?

Leave to Appeals Granted

Criminal Law: Child Luring
R. v. Morrison, 2017 ONCA 582 (37687)

Constitutionality of mandatory minimum sentence.

Criminal Law: Child Porn; Search and Seizure
T.R. v. R., 2017 ONCA 365 (37676)

There is a publication ban in this case, in the context of seizure of material by police.

Criminal Law: Internet Luring; Exclusion of Evidence
Mills v. R., 2017 NLCA 12 (37518)

When can evidence be excluded. What is an appropriate sentence.

Criminal Law: Production Orders
Vice Media Canada Inc. v. R., 2017 ONCA 231 (37574)

There is a publication ban in this case, a sealing order, and the Court file contains information not available for inspection by the public, in the context of police production orders.

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