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 as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (February 23 –March 29, 2019 inclusive).

Oral Judgment

Criminal Law: Sexual Assault
R. v. Snelgrove, 2019 SCC 16; 2018 NLCA 59 (38372)
Publication ban.

Moldaver J.: “… Section 273.1(2) (c) has as its aim “[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity” (R. v. Hogg (2000), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17). Inducing consent by abusing the relationships set out in s. 273.1(2) (c) does not imply the same kind of coercion contemplated by s. 265(3) (d) of the Criminal Code, which speaks to consent obtained where the complainant submits or does not resist by reason of the “exercise of authority”. Rather, as Justice Doherty observed in R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1: “An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity” (para. 12). On the facts of this case, we are of the view that it would have been open to the jury to conclude that by virtue of abusing his position of trust and authority, the accused took advantage of the complainant, who was highly intoxicated and vulnerable, by using the personal feelings and confidence engendered by their relationship to secure her apparent consent to sexual activity. An instruction under s. 273.1(2)(c) was therefore warranted.”


Criminal Law: Bail
R. v. Myers, 2019 SCC 18 (37869)

The correct approach under s. 525: the jailer must apply for the hearing immediately upon the expiration of 90 days following the day the accused was initially taken before a justice under s. 503; where there is an intervening detention order under s. 520, 521 or 524 following the initial appearance and before the end of the 90-day period, the 90-day period begins again; accuseds who have not had a full bail hearing are nonetheless entitled to one under s. 525; on receipt of the application from the jailer, the judge must fix a date and give notice for the hearing, which must be held at the earliest opportunity. The judge may refer to the transcript, exhibits and reasons from any initial bail hearing and from any subsequent review hearings. Both parties are entitled to make submissions on the basis of any additional “credible or trustworthy” information relevant or material to the judge’s analysis, and pre-existing material is subject to the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-35.

Criminal Law: Child Luring
R. v. Morrison, 2019 SCC 15 (37687)

The presumption re age under ss. (3) of s. 172.1 infringes s. 11(d) and not saved under s. 1.; ss. (4) does not violate s. 7. One is not to read the reasonable steps requirement under ss. (4), in the absence of the presumption under ss. (3), as providing an independent pathway to conviction; instead, it simply bars accuseds from raising, as a defence, they believed the other person was of legal age when they did not take reasonable steps to ascertain that . Consequently, in order to convict, the Crown has to prove beyond a reasonable doubt an accused believed the person he was communicating with was under the age of 16.

Professions in Québec: Liability
Salomon v. Matte-Thompson, 2019 SCC 14 (37537)

In the Court of Appeal’s opinion, the trial judge viewed a financial advisor’s acts and their consequences through a “distorting lens” which had led her to erroneously assess the evidence in isolated silos, without the insight provided by a global analysis; and the trial judge had taken an unduly restrictive approach in analyzing the conflict of interest here. The S.C.C. agreed.

Leaves to Appeal Granted

Judges: Remuneration; Cabinet Documents
British Columbia (Attorney General ) v. Provincial Court Judges’ Association of British Columbia, 2018 BCSC 1390 (38381)

Can the A.G.’s submission to cabinet be disclosed.

Judges: Remuneration; Cabinet Documents
Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2018 NSCA 83 (38459)

Can a confidential submission by the A.G. be disclosed.

Pensions in Québec: Police
Ville de Montréal v. Fraternité des policiers et policières de la Ville de Montréal, 2018 QCCA 858 (38275)

Does Québec legislation herein apply to police pensions.

Tax: Hedging
MacDonald v. Canada, 2018 FCA 128 (38320)

Is what happened here a tax hedge.

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