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, Oral Judgments and Leaves to Appeal granted from Oct. 18 – Nov. 16, 2022 inclusive.


Bankruptcy and Insolvency: Arbitration Agreements
Peace River Hydro Partners v. Petrowest Corp., 2020 BCCA 339; 2022 SCC 41 (39547)

The civil claim brought by the Receiver on behalf of Petrowest and the Petrowest Affiliates may proceed. Permitting a court‑appointed receiver to avoid arbitration on the basis that it is not a party to the debtor’s pre‑existing agreement to arbitrate is inconsistent with a proper reading of s. 15 (B.C. Arbitration Act), ordinary principles of contract law, party autonomy, and the S.C.C.’s longstanding jurisprudence with respect to arbitration. Nor can disclaimer or the doctrine of separability permit receivers to unilaterally render otherwise valid arbitration agreements “inoperative” or “incapable of being performed” within the meaning of s. 15. Only a court can make a finding that an arbitration agreement is inoperative or incapable of being performed. Although s. 15 is engaged, the chambers judge was entitled to refuse to grant a stay under s. 15(2). An otherwise valid arbitration agreement may, in some circumstances, be inoperative or incapable of being performed. The fact that a party has entered receivership or insolvency proceedings or is financially impecunious is not, on its own, a sufficient basis for a court to find an arbitration agreement inoperative. The party seeking to avoid arbitration must establish, on a balance of probabilities, that a stay in favour of arbitration would compromise the integrity of the parallel insolvency proceedings. The following non‑exhaustive list of factors may assist in the court’s analysis: (a) the effect of arbitration on the integrity of the insolvency proceedings, which are intended to minimize economic prejudice to creditors; (b) the relative prejudice to the parties to the arbitration agreement and the debtor’s stakeholders; (c) the urgency of resolving the dispute; (d) the effect of a stay of proceedings arising from the bankruptcy or insolvency proceedings, if applicable; and (e) any other factors the court considers material in the circumstances. A court may find an arbitration agreement “inoperative” within the meaning of s. 15(2) of the Arbitration Act where enforcing it would compromise the orderly and efficient resolution of insolvency proceedings, including a court‑ordered receivership under s. 243 of the BIA.

Criminal Law: Sentencing; Higher than Crown Recommendation
R. v. Nahanee,2021 BCCA 13; 2022 SCC 37 (39599)

The public interest test adopted by the S.C.C. in Anthony-Cook does not, and should not, apply to contested sentencing hearings following a guilty plea, regardless of the amount of prior negotiation between the parties culminating in the plea. In such cases, however, if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions — failing which, they run the risk of having the harsher sentence overturned on appeal for any one of the following three errors in principle:

  • the appellant establishes there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence;
  • the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or
  • the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence.

Criminal Law: Conditional Sentencing
R. v. Sharma, 2020 ONCA 478; 2022 SCC 39 (39346)

It is undisputed that a sentencing judge must take account of the particular circumstances of Indigenous offenders, as that is what Parliament has directed in s. 718.2(e). How this is to be done may take various forms and the Criminal Code provides judges broad discretion to craft a proportionate sentence, given the offender’s degree of responsibility, the gravity of the offence and the specific circumstance of each case. For instance, sentencing judges may consider other non carceral options such as suspended sentences and probation. They may also reduce sentences below the typical range. It is true that suspended sentences are “primarily a rehabilitative sentencing tool”, whereas conditional sentences “address both punitive and rehabilitative objectives”. Suspended sentences are not irrelevant to applying s. 718.2(e). Where conditional sentences are unavailable, judges may give effect to s. 718.2(e) by considering suspended sentences with openness and flexibility. To the extent the Court of Appeal pointed to Ms. Sharma’s circumstances as demonstrative of Parliament’s overreach, it collapsed the concept of seriousness of the offence into the concepts of circumstances of the offender and particulars of the crime. The circumstances which led Ms. Sharma to import drugs are tragic and her moral culpability was thereby attenuated (which was reflected in a sentence of 18 months rather than the six years initially proposed by the Crown). But those facts do not make importation of a Sch. I substance, particularly in the quantity she carried (1.97 kilos) any less serious.

Criminal Law: Sex Offender Registry
R. v. Ndhlovu, 2020 ABCA 307; 2022 SCC 38 (39360)

The Sex Offender Information Registration Act was not enacted with complete or total registration as an end in itself. It was enacted to help police prevent and investigate sex offences. The purpose of both challenged measures in the Criminal Code is closely tied to this overall purpose. The specific purpose of s. 490.012 is to capture information about offenders that may assist police prevent and investigate sex offences. The means to achieve this purpose is mandatory registration. Section 490.013(2.1) was similarly designed to give police a longer period of access to information on offenders at a greater risk of reoffending. The means to achieve this purpose is lifetime registration for sex offenders who commit more than one designated offence. The extent to which requiring all offenders to register is necessary due to the difficulties in assessing risk is an argument grounded in enforcement practicality or administrative convenience. It relates to justification rather than overbreadth. While mandatory registration has the attraction of simplicity and ease, the convenience of requiring every sex offender to register does not make it constitutional. The Crown’s evidence on the challenged measures’ benefits is insufficient to meet its burden under s. 1. Section 490.013(2.1) is invalid; offenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration.

Municipal Law: Expropriation
Annapolis Group Inc. v. Halifax Regional Municipality, 2021 NSCA 3; 2022 SCC 36 (39594)

The S.C.C. 2006 CPR case signifies that a constructive taking occurs where: a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and the impugned regulatory measure removes all reasonable uses of the private property at issue. The jurisprudence — upon which the CPR test was expressly stated as resting — supports an understanding of “beneficial interest” as concerned with the effect of a regulatory measure on the landowner, and not with whether a proprietary interest was actually acquired by the government. Conversely, that same jurisprudence supports the view that “beneficial interest”, as that term appears in the first part of the test stated in CPR, refers not to actual acquisition of the equity that rests with the beneficial owner of property connoting rights of use and enjoyment, but to an “advantage” flowing to the state. CPR — properly understood — trains the court’s eye on whether a public authority has derived an advantage, in effect, from private property, not on whether it has formally acquired a proprietary interest in the land; to hold otherwise would be to erase the long standing distinction between de jure and de facto expropriation from Canadian law. The reviewing court must decide: whether the public authority has acquired a beneficial interest in the property or flowing from it (i.e. an advantage); whether the state action has removed all reasonable uses of the property. This gives effect to a common law right to compensation where the two-part CPR test is satisfied; and accords with imperatives of justice and fairness, which underpin the assessment of expropriation claims, and remedies situations where cases do not neatly fit within the expropriation legislative framework and would otherwise “fall between the cracks”.

Leaves to Appeal Granted

Media/Criminal Law: Publication Bans
Canadian Broadcasting Corporation, et al. v. Coban et al., 2022 BCSC (40223)

Publications ban in criminal law context.

Criminal Law: Publication Bans
La Presse inc. v. Silva, 2022 QCCA 1006 (40175)

Media application to lift publication ban.

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