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 May 23 – June 26, 2025 inclusive.

Appeals

CRIMINAL LAW: COURT OF APPEAL POWERS
R. v. Bouvette, 2023 BCCA 152; 2025 SCC 18 (40780)

An acquittal was entered herein pursuant to s. 686(2). Quoting Crown counsel at the hearing, “an acquittal is an acquittal is an acquittal and the route doesn’t matter”. In light of the Crown’s undertaking not to call evidence even if a new trial were convened, Ms. Bouvette’s acquittal is a foregone conclusion. Here, the Crown has undertaken to this Court, notwithstanding evidence that suggests a conviction is possible, to seek an acquittal and, if a new trial is ordered, not to produce evidence, including the evidence it has in hand. Convening a trial in Ms. Bouvette’s case, where the Crown has said it seeks an acquittal and has undertaken not to adduce evidence at a new trial, would be a pointless exercise and a waste of limited judicial resources. A principled framework for the exercise of s. 686(2) should not permit an appellate court faced with these circumstances to deny an acquittal. To be clear, it remains the appellate court’s power to acquit under s. 686(2), not that of the Crown. In the circumstances, it should be for future courts to scrutinize other purported grounds for acquittal, including those conferring on the appellate court appropriate discretion, in cases where such grounds would actually affect the disposition. They will be in a better position to assess whether, as with the grounds recognized above, entering an acquittal in the circumstance is appropriate in light of the role of the appellate court and the understood meaning of an acquittal. Where there is no other basis for an acquittal as the just outcome, the interests of justice and the circumstances of a given case will ensure that the law develops usefully and even-handedly. Herein, and instances like it, an appellate court can and should exercise its statutory authority to enter an acquittal forthwith given that the time, expense and uncertainties associated with a hypothetical trial on appeal need not be incurred.

CRIMINAL LAW: FIT SENTENCE; DELAY; ENHANCED CREDIT
J.W. v. R., 2023 ONCA 552; 2025 SCC 16 (40956)

The S.C.C. was asked to clarify the meaning of “wrongful conduct” as contemplated in R. v. Summers, 2014 SCC 26 at para. 48, in particular whether an offender’s pre-trial or pre-sentence delays can constitute wrongful conduct so as to disqualify the offender from pre-sentence custody credit under s. 719(3.1). The evidence indicated the appellant’s conduct prior to being found unfit was a consequence, entirely or to a significant degree, of his mental and cognitive state. The appellant’s actions, while having caused significant delays, did not constitute wrongful conduct that would disqualify him from enhanced credit. While conditions in a mental health facility will be different than those in a remand centre, both constitute forms of imprisonment.

CRIMINAL LAW: SEXUAL ASSAULT; SEXUAL INACTIVITY EVIDENCE
R. v. Kinamore, 2023 BCCA 337; 2025 SCC 19 (40964)

Does evidence of a complainant’s sexual inactivity constitute a form of presumptively inadmissible evidence under s. 276 of the Criminal Code and the analogous common law rules governing Crown-led evidence of a complainant’s sexual history. In R. v. R.V., 2019 SCC 41 the Court explicitly left this question open but expressed doubt about appellate authority that has held that such evidence is not captured by these exclusionary rules. The Court now confirms that sexual inactivity evidence is indeed presumptively inadmissible under s. 276 and the common law given that it forms part of a complainant’s sexual history and can evoke distinct myths and stereotypes that these rules seek to eliminate. The second issue relates to the substantive and procedural requirements that apply to Crown-led evidence of a complainant’s sexual history. Subject only to two necessary modifications the common law rules on substantive admissibility and procedure should align with those that apply to defence-led evidence under s. 276. A harmonized regime for the admission of sexual history evidence will best allow courts to perform their important evidentiary gatekeeping function, without creating the undue complication that parallel regimes could cause.

DIVISION OF POWERS: INTERJURISDICTIONAL IMMUNITY
Opsis Airport Services Inc. v. Quebec (Attorney General), 2023 QCCA 506; 2023 QCCA 325; 2025 SCC 17 (40786) (40791)

These appeals afforded an opportunity to look at the contours of the doctrine of interjurisdictional immunity. Since the landmark case of Canadian Western Bank v. Alberta, 2007 SCC 22 the S.C.C. has continued, for the reasons mentioned in that case, to take a cautious approach to the applicability and scope of this doctrine. Despite the Court’s hesitation to make increased use of this doctrine, the jurisprudence shows that it still remains useful. The reasons herein are in line with the decisions rendered by the Court since Canadian Western Bank. Some aspects of the licensing scheme established by the Québec Private Security Act have the effect of giving the administrative body created by the provincial legislature the final say on the manner in which the appellants’ security activities falling within the core of an exclusive federal power are conducted. These impairing aspects of the Act cannot be severed from the rest of the statute, which means that the statute must be declared wholly inapplicable to the appellants pursuant to the doctrine of interjurisdictional immunity. To summarize, two aspects of the Acts licensing scheme meet the second condition for the applicability of the doctrine. First, with regard to agent licences, the impairment arises from the powers that the Bureau has where it determines that the standards of conduct for private security have been violated (s. 30). Second, with regard to agency licences, the impairment arises from the powers that the Bureau has where the directives it issues regarding private security activities are not complied with (s. 29). It is not necessary to consider the parties’ arguments on the doctrine of federal paramountcy.

FAMILY LAW: “HABITUAL RESIDENCE”; JURISDICTION
Dunmore v. Mehralian, 2023 ONCA 806; 2025 SCC 20 (41108)

On December 9, 2024, the Supreme Court of Canada dismissed the appeal below with reasons to follow. What follows is a summary of those reasons. What does it mean for a child to be habitually resident in a place for the purpose of determining if a court has jurisdiction to hear a proceeding concerning that child under the Ontario Children’s Law Reform Act? While there are important differences in the principles bearing on cases that fall within and outside the Hague Convention, it remains true, the S.C.C. said in Office of the Children’s Lawyer v. Balev, [2018] 1 S.C.R. 398, that residence is a contextual and factual concept that should not be encumbered by unnecessary rigidity. As with the approach adopted in Balev, the court should consider all factors relevant to a child’s residence because this is the approach that best protects children. The guiding principle is not whether the parents had a settled intention to reside in the place but whether the child was at home there. In this case, the motion judge considered all the relevant circumstances and concluded that the family was residing in Ontario when the child last lived with both parents. There is no basis to interfere with that finding. The Ontario courts were therefore right to dismiss Mr. Dunmore’s motion to have the child immediately returned to Oman. Courts asking where the child is at home should look to “all relevant links and circumstances” (Zafar, at para. 74, citing Balev, at paras. 43-45). This means all relevant circumstances, because the mere fact that the list of factors is not closed does not mean that every imaginable factor will be relevant.

Leaves to Appeal Granted

COMMERCIAL LEASES: TERMINATION
Aphria Inc. v. Canada Life Assurance Company, et al., 2024 ONCA 882 (41665)

Repudiation and termination issues in commercial leases context.

CRIMINAL LAW: DUI; EVIDENCE EXCLUSION
Korduner v. R., 2025 ABCA 30 (41737)

Exclusion of evidence in DUI context.

PRIVACY: SOCIAL MEDIA
Facebook Inc. v. Privacy Commissioner of Canada, 2024 FCA 140 (41538)

Social media in PIPEDA context.