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 – March 5, 2025 inclusive.

Appeal

Aboriginal Law: Abuse of Power; Standard of Review; Duty to Consult
Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2023 SKCA 35; 2025 SCC 4 (40740)

The chambers judge concluded that it would constitute an abuse of process for MNS to proceed with its originating application in the original form; he struck parts of the application. The Court of Appeal overturned the chambers judge’s decision; holding there was no abuse of process. The S.C.C. dismissed the appeal emphasizing the question to be decided is whether there is an abuse of process; what is not before the S.C.C. are questions regarding the substance of the actions and the application brought by Métis Nation Saskatchewan (MNS) against Saskatchewan, some of which are to be decided in proceedings currently in Saskatchewan. Whether there is an abuse of process, is a question of law, so the applicable standard of review is correctness. For clarity: where an abuse of process has been established, a subsequent question arises, the remedy decision is discretionary; being a discretionary decision, it is “generally entitled to deference” and “may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being ‘so clearly wrong as to amount to an injustice’)” (Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, at para. 41, quoting P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15). One way in which an abuse of process can arise is by relitigation, that is, “where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined” (Behn, at para. 40, quoting Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 56, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307. Relitigation will be an abuse of process if it violates “such principles as judicial economy, consistency, finality and the integrity of the administration of justice” (Toronto (City), at para. 37; Behn, at para. 41). Where warranted, the doctrine of abuse of process can be relied on to strike pleadings so as to prevent relitigation of an issue. Abuse of process is not limited to relitigation. For example, in Behn, the S.C.C. found that “raising a breach of the duty to consult and of treaty rights as a defence”, in circumstances where the defendants had a fair opportunity to initiate proceedings and raise such claims earlier, was abusive. An inordinate delay that causes serious prejudice can give rise to an abuse of process. A multiplicity of proceedings which engage the same issues, also. However, the fact that there are two or more ongoing legal proceedings which involve the same, or similar, parties or legal issues, is in itself not sufficient. The duty to consult operates pending a final determination of claims. As such, any arguments that the duty to consult does not arise until after rights and title claims are resolved are inconsistent with the S.C.C.’s jurisprudence. The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida, at para. 35; Desautel, at para. 72). In other words, three conditions must exist for the duty to consult to arise: (1) actual or constructive knowledge of the potential existence of the Aboriginal right or title; (2) contemplated Crown conduct; and (3) a potential adverse effect on the asserted right.

Oral Judgments

Criminal Law: Homicide
R. v. Chicoine-Joubert, 2024 QCCA 488; 2025 SCC 3 (41262) Judgment rendered Feb. 20, 2025.

The Chief Justice: “A majority of the Court would dismiss the appeal, substantially for the reasons of the majority of the Québec Court of Appeal. Justice Jamal, for his part, would have allowed the appeal, substantially for the reasons of the dissenting judge.”

Criminal Law: Party Liability
R. v. Bilodeau, 2024 ABCA 148; 2025 SCC 2 (41320) Judgment rendered Feb. 19, 2025.

The Chief Justice: “We are all of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court of Appeal of Alberta. Therefore, the appeal is dismissed.”

Criminal Law: Sexual Assault; Text Messages; Prior Sexual History

R. v. Hanrahan, 2025 SCC 1 (41220) Judgment rendered Jan. 21, 2025.

(Restriction on publication in the NLCA)

Chief Justice Wagner: “A majority of this Court would dismiss the appeal substantially for the reasons of the majority at the Court of Appeal. Justices Kasirer and Jamal would have allowed the appeal. They substantially agree with the dissenting judge that the trial judge erred in law by admitting evidence of the complainant’s prior sexual history with the respondent following the application under s. 276 … , and that this error had a material bearing on the acquittal. Therefore, the appeal is dismissed.”

Leaves to Appeal Granted

Criminal Law: Forfeiture
R. v. Nguyen, et al., 2024 QCCA 674 (41400) Jan. 16, 2025

Forfeiture in criminal law context.

Constitutional Law/Religious Rights: Division of Powers; Override
English Montreal School Board, et al. v. Attorney General of Quebec, et al., 2024 QCCA 254 (41231) Jan. 23, 2025

Constitutional issues re provincial “laicity” legislation.

Constitutional Law: Division of Powers
Attorney General of Québec v. SGS Canada Inc., 2024 QCCA 460 (41334) Feb. 13, 2025

Division of powers re grain inspection.

Language: Bilingualism
La Société de l’Acadie du Nouveau-Brunswick v. The Right Honourable Prime Minister of Canada, et al., 2024 NBCA 70 (41398) Feb. 27, 2025

Bilingualism & Charter issues re Lieutenant Governor.