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 January 1 – February 8, 2024 inclusive.


Criminal Law: Stays; ss.10(b) & 7; s. 24(1) Standing
R. v. Brunelle, 2021 QCCA 1317; 2024 SCC 3 (39917)

All of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, the Court of Appeal is agreed in so far as the Québec Superior Court had to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed and that it failed to do so, thereby committing a reviewable error. That determination had to be made in order to decide whether the infringements as a whole met the threshold for abuse of process in the residual category. This is therefore a situation in which the frameworks for ss. 8 and 10(b) are complementary to the s. 7 framework. The Superior Court also erred in entering a stay of proceedings for all of the appellants without first considering less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that it thought it had identified. These errors justify holding new trials, including new hearings on the appellants’ motion for a stay of proceedings and for the exclusion of evidence. However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedings against them. To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them. In this case, each of the appellants meets this requirement, since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.

Access to Information: Cabinet Records; Mandate Letters
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74; 2024 SCC 4 (40078)

A CBC journalist requested access to 23 mandate letters that the Premier of Ontario delivered to each of his ministers shortly after forming government in 2018. The letters set out the Premier’s views on policy priorities for the government’s term in office. Cabinet Office declined the journalist’s request, claiming the letters were exempt from disclosure under the Cabinet records exemption in s. 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act, which protects, in its opening words, the confidentiality of records that would reveal the “substance of deliberations” of Cabinet or its committees. The CBC appealed to the Information and Privacy Commissioner of Ontario (“IPC or Commissioner”), who found that the letters were not exempt and ordered their disclosure. The IPC’s decision was unreasonable. The Commissioner paid careful attention to the text of the legislation and considered some of the purposes of Cabinet confidentiality. His reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government. Moreover, even on the Commissioner’s interpretation of s. 12(1), his application of the standard to the Letters was unreasonable. The IPC’s characterization of the Letters as containing only non-exempt “topics” or final “outcomes” of the Premier’s deliberative process did not account for the broader context of the Cabinet’s deliberative process. The IPC’s narrow interpretation of the “substance of deliberations” was unreasonable. And even on his understanding of the provision, his application of the provision to the Letters was unreasonable. The Letters, along with the representations of Cabinet Office, were clearly sufficient to establish the Letters fell within s. 12(1).

Oral Judgments

Military: Sexual Assault
R. v. Vu, 2023 CMAC 2; 2024 SCC 1 (40655)

The Chief Justice: “The respondent was acquitted of sexual assault before the Court Martial. The Crown appealed, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles. A majority of the Court Martial Appeal Court dismissed the Crown’s appeal. Justice McVeigh, in dissent, would have allowed the appeal and ordered a new trial. The Crown appeals to this Court as of right. A majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court Martial Appeal Court. The military judge’s assessment of the evidence was thorough and cumulative. Reading the judgment as a whole, the military judge did not adopt a piecemeal or narrow approach to the evidence. In addition, we are not persuaded that the military judge applied the wrong legal principles. While we agree with all of the justices of the Court Martial Appeal Court that the military judge engaged in some improper speculation, we share the majority’s view that these comments did not undermine the military judge’s fundamental findings. For her part, Justice O’Bonsawin would allow the appeal for the reasons of Justice McVeigh, at paras. 39-90 and 119-26 (CanLII). Therefore, the appeal is dismissed.”

Criminal Law: Fraud/Attempted Fraud
R. v. Landry, 2022 QCCA 1186; 2024 SCC 2 (40394)

Karakatsanis J.: “This is an appeal as of right from a judgment that was the subject of dissent on a question of law. In this case, the majority of the Québec Court of Appeal upheld the fraud conviction and the dissenting judge would have substituted a verdict of attempted fraud for that verdict. There is therefore a “disagreement which affects the result” within the meaning of R. v. D’Amico, 2019 SCC 23, [2019] 2 S.C.R. 394, at para. 3. The majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court of Appeal. Côté J., for her part, would have allowed the appeal in part to substitute an attempted fraud conviction for the fraud conviction, substantially for the reasons of Cotnam J.A., and would have remitted the matter to the trial court for sentencing. Therefore, the appeal is dismissed.”

Leaves to Appeal Granted


Prisons: Inmates
John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2022 SKCA 144 (40608)

Standard of proof re inmate discipline.

Torts: Jurisdiction; Accidents Abroad
Sinclair, et al. v. Venezia Turismo, Venice Limousine S.R.L, Narduzzi E Solemar S.L.R., 2023 ONCA 142 (40696)

Jurisdiction in Canadian courts re accidents abroad.

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