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, Oral Judgments and Leaves to Appeal granted from January 1 – February 5, 2021 inclusive.
The duty to exercise contractual discretion is breached only where the discretion is exercised unreasonably, which here means in a manner unconnected to the purposes underlying the discretion. For example, where the exercise of discretion is arbitrary or capricious. The duty of good faith at issue here constrains the permissible exercise of discretionary powers in contract but, in so doing, it does not displace the detailed, negotiated bargain as the primary source of justice between the parties. Importantly, the good faith duty at issue does not require the respondent to subordinate its interests to those of the appellant, nor does it require that a benefit be conferred on the appellant that was not contemplated under the contract or one which stands beyond the purposes for which the discretion was agreed. Here, the appellant decries conduct that is self-interested, to be sure, and that, it says, made it impossible to achieve the fundamental benefit for which it had bargained. But in seeking damages for this loss, the appellant does not allege that the respondent committed any actionable wrong in exercising the discretion provided for under the contract.
Criminal Law: Young Accuseds; Bail
R. v. T.J.M., 2021 SCC 6 (38944)
A superior court justice has jurisdiction to hear and decide a bail application by a young person charged with an offence listed in s. 469 of the Criminal Code. And that jurisdiction is held concurrently with judges of the designated youth justice court for the province. A word of caution: this appeal concerns only the question of bail jurisdiction before trial; once trial has started, it will typically be the case that a bail application would be brought before the trial judge; whether it must be brought before the trial judge, however (for example, where the trial has adjourned) is a question that need not be decided here.
Moldaver J.: “The only issue on this unreasonable verdict appeal is whether the inconsistencies in the complainant’s testimony are so significant that a conviction registered on the basis of his evidence is unreasonable as a matter of law. Although some of the inconsistencies are troubling, a majority of the Court is satisfied that the jury acted reasonably in believing the complainant. The complainant accepted that his testimony was inconsistent with his prior statements. These inconsistencies were the focus of vigorous cross-examination, forceful closing submissions and a comprehensive jury charge, which the parties agree was free of errors. For his part, the complainant explained that counselling had helped improve his memory since his initial police statement. In the majority’s view, it was for the jury to decide whether this explanation neutralized any reasonable doubt caused by the inconsistencies. In these circumstances, the lens of judicial experience causes us to yield to the wisdom of the jurors who had the advantage of hearing the complainant testify. We decline to second guess this determination. With respect, the majority disagrees that the Crown had to either lead further evidence on the complainant’s counselling sessions or adduce expert evidence on the role that counselling can play in refining memory. For these reasons, the majority would allow the appeal, set aside the acquittals and restore the convictions. Justices Brown and Rowe, dissenting, would dismiss the appeal, substantially for the reasons of Justice White.”
Moldaver J.: “This appeal comes to us as of right. The three appellants were convicted at trial on charges of assault causing bodily harm. Two of the appellants, Messrs. Jamis Yusuf and Jamal Yusuf, were also convicted of unlawful confinement. Following the release of the trial judge’s reasons for judgment, the appellants moved for a stay of proceedings on the basis that their right to be tried within a reasonable time under s. 11 (b) of the Canadian Charter of Rights and Freedoms was infringed. The trial judge agreed and stayed the proceedings against them. The Crown appealed from that order and in a unanimous decision, the Court of Appeal for Ontario, applying the appropriate standard of review, allowed the appeal and restored the convictions. We agree with the Court of Appeal in the result and would accordingly dismiss the appeal. In doing so, we have chosen to leave for another day various legal issues that arise from this Court’s decisions in R. v. Jordan, 2016 SCC 27,  1 S.C.R. 631, and R. v. Cody, 2017 SCC 31,  1 S.C.R. 659, including whether and in what circumstances multiple accused should be treated communally as opposed to individually when assessing defence delay under s. 11 (b); whether discrete events as defined in Jordan attributable to a particular accused should be deducted only from the accused responsible for those events or be deducted communally from the co-accused as well; and whether a s. 11 (b) application can be brought post conviction and if so, whether a remedy other than a stay of proceedings is available. In this case, we are of the view that none of these legal issues, taken alone or together, would have affected the resolution of this appeal. Our decision to leave these legal issues to another day is influenced by several matters, including the absence of interveners who could shed light on them; the fact that this is a transitional case in which 70% of the trial was completed before the release of Jordan; and the lack of meaningful efforts on the part of the three accused to move the trial process ahead in cooperation with the Crown and the trial court. As the Court of Appeal observed, correctly in our view, this trial was by any measure uncomplicated. Based on the foregoing, no proper application of Jordan would have resulted in a stay here.”
