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 June 27 – August 27, 2025 inclusive.

Appeals

Civil Litigation/Private International Law: Jurisdiction
Sinclair v. Venezia Turismo, 2023 ONCA 142; 2025 SCC 27 (40696)

In cases where parties seek to establish jurisdiction simpliciter in a Canadian forum over a foreign dispute, it is critical that they plead with precision and that courts engage in robust reasoning, which includes a thorough review of the contract being relied upon for the assumption of jurisdiction. Courts should be cautious and not accept tenuous forms of real and substantial connection in the jurisdiction simpliciter context. In cases where there are multiple relevant contracts, courts should analyze each contract, as opposed to relying merely on a vague “constellation of contracts”, which in the present context means a number of related contracts. If the presumptive connecting factor is established, it is for the defendant to assert a rebuttal. The defendant can do so by showing that the presumptive connecting factor does not point to any real relationship between the subject matter of the dispute and the contract made in the province or merely indicates a weak relationship between them. In the instant case, there are three purported contracts that are said to ground Ontario’s jurisdiction over the dispute: (1) the Centurion Cardmember Agreement between the Sinclairs and Amex Canada; (2) an arrangement between Amex Canada and Carey International to subcontract the procurement of travel services; and (3) a water taxi contract. While the first contract was formed in Ontario, the same is not true for the second and third contracts. In light of the basic tenets of contract law, the pleadings do not support reliance on the second and third contracts, considered separately or together, to make out Van Breda’s fourth presumptive factor. As to the Centurion Cardmember Agreement, though it is an Ontario contract, the presumption of jurisdiction has been rebutted because the connection between the dispute and Ontario is very tenuous, if not entirely non-existent. A real and substantial connection between the dispute and Ontario is simply not present. A conclusion to the contrary would result in jurisdictional overreach and would run counter to the principles of order and fairness espoused by LeBel J. in Van Breda. To hold otherwise would be to vastly expand the ability of Ontario to assume jurisdiction on the basis of simple credit card transactions made by Ontarians while travelling around the world.

Criminal Law: Fitness to Stand Trial
R. v. Bharwani.,2023 ONCA 203; 2025 SCC 26 (40781)

An accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence. The definition of “unfit to stand trial” states that the accused must have a “mental disorder” that leaves them unable “to conduct a defence . . . or to instruct counsel to do so”. Accordingly, a finding of unfitness requires affirmative answers to two questions: (1) Does the accused have a mental disorder and, (2) if so, does that mental disorder render the accused unable to conduct a defence or to instruct counsel to do so? A defence requires taking affirmative actions and making deliberate decisions. At a minimum, this includes those actions and decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence.

Criminal Law: Judge Alone v. Jury, in Covid Context
Varennes v. R., 2023 QCCA 136; 2025 SCC 22 (40662)

The parties herein disagreed on whether the Crown can challenge an order relating to the mode of trial in an appeal against an acquittal, and on the standard a trial judge must apply when deciding whether to order a judge-alone trial. On the first issue, the Court of Appeal had jurisdiction to hear the appeal. On the second issue, the Court of Appeal erred by requiring proof of an abuse of process. Our law recognizes two distinct paths for superior courts to review decisions taken by prosecutors, such as a refusal to consent under s. 473(1). First, superior courts have inherent jurisdiction, including to review core prosecutorial discretion for abuse of process and other prosecutorial decisions on a lower standard. Second, superior courts may order an “appropriate and just” remedy for a rights violation pursuant to s. 24(1), including in anticipation of probable future breaches. Such s. 24(1) remedies can have the effect of overriding a prosecutor’s decision. Either legal framework — inherent jurisdiction or s. 24(1) — could empower a superior court to order a judge-alone trial for an offence listed under s. 469. The Court of Appeal focused on whether inherent jurisdiction applied in this case, but did not consider s. 24(1) as a separate font of jurisdiction. The Crown’s decision whether to consent to a judge-alone trial is not a decision engaging core prosecutorial discretion, and so could be reviewed by the trial judge under her inherent jurisdiction on a standard lower than abuse of process. The trial judge found that proceeding with a jury trial would likely lead to unreasonable delay, and so had jurisdiction to grant her order as a Charter remedy. In sum, the trial judge was entitled to find that without intervention, a breach of s. 11(b) in the future was more likely than not. Given this finding, the trial judge had jurisdiction under s. 24(1) to order a remedy.

