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 – February 28, 2026 inclusive.

Appeals

Charter: Mobility Rights
Taylor v. Newfoundland and Labrador, 2023 NLCA 22; 2026 SCC 5 (40952) Feb. 13, 2026

During the early days of the COVID‑19 pandemic, Newfoundland and Labrador declared a public health emergency. The province’s Chief Medical Officer of Health (“CMOH”) then made a series of general orders under a provincial statute that authorized the CMOH to take a wide variety of measures to protect the health of the population and prevent, remedy, or mitigate the effects of the public health emergency. One such order prohibited entry for everyone except residents, asymptomatic essential workers, and persons in certain towns on the Labrador‑Quebec border, and a subsequent order allowed exemptions for individuals in extenuating circumstances to enter the province if approved in advance by the CMOH (collectively, “travel restrictions”). A non‑resident requested an exemption to enter Newfoundland and Labrador, where her mother had unexpectedly passed away, to be with her grieving family and to attend the burial. Her initial request was denied, a reconsideration request approved 8 days later and she was permitted to enter the province. Despite having been granted entry, she joined by the CCLA, sought a declaration that the travel restrictions infringed her mobility rights as guaranteed by s. 6 of the Charter. The S.C.C. set aside the Court of Appeal’s order dismissing the appeal as moot, and modified the application judge’s order to reflect that the travel restrictions limited mobility rights as guaranteed by s. 6(1) and (2). Given the fundamental importance of free movement within Canada, the onus is firmly on the state under s. 1 of the Charter to justify them. Section 1 permits, and indeed demands, that regard for the well-being and lives of our fellow Canadians serves as a pressing and substantial objective. In sum, the application judge did not err in concluding that the government met its burden to establish that the Travel Restrictions pursued a pressing and substantial objective. The test for minimal impairment is not a standard of perfection, nor does it operate with the benefit of hindsight. The government is entitled to deference in achieving its pressing and substantial objective, particularly in a health emergency. The S.C.C. agreed with the application judge that none of the alternatives constituted a similarly effective, less rights-impairing substitute for the travel restriction to meet the objective of protecting those in Newfoundland and Labrador from illness and death. The Travel Restrictions herein were a reasonable and justified measure in a free and democratic country in the COVID-19 pandemic.

Criminal Law: Character Evidence
R. v. Hussein, 2023 ONCA 253; 2026 SCC 2 (41015) Jan. 23, 2026

Section 12(1) of the Canada Evidence Act presumptively allows the Crown to adduce evidence of the accused’s prior convictions in order to impeach their credibility. In doing so, the provision departs from the common law’s carefully calibrated rules governing character evidence. There is no requirement that the accused put their character in issue before the Crown can have their criminal record admitted into evidence. Nor does the provision explicitly address the significant risk that, even though prior convictions are technically admissible only for the purpose of assessing the accused’s credibility, the trier of fact may nonetheless rely on the evidence to infer guilt using prohibited general propensity reasoning. Recognizing the dangerous potential of this provision, R. v. Corbett, [1988] 1 S.C.R. 670, determined that s. 12(1) is consistent with s. 11(d) of the Charter on the basis that trial judges retain their common law discretion to exclude evidence when the prejudice it would cause to trial fairness outweighs its probative value. To structure the exercise of discretion in this context, the S.C.C. developed a framework outlining four factors that trial judges should consider when weighing the probative value and prejudicial effect of an accused’s prior convictions: (1) the nature of the prior convictions; (2) the recency or remoteness of the prior convictions; (3) the similarity between the prior convictions and the charge faced by the accused; and (4) the risk of presenting a distorted picture to the trier of fact. The Corbett framework has stood the test of time but warrants clarification and modification to ensure that it is applied in a predictable and principled manner.

Criminal Law: Solicitor-Client Privilege
R. v. Fox, 2024 SKCA 26; 2026 SCC 4 (41215) Feb. 6, 2026

The main issue on this appeal is whether a lawyer charged with a criminal offence can invoke the “innocence at stake” exception to solicitor-client privilege recognized in R. v. McClure, 2001 SCC 14 and R. v. Brown, 2002 SCC 32, to seek access to their client’s solicitor-client communications for use in their own defence. Under this exception, solicitor-client privilege may be set aside in rare circumstances to allow an accused to make full answer and defence to a criminal charge. A second issue is whether evidence in this case that was obtained in a manner that breached s. 8 of the Charter should be excluded under s. 24(2). The evidence consists of the non-privileged part of a phone call between a lawyer and her client, which formed part of a longer call that included privileged communications. The s. 8 breach arose when state authorities violated the terms of a wiretap authorization that required them to stop listening immediately if they reasonably believed that a lawyer was a party to the communication. A lawyer can invoke the innocence at stake exception to solicitor-client privilege recognized in McClure and Brown to seek access to their client’s privileged communications for use in their own defence. The procedure outlined in McClure and Brown can readily be adapted for this purpose. The S.C.C. agreed with the majority of the Sask. C.A. that the evidence herein was obtained in a manner that breached s. 8 and should be excluded under s. 24(2).

