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 November 13 – December 31, 2025 inclusive.

Appeals

Class Actions: Securities; Secondary Market Disclosure
Lundin Mining Corp. v. Markowich, 2023 ONCA 359; 2025 SCC 39 (40853) Nov. 28, 2025

The motion judge herein erred by relying on restrictive definitions of “change”, “business”, “operations”, and “capital”, and then erred by applying those definitions to determine whether there was a reasonable possibility that there had been a material change. The Ontario legislature intentionally left these terms undefined to allow the legislation to be applied flexibly and contextually to a wide range of industries and corporate structures. The disclosure standards in the Securities Act should be applied to promote the statutory purpose of preventing and deterring informational asymmetry between issuers and investors, while recognizing that the statutory terms at issue acquire meaning by being applied in concrete factual circumstances. By contrast, adopting rigid definitions would ossify the Securities Act and would frustrate the statutory purpose. Moreover, as the S.C.C. previously has stated, the test for leave under s. 138.8(1) of the Securities Act requires a “plausible analysis of the applicable legislative provisions, and some credible evidence in support of the claim”. A “plausible analysis” is not a plausible statutory interpretation, but rather a plausible application of the legislation to the facts. Statutory interpretation is conducted in accordance with the modern principle, both on a motion for leave and at a trial on the merits. A plausible analysis must, however, show how the legislation applies to the facts by accounting for the limited evidence available on a motion for leave, which is brought before there has been documentary production or oral discovery. Here, the uncontested evidence on the motion was that the pit wall instability and rockslide impacted the company’s operations at its mine. Hence, the evidence showed that these events could have resulted in a “change”. No one challenges the conclusion of the courts below that there is a reasonable possibility these events could be shown at trial to be “material”. Accordingly, a plausible analysis of the applicable legislative provisions and evidence on the motion showed a reasonable or realistic chance that the action could succeed. The distinction between a material fact and a material change, and particularly the requirement that a material change be internal to the issuer, is “deliberate and policy-based” (Kerr, at para. 38). Negotiations and internal deliberations, without more, will not usually amount to a change in the business, operations or capital of the issuer, even if they are material. Care must be taken in using dictionaries to give definitive meaning to terms that a legislature has intentionally left undefined; substituting a dictionary definition for the intentionally undefined term “change” restricts the reach of the legislation, contrary to the legislature’s purpose.

Criminal Law: Arrest
R. v. Carignan, 2024 QCCA 86; 2025 SCC 43 (41186) Dec. 12, 2025

Section 495(2) has to be interpreted to determine whether it imposes binding limitations on the power of a peace officer who arrests a person without warrant, such that an arrest that is not in compliance with this provision becomes unlawful. This provision is binding and mandatory. In other words, an arrest that is contrary to s. 495(2) is unlawful under the Criminal Code. It obliges a peace officer not to arrest a person without warrant when all of the requirements set out in s. 495(2) are met. And s. 495(3) is to be interpreted so as to determine whether its effect is to deprive an accused of the opportunity to allege an infringement of s. 9 of the Charter and to obtain a remedy under s. 24 in a criminal proceeding relating to the accused’s own criminal liability. This provision applies in very specific cases, namely where a proceeding specifically concerns the liability of the peace officer who made an arrest contrary to s. 495(2) and of any person responsible for that peace officer. On the one hand, s. 495(3)(a) applies where the proceeding is brought under the Criminal Code or any other Act of Parliament and concerns the criminal liability of the peace officer or of persons responsible for that officer. On the other hand, s. 495(3)(b) applies where the proceeding is brought under a statute that is not the Criminal Code or another Act of Parliament. This includes a civil proceeding that concerns the civil liability of the peace officer who made the arrest contrary to s. 495(2) or of persons responsible for that officer. In summary, an analysis of the context of s. 495(1), (2) and (3) reveals a coherent legislative structure in which each provision plays a complementary role; section 495(1) creates a power of arrest without warrant, while s. 495(2) strictly regulates the exercise of this power by imposing binding limitations. The existence of s. 495(3) confirms the normative character of s. 495(2) by setting out protective mechanisms in the event of non-compliance.