The Chief Justice: “The Crown appeals as of right on questions of law further to the majority judgment of the Quebec Court of Appeal setting aside the guilty verdict entered by Judge Joëlle Roy of the Court of Québec and ordering a new trial. A majority of this Court would dismiss the appeal for the reasons given by Chamberland J.A. Judge Roy erred in law in denying Mr. Deslauriers the right to obtain and, if need be, file documents relating to the existence of three criminal investigations and a report from the Centre jeunesse des Laurentides involving the victim. There was a likely and reasonable possibility that the information in question could assist Mr. Deslauriers in exercising his right to make full answer and defence. Moreover, Judge Roy erred in her interpretation and treatment of the evidence crucial to the accused, such as to cause a miscarriage of justice. Because of our reasons, however, it is not necessary to dispose of this question already decided by the Quebec Court of Appeal. Judge Roy also erred in her treatment of the testimony given by an expert, Mr. Poulin, concerning Mr. Deslauriers’s conduct as a police officer, which was central to his defences. Finally, although it is not necessary to deal with the recusation aspect of the judgment under appeal, and insofar as the Crown wishes to continue the proceedings leading to a second trial, it will have to proceed before another trial judge. For these reasons, the appeal is dismissed. Abella and Brown JJ. are of the view that the documents sought by the defence do not meet the threshold of “likely relevance” within the meaning of R. v. O’Connor,  4 S.C.R. 411, and R. v. McNeil, 2009 SCC 3,  1 S.C.R. 66. They are also of the view that the expert, Bruno Poulin, strayed beyond the proper scope of his expert evidence and that his testimony was neither relevant nor necessary within the meaning of R. v. Sekhon, 2014 SCC 15,  1 S.C.R. 272. For these reasons, they would have allowed the appeal, set aside the Court of Appeal’s judgment and restored the guilty verdict.”
The Chief Justice: “A majority of the Court would dismiss the appeal substantially for the reasons of Rowbotham J.A. They would simply add that when the evidence of the buy officer and the surveillance officer is considered in conjunction with the concession of defence counsel that the person arrested on July 27, 2015, was the appellant, there was sufficient admissible evidence supporting the trial judge’s conclusion that the appellant and the suspect were one and the same. Justice Brown would have allowed the appeal substantially for the reasons of Veldhuis J.A. and would have ordered a new trial.”
The Chief Justice: “The appeal is allowed for the reasons of Justice van Rensburg, with costs throughout. The judgment of the Court of Appeal is set aside and the trial judgment is restored.”
Leaves to Appeal Granted
Civil Procedure: Advance Costs
Anderson v. Alberta (Attorney General), 2020 ABCA 238 (39323)
When can advance costs be ordered.
Criminal Law: Aiding & Abetting
Cowan v. R., 2020 SKCA 77 (39301)
Clarification as to aiding & abetting.
Criminal Law: Constitutionality of Mandatory Minimums
R. v. Sharma, 2020 ONCA 478 (39346)
Constitutionality of mandatory minimums.
Criminal Law: Drive-by Shooting
Russell, et al. v. R., 2020 BCCA 108 (39274)
Clarification as to aiding & abetting.
Criminal Law: Sexual Assault
K. v. R., 2020 BCCA 136 (39287)
There is a publication ban in this case, in the context of non-consent to non-condom sex.
Family Law: Mobility
Richardson v. Richardson, 2019 ONCA 983 (39123)
Relocation of children’s primary residence.