Insurance: Guaranteed Rebuilding Cost Coverage
Emond v. Trillium Mutual Insurance Co., 2023 ONCA 729; 2026 SCC 3 (41077) Jan. 30, 2026

The language of the policy herein is unambiguous in excluding recovery of the increased costs of compliance, other than the $10,000 extended under a limited exception. Giving effect to this unambiguous language does not deprive the insureds of the benefit of the Guaranteed Rebuilding Cost endorsement, which is to make the cost of repairs or replacement for the house payable “even if it is more than the amount of insurance” (quote from policy). Without this endorsement, the policy provides that the insurer will not pay amounts “exceeding the applicable amount(s) of insurance for any loss or damage arising out of one occurrence”. The GRC endorsement here does not allow the insureds to circumvent the compliance cost exclusion appearing elsewhere in the insurance policy. The Court of Appeal below was correct to conclude that the replacement cost of their home should be calculated in reference to that exclusion. An ambiguity can arise where two seemingly clear terms of a contract conflict in such a way that it raises multiple reasonable possibilities as to their meaning. Arguably, a provision conferring special coverage for an additional premium that is rendered valueless by an exclusion elsewhere in the policy could raise such an ambiguity. Even if nullification is conceived of as giving rise to an ambiguity in the language of the contract, rather than existing outside the interpretive framework, the practical result is the same. Reading the contract as a whole, it is unambiguous that the compliance cost exclusion applies despite the GRC endorsement.

Oral Judgments

Criminal Law: Historic Sexual Assault
R. v. B.B., 2025 ONCA 318; 2026 SCC 1 (41830) Jan. 23, 2026

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

Leaves to Appeal Granted

Civil Litigation/Charter: Charter Damages; Trial Reasons Publication
Named Persons v. Canada (Attorney General), 2025 BCCA 197 (41981) Feb. 12, 2026

Charter damages; publication of reasons for judgment.

Class Actions: Airlines; Federal Paramountcy
Consumers’ Union, et al. v. Air Canada, 2025 QCCA 480 (41866) Feb. 5, 2026

Class action issues re airline ticket pricing.

Constitutional Law: Crown Liability
Ontario Place Protectors v. Ontario, 2025 ONCA 183 (41805) Jan. 8. 2026

Constitutionality of eliminating causes of action against Crown.

Criminal Law: Eyewitness Identification
Sarroino v. R., 2025 QCCA 573 (41927) Feb. 12, 2026

Eyewitness identification evidence.

Criminal Law: Eyewitness Identification
Bowcock v. R., 2025 BCCA 124 (42055) Feb. 12, 2026

Eyewitness identification evidence.

Criminal Law: Sentencing
R. v. K.B., 2025 QCCA 841 (42025) Feb. 12, 2026

Sentencing re assault offences.

Criminal Law: Sexual Assault
B. v. R., 2025 ABCA 270 (42030) Feb 9, 2026

Issues re alleged non-condom sexual assault.

Elections: Delimitation of Electoral Divisions
Attorney General of Québec v. Lalande, et al., 2025 QCCA 1558 (42152) Feb. 16, 2026

Process re delimitation of electoral divisions.

Labour Law: Health & Safety
GTC Canada Limited Partnership v. International Longshore and Warehouse Union Ship and Dock Foreman, Local 514, 2025 FCA 100 (41951) Feb. 12, 2026

Health & safety issues in labour law context.

Municipal Law: Bylaws
Westcan Recyclers Ltd., et al. v. City of Calgary, 2025 ABCA 67 (41752) Feb. 5, 2026

Issues re real estate development and municipal bylaws.

Time of the Essence Clauses
Cold Ocean Salmon Inc. v. Nova Fish Farms Inc., 2025 NLCA 28 (42032) Jan. 22, 2026

Interpretation and applicability of time of the essence clauses.

Transportation Law: Railways
Canadian National Railway Company v. Alberta Pacific Forest Industries Inc., 2025 FCA 160 (42092) Feb. 19, 2026

Issues re review of Canadian Transportation Agency decision.