Criminal Law: Attempted Murder; Aiding Suicide
R. v. B.F., 2024 ONCA 511; 2025 SCC 41 (41420) Dec. 5, 2025

The S.C.C. allowed the Crown’s appeal, restored B.F.’s conviction for the attempted murder of I.F., and dismissed B.F.’s appeal. The Court of Appeal unnecessarily complicated this matter by holding that the jury needed to be instructed on the distinction between attempted murder under s. 239 of the Criminal Code and aiding suicide under s. 241(1)(b). The distinct offence of aiding suicide was neither charged nor is it a lesser included offence. Further, there was no air of reality to a scenario in which I.F. self-administered the insulin with an intention to end her own life. The trial judge was therefore correct not to address this scenario in his instructions, which properly equipped the jury to decide B.F.’s guilt on all relevant charges. The question of the legal relationship between attempted murder and aiding suicide has no bearing on the appeals. In summary, even if one were to accept B.F.’s submission that I.F.’s voluntary suicide attempt would be relevant to B.F.’s liability for attempted murder, the trial judge would only need to instruct the jury on that theory if it had an air of reality on the record. And the Crown is agreed with that there is no air of reality to the theory that I.F. voluntarily injected herself with insulin with the intent to end her life. The trial judge appropriately refrained from addressing this theory when instructing the jury. Further in summary, B.F. did not point to any error in the jury instructions that justifies appellate intervention. The instructions did not assert that B.F. had, in fact, procured the insulin pens from her work. Rather, they adequately summarized the pertinent evidence at trial and rightly invited the jury to draw its own conclusion on the evidence.

Criminal Law: DUI Evidence
R. v. Larocque, 2024 NBCA 4; 2025 SCC 36 (41155) Nov. 14, 2025

In light of the principles articulated in Rousselle and the reasons that follow, while the Crown must disclose the target value to the accused as required by s. 320.34(1)(b), the Crown does not need to prove the target value at trial to rely on the presumption of accuracy. Parliament did not intend to make the target value itself a precondition, only the fact that the qualified technician conducted a system calibration check, the result of which was within 10% of the target value. Requiring the Crown to prove the target value would amount to reading in an additional technical requirement in s. 320.31(1)(a) in a manner that is contrary to Parliament’s intention as regards this precondition to the presumption of accuracy.

Criminal Law: DUI Evidence
R. v. Rousselle, 2024 NBCA 3; 2025 SCC 35 (41153) Nov. 14, 2025

Section 320.31(1) of the Code establishes a “presumption of accuracy” which allows the Crown to rely on a person’s breath alcohol test results as “conclusive proof” of their blood alcohol concentration at the time the breath tests were conducted. In order to benefit from this presumption, the Crown must prove beyond a reasonable doubt a series of preconditions set out in s. 320.31(1)(a) to (c). Notably, as part of the precondition in s. 320.31(1)(a), there must be a “system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst”. The text, purpose and context of the 2018 evidentiary scheme, together with the legislative evolution of the scheme, meant Parliament intended to maintain the scope of the evidence a qualified technician may give. Consequently, s. 320.31(1)(a) does not preclude the Crown from proving that the alcohol standard used in the system calibration check is “certified by an analyst” through the evidence of the qualified technician, either by certificate or viva voce testimony. The Crown is not required to produce evidence from the analyst, either by certificate or viva voce testimony, to prove this.

Municipal Law/Real Estate: Contract Novation
Sainte-Julie (City) v. Investissements Laroda inc., 2023 QCCA 1294; 2025 SCC 44 (41036) Dec.19, 2025

It is important to consider the legal nature of the obligation arising from this real estate agreement: is it an obligation with a term, whose exigibility is deferred in time, or a conditional obligation, which depends on an uncertain event? In this case, the S.C.C. held that the parties agreed on an obligation with a suspensive term. In other words, the City’s obligation to effect compensation for the value of the “area bank” would not become exigible until the occurrence of events that the parties considered certain, namely cadastral operations allowing for new real estate developments. The term was indeterminate because the parties did not know when those cadastral operations would take place, such that it becomes necessary to fix it. Having regard to the nature of the City’s obligation, the situation of the parties and the circumstances, the term must be fixed at December 15, 2015, when Laroda sent the City a demand letter. It was on that date that the City’s obligation with a term became exigible. As for the remedy to which Laroda is entitled, the applicable regime must be determined: is it restitution of prestations or performance by equivalence? Given the fact that novation extinguished the debt resulting from the excess land received by the City that was mistakenly transferred by Larochelle, the restitution of prestations regime does not apply to this area of land (3,898.27 m²). Rather, it is the performance by equivalence regime that applies here, both for the excess received by the City and for the additional area of land (22,807.5 m²) transferred later. As a result, Laroda is entitled to damages equivalent to the market value of the area recognized in the bank, which is to say vacant bulk land free of park fees, as it stood on the date of the term fixed, that is, at the date of the demand letter sent to the City. However, the evidence in the record does not make it possible to determine the market value as of December 15, 2015, of the area recognized in the bank. The case must therefore be remanded to the Québec Superior Court on this question alone so that evidence can be adduced, unless of course the parties come to an agreement on the market value as of December 15, 2015.

