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 April 14 – May 17, 2023 inclusive.


Constitutional law: Division of powers
Murray-Hall v. Québec (Attorney General), 2021 QCCA 1325; 2023 SCC 10 (39906)

The pith and substance of the impugned provisions is to ensure the effectiveness of the Québec monopoly in order to protect the health and security of the public, and of young persons in particular, from cannabis harm. It follows that the prohibitions against the possession of cannabis plants and their cultivation at home set out in ss. 5 and 10 of the provincial Act are a means of serving the public health and security objectives pursued by that Act. In short, when viewed together with the other provisions of the provincial Act, ss. 5 and 10 do not have the separate and independent objective of prohibiting the possession and cultivation of cannabis plants for personal purposes. The impugned provisions do not represent a colourable attempt to re‑enact the criminal law prohibitions repealed by Parliament. This appeal is a textbook case for the application of the double aspect doctrine. The regulation of the use of drugs, including cannabis, has both federal and provincial aspects, which makes it conceivable that laws enacted by both levels of government will apply concurrently.

Criminal Law: Delay
R. v. Hanan, 2022 ONCA 229; 2023 SCC 12 (40097)

The trial judge erred in holding that a transitional exceptional circumstance applied, and the majority of the Court of Appeal erred in upholding his decision. First, the parties could not have reasonably relied upon the pre-Jordan state of the law after Jordan had been decided in July 2016. Nor did the parties actually rely upon the pre‑Jordan state of the law, as they consciously scheduled a trial within the Jordan ceiling. As noted by Nordheimer J.A. in dissent, “only a very small portion of the delay in this case preceded the decision in Jordan and most, if not all, of that delay has been laid at the feet of the defence”. The trial judge erred in concluding that the delay in this case was “justified based on the parties’ reasonable reliance on the law as it previously existed”. Second, the delay beyond the ceiling was due not to a lack of time for the system to ameliorate ingrained institutional delays, but to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay, and despite Jordan having been decided almost two and a half years earlier. Were it not for the Crown’s decision, the trial would have occurred within the ceiling. No transitional exceptional circumstance applies in this case. The result is that the net delay of about 35 months is an unreasonable delay contrary to s. 11(b).

Criminal Law: Stays; Abuse of Process
R. v. Haevischer, 2021 BCCA 34; 2023 SCC 11 (39635)

An application in a criminal proceeding, including for a stay of proceedings for abuse of process, should only be summarily dismissed if the application is “manifestly frivolous”. This threshold best preserves fair trials, protects the accused’s right to full answer and defence, and ensures efficient court proceedings. The blunt tool of summary dismissal, which precludes the applicant from proceeding, is not the only way judges can protect efficiency. The judge’s panoply of case management powers allows for tailored proceedings and mitigates concerns that “fishing expeditions” may derail a trial’s progress, generate undue delay, or result in the disproportionate use of court time.

Family Law: Domestic Contracts
Anderson v. Anderson, 2021 SKCA 117; 2023 SCC 13 (39884)

The specific question here is whether the Miglin framework ought to apply to agreements that are not presumptively binding under the Saskatchewan Family Property Act (“FPA). It is inappropriate to import the Miglin framework without modification in light of the structure of the FPA and the nature of family property division. Still, principles from Miglin and other cases dealing with domestic contracts help inform judges’ exercise of discretion under s. 40 of the FPA. If a court is satisfied of the agreement’s validity and procedural integrity, it then may consider the agreement in determining the appropriate order for the distribution of property. Given the considerable value placed on spousal autonomy to contract in the legislation and the jurisprudence, the substance of an agreement that represents the parties’ subjective understanding of what property division was appropriate in the context of their relationship at the time of separation merits serious consideration. The trial judge erred in failing to consider the terms of the agreement in dividing the family property: there was nothing to suggest the agreement was not binding, that one party took advantage of the other or did not understand the bargain; as a result, the agreement was a relevant factor meriting serious consideration and the trial judge should have determined whether the substance of the agreement was fair and equitable by reference to the legislative scheme. The trial judge also erred in finding this was not a binding agreement. Consensus on all essential terms does not mean that the parties cannot defer the final resolution of an issue where the parties, as here, have included in the agreement a detailed and objective method by which to resolve it later. Neither the lack of disclosure nor the lack of legal advice was a reason to discount the agreement. Disclosure is not a statutory precondition to the enforceability of an agreement under the FPA, even for an interspousal contract. Rather, s. 27(1) provides that a court may order disclosure between spouses upon the commencement of an application under the FPA.

Leaves to Appeal Granted

Criminal Law: Second Degree Murder; Self-Defence
Hodgson v. R., 2022 NUCA 9 (40498)

Scope of self-defence.

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