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 September 1 – October 31, 2026 inclusive.

Appeal

Criminal Law: Admissibility/Use Re Complainant Sexual Activity
R. v. A.M, 2024 ONCA 661; 2026 SCC 33 (41528) Oct. 16, 2026

This appeal required the Court to determine whether the pre-screening regime in s. 276 of the Criminal Code governing the admissibility and use of evidence with respect to a complainant’s sexual activity that does not form the subject matter of the charge, applies to non-enumerated sexual services (ss. 286.1 to 286.4) and human trafficking (ss. 279.01 to 279.03) offences. The S.C.C. agreed with the respondents, A.M. and M.P., that categorically adding the