Prisons: Transfers; Habeas Corpus
Dorsey v. Canada (Attorney General), 2023 ONCA 843; 2025 SCC 38 (41132) Nov. 21, 2025

The decision to continue a particular, more restrictive form of confinement instead of placing an inmate in a lower security facility results in a deprivation of liberty. The effect of being continually held in a higher security facility is substantially the same as an inmate being involuntarily transferred to a higher security facility. Both inmates herein face greater restrictions on their daily lives and both are deprived of their liberty relative to the facility in which they potentially ought to be placed. Any distinction between the two is erroneously based on a formalistic understanding of a deprivation of liberty. The existence of alternative procedures does not impact the threshold availability of habeas corpus when a lower security classification is denied to an inmate. Should an inmate prove a deprivation of liberty and raise a legitimate ground to question the legality of the deprivation, a hearing on the merits must follow. The writ is non-discretionary and release, in this case to a lower security facility, remains the remedy, however, courts have a degree of flexibility to impose appropriate conditions on release in the case before them.

Oral Judgments

Criminal Law: Sexual Assault; Inadequacy of Trial Judge Reasons
R. v. Ouellet, 2025 QCCA 347; 2025 SCC 40 (41785) Dec. 5, 2025

There is a publication ban in this case from below. The appeal was heard on Dec. 3, 2025, and the following judgment delivered orally from the bench the same day.

The Chief Justice: “A majority of this Court would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal concerning the inadequacy of the trial judge’s reasons. Justice Côté, for her part, would have allowed the appeal for the reasons given by the dissenting judge.”

Criminal Law: Sexual Exploitation
R. v. D., 2025 NSCA 18; 2025 SCC 42 (41754) Dec. 11, 2025

There is a publication ban in this case. The appeal was heard on Dec. 5, 2025, and the following judgment delivered orally from the bench the same day.

Rowe J.: “This is an appeal from a decision of the Nova Scotia Court of Appeal dismissing an appeal by the Crown against an acquittal of Mr. DeSutter by a judge of the Nova Scotia Provincial Court. Justices Martin, Kasirer and O’Bonsawin would allow the appeal substantially for the reasons of Justice Derrick of the Nova Scotia Court of Appeal. Justice Jamal and I would dismiss the appeal substantially for the reasons of Chief Justice Wood of the Nova Scotia Court of Appeal. Accordingly, the appeal is allowed and a new trial is ordered on counts 3 and 14 in the information laid on October 25, 2021, relating to sexual exploitation of a person under 18 years of age, contrary to s. 153(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.”

Criminal Law: Transmitting Sexually Explicit Material
R. v. W.W., 2025 ONCA 115; 2025 SCC 37 (41730) Judgment rendered Nov. 14, 2025

There is a publication ban in this case, the hyperlink to the S.C.C.-produced oral judgment by Kasirer J. (7:0) on Nov. 14, 2025 is here.

Leaves to Appeal Granted

Class Actions: Multi-Jurisdictional
NHK Spring Co., Ltd., et al. v. Cheung, et al., 2024 BCCA 236 (41451) Nov. 13

Multi-jurisdiction class action issues in alleged price-fixing.

Charter: Freedom of Religion
Vabuolas, et al. v. Information and Privacy Commissioner for British Columbia, et al., 2025 BCCA 83 (41816) Nov. 20

Confidentiality of religious pastoral notes.

Prisons: Rotational Lockdowns
Diggs, et al. v. Nova Scotia (Attorney General), et al., 2025 NSCA 20 (41801) Dec. 4, 2025

Habeas corpus in rotational lockdowns context.