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 (March 12 – April 16, 2020 inclusive).


Criminal Law: Delay; Verdict Deliberation Times
R. v. K.G.K., 2020 SCC 7(38532)

Section 11 (b) extends beyond the end of the evidence and argument at trial, up to and including when the sentence is imposed, so verdict deliberation time, which necessarily precedes the imposition of sentence, is also subject also to s. 11 (b). But the Jordan ceilings, beyond which delay is presumed to be unreasonable under s. 11 (b), apply to the end of the evidence and argument at trial, and no further, and do not include verdict deliberation time.

Criminal Law: Motor Vehicle Offences
R. v. Chung2020 SCC 8(38739)

The Crown can only appeal an acquittal on a “question of law alone”, and an appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof, so the Crown cannot appeal merely because an acquittal is unreasonable. When interpreting a trial judge’s reasons, appellate courts are not to parse the reasons line by line for errors; but instead, the reasons are to be (quoting) “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’”; try to understand the reasoning of the trial judge, but even if the trial judge articulates the right test, appellate courts can find an error of law if the judge’s reasoning and application demonstrate a failure to properly apprehend the law. In this case there was a failure here to properly consider the conduct of the reasonable person in all of the circumstances in determining whether there was a marked departure.

Criminal Law: Sexual Offences Against Children
R. v. Friesen2020 SCC 9(38300)

The accused here pled guilty to sexual interference with a young child and attempted extortion of the child’s mother. The sentencing judge gave a six-year global sentence for both. The Court of Appeal reduced to four and one-half years. The S.C.C. restored the original six-year sentence.

Tax: Derivative Contracts
MacDonald v. Canada2020 SCC 6 (38320)

The characterization of a derivative contract as a hedge turns on its purpose: the primary source for ascertaining a derivative contract’s purpose is the extent of the linkage between the derivative contract and an underlying asset, liability, or transaction; the linkage analysis begins with the identification of an underlying asset, liability or transaction which exposes the taxpayer to a particular financial risk, and then requires consideration of the extent to which the derivative contract mitigates or neutralizes the identified risk; the more effective the derivative contract is at mitigating or neutralizing the identified risk and the more closely connected the derivative contract is to the item purportedly hedged, the stronger the inference that the purpose of the derivative contract was to hedge. But perfect linkage is not required to conclude the purpose of a derivative contract is to hedge. Here, the substantial linkage between the forward contract and the Appellant’s bank shares fully supports the conclusion that the forward contract was a hedge.

Leaves to Appeal Granted

Aboriginal Law: Flooding; Fiduciary Duties
Southwind v. Canada, 2019 FCA 171 (38795)

What are the fiduciary duties in this flooding case.

Bankruptcy and Insolvency: Priorities
R. v. Canada North Group Inc., et al., 2019 ABCA 314 (38871)

Does the CCCA permit ranking court-ordered priority charges ahead of Income Tax Act deemed trusts.

Contracts in Québec: Limitation of Liability Clauses
6362222 Canada Inc. v. Prelco Inc., 2019 QCCA 1457 (38904)

Is the limitation of liability clause in this contract enforceable.

Criminal Law: Bail
T.J.M. v. R., 2019 ABCA (38944)

Publication ban; court file contains information not available for inspection by the public; in the context of bail re a minor.

Insurance: Internet Fraud
Co-Operators General Insurance Company v. La Coop fédérée, et al., 2019 QCCA 1678 (38938)

Is the internet fraud here covered by these insurance policies.

Municipal Law: Elections
Toronto (City) v. Ontario (Attorney General)2018 ONCA 761 (38921)

Is a ward-reduced municipal election constitutional.

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