Criminal Law: Material Benefit & Procuring
R. v. Kloubakov, 2023 ABCA 287; 2025 SCC 25 (41017)

The material benefit and procuring offences do not prevent taking the safety measures contemplated in Bedford and do not infringe s. 7 of the Charter on this basis. A third party, such as a driver, receptionist, bodyguard, or manager, who provides security services to persons who sell their own sexual services under a cooperative arrangement, could do so lawfully, as long as they do not counsel or encourage such persons to sell sexual services, and provided that the payment or other benefit they receive is proportionate to the value of services they provide (s. 286.2(4)(d)). To interpret “commercial enterprise” under s. 286.2(5)(e) so broadly as to exclude sex workers from lawfully hiring persons who provide security services would nullify s. 286.2(4)(d), a related statutory provision. In summary, s. 286.2(5)(e) does not restrict the ability of sex workers from taking the safety measures contemplated in Bedford. It allows sex workers, either individually or collectively with other sex workers, to enter into business arrangements through which they can hire staff to provide a safe working environment, including drivers, receptionists, bodyguards, or managers, provided that third parties do not profit from the sale of sexual services. Nor does this provision prevent sex workers from operating from not-for-profit safe houses.

Criminal Law: Youths Sentenced As Adults
R. v. I.M., 2023 ONCA 378; 2025 SCC 23 (40868)

The onus of convincing the youth justice court that an adult sentence should be ordered is on the Crown (s. 72(2) YCJA). Section 72(1) sets out what the Crown must prove. An adult sentence shall be ordered when the youth justice court is satisfied that the “presumption of diminished moral blameworthiness or culpability” of the young person is rebutted and when a youth sentence would not be of sufficient length to “hold the young person accountable” for their offending conduct. When a young person is shown by the Crown to have the maturity of an adult, they lose the benefit of the presumption that would otherwise mean, because of their age, that they receive a youth sentence under the YCJA. Like the presumption itself, rebuttal of the presumption by the Crown therefore rests on proof of a fact: when the young person’s developmental age, contrary to their chronological age, indicates they have the capacity for moral judgment of an adult, the young person is no longer deserving of the presumption’s benefit. Proving that a young person has the developmental age of an adult may of course be more complicated than proving chronological age, but it is no less a factual inquiry that lends itself just as well to proof beyond a reasonable doubt. Importantly, the rule on rebutting the presumption of diminished moral blameworthiness in s. 72(1) must be read, if its meaning is uncertain, in a manner that conforms to the Charter. On a proper interpretation of s. 72(1)(a) the Crown thus bears the persuasive burden if the youth justice court is to be “satisfied” that the presumption is rebutted. The seriousness or objective gravity of the offence while relevant at the second stage of the analysis under s. 72(1)(b) has no logical bearing on the determination of whether a young person displays the capacity for moral judgment of an adult at the time of the offence. As such, it is irrelevant to rebutting the presumption in s. 72(1)(a). At the same time, factors that properly fix on the young offender’s developmental age and capacity for moral judgment, such as their mental health and background, need to be considered where they are part of the record. If the presumption is rebutted by the Crown under s. 72(1)(a), a second and distinct requirement must be met before an adult sentence can be ordered. Under s. 72(1)(b), the sentencing judge must be satisfied that a youth sentence would be insufficient to hold the young person accountable for the offence.

Criminal Law: Youths Sentenced As Adults
R. v. S.B., 2023 ONCA 369; 2025 SCC 24 (40873)

Like the companion case, R. v. I.M., 2025 SCC 23, this appeal asks the Court to determine when a young person should be sentenced as an adult pursuant to s. 72 YCJA. The principles and legal framework applicable to that decision are set out in the reasons in that judgment.

Immigration: Inadmissibility and Removal; Standard of Review
Pepa v. Canada (Citizenship and Immigration), 2023 FCA 102; 2025 SCC 21 (40840)

The Appellant asked the S.C.C. to review the decision below on a correctness standard. However, like the Federal Court and Federal Court of Appeal, the standard of review to be applied is reasonableness. The judicial task is therefore to determine if the IAD decision demonstrates an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker. The appeal is allowed, the IAD had jurisdiction to hear the appeal, and the matter remitted to the IAD for determination on the appeal.

Leaves to Appeal Granted

Contracts: Breach; Contributory Fault
Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP, et al., 2024 ONCA 925 (41673)

Issues re breach of contract and contributory fault.

Commercial Leases: Termination
Aphria Inc. v. Canada Life Assurance Company, et al., 2024 ONCA 882 (41665)

Repudiation and termination issues in commercial leases context.