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 October 18 – November 22, 2024 inclusive.

Appeals

Administrative Law/ Tax: Subordinate Legislation; Standard of Review
TransAlta Generation Partnership v. Alberta, 2022 ABCA 381; 2024 SCC 37 (40570)

In the companion case, Auer v. Auer, 2024 SCC 36, the S.C.C. held, as established in Vavilov the reasonableness standard presumptively applies when reviewing the vires of subordinate legislation. The Linear Guidelines discriminate against TransAlta and other parties to off‑coal agreements by depriving them of the ability to claim additional depreciation reflecting the reduced lifespan of their coal‑fired facilities. However, that discrimination is statutorily authorized by necessary implication. To ensure that the assessment of TransAlta’s coal‑fired facilities was “current, correct, fair and equitable” it falls within a reasonable interpretation of the Minister’s statutory grant of power to conclude that same was authorized to deprive TransAlta of the ability to claim additional depreciation. Having regard to the governing statutory scheme, the principles of statutory interpretation, and the common law rule against administrative discrimination, the Linear Guidelines are intra vires the Minister.

Criminal Law: Driving Prohibitions
R. v. Wolfe, 2022 SKCA 132; 2024 SCC 34 (40558)

The driving prohibitions imposed here were unlawful. Criminal negligence offences are no longer listed under s. 320.24(4) as offences that can attract a driving prohibition. The Crown’s proposed interpretation depends on the proposition that, following the enactment of Bill C-46, Parliament’s use of the term “found guilty” permits punishment to be imposed by implication and indirectly, rather than expressly and directly. This interpretation is implausible; it conflicts with the text of s. 320.24(4), sits in tension with the surrounding statutory context and purpose, and fails to fully accord with criminal law principles. Parliament has broadly signalled through Bill C-46 that resorting to specific driving-related offences is preferable to general criminal negligence offences in driving cases. The changes to the availability of discretionary driving prohibitions reflect a logical and deliberate choice to limit driving-specific punishments to driving-specific offences. Criminal negligence offences are not listed as offences that can attract a discretionary driving prohibition. They used to be listed, but are no longer. Parliament has expressed a strong legislative signal by repealing the provision that listed such criminal negligence offences and enacting another section that excludes them.

Criminal Law: Preliminary Inquiries
R. v. Archambault, 2022 QCCA 1170; 2024 SCC 35 (40428)

The amendment made to s. 535 is procedural in nature but affects a substantive right, that is, an accused’s right under s. 548(1)(b) to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge. The Court of Appeal erred in holding that the right to a preliminary inquiry is governed by the law in force at the time the offence was committed.

Here the respondents had a vested right to a preliminary inquiry. The right to a preliminary inquiry crystallizes at the time charges are laid. In the absence of a transitional provision, such an interpretation is the one most consistent with both the text of s. 535 and the presumption that Parliament does not intend to interfere with the vested rights or privileges of accused persons. This interpretation is also anchored in the notion that criminal trials do not all proceed in the same purely linear fashion and that they each have their own particular features. Finding that the right vests when charges are laid, a stage common to all cases, better acknowledges the flexibility of criminal procedure and the delays that may be caused by the Crown or the delays inherent in the justice system.

Criminal Law: Trafficking in Persons; Evidence
R. v. T.J.F., 2023 NSCA 28; 2024 SCC 38 (40749)

The fact that trial judge did not discuss in greater detail the influence that specific evidence had on his reasoning is not an error of law. The trial judge was not required to “set out every finding or conclusion in the process of arriving at the verdict”, nor did he have to detail his finding on each piece of evidence before him (R.E.M., at paras. 18 and 20). The object of s. 279.01(1) is to comprehensively respond to all forms of trafficking in persons with a focus on women and children, who are more commonly affected. The text, context, and purpose of s. 279.01 all support the position that the Crown can adduce evidence showing an accused’s violent relationship with a victim, or regular violence and threats of violence against the victim, in an effort to establish the actus reus of the trafficking in persons offence. Such conduct can amount to exercising control, direction, or influence over their movements during a period of time, provided that the effect of that violence is that the victim’s movements have been effectively controlled, directed, or influenced during that time. In sum, exploitation occurs when the accused engages in any conduct, including regular violence and threats of violence, that both causes the victim to provide (or offer to provide) labour or a service and could be reasonably expected to cause the victim to believe that their safety (or the safety of a person known to them) would be threatened if they failed to provide that labour or service. The latter must be assessed using an objective test, having regard to all the circumstances, including the victim’s vulnerabilities. However, the trial judge committed an error of law here when he held that the evidence of regular violence and threats of violence by the accused against the complainant provided by the other witnesses was evidence of past discreditable conduct. To the contrary, this evidence could have been relevant to the essential elements of the offence and could have formed the basis of a finding that the accused controlled, directed, or influenced the movements of the complainant during the time period specified in the indictment. It could also have been found to be a contributing cause of the complainant’s provision of sexual services. The Crown has established that the trial judge’s reasonable doubts could have been resolved had the error of law not occurred. The trial judge could not assess that evidence as conduct by the accused relevant to the essential elements of the offence and the definition of exploitation. The fact that he nevertheless admitted the evidence could not and did not cure that error.

Family Law: Child Support Guidelines; Standard of Review
Auer v. Auer, 2022 ABCA 375; 2024 SCC 36 (40582)

The reasonableness standard as set out in Vavilov presumptively applies when reviewing the vires of subordinate legislation. Some of the principles from Katz Group continue to inform such reasonableness review: (1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; (2) subordinate legislation benefits from a presumption of validity; (3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and (4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice.

However, for subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with the robust reasonableness review detailed in Vavilov and would undermine Vavilov’s promise of simplicity, predictability and coherence. The Child Support Guidelines are intra vires. They fall within a reasonable interpretation of the scope of s. 26.1 of the Divorce Act, having regard to the relevant constraints. This authority is constrained by s. 26.1(2) which requires that the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute. The Child Support Guidelines respect this constraint.

Leaves to Appeal Granted

Criminal Law: Disclosure
Chief of the Edmonton Police Service v. McKee, et al., 2023 ABKB 698 (41110)

Disclosure issues re police officer records.

Elections: Loss of Chance
Resler v. Anglin, 2024 ABCA 113 (41298)

Loss of chance in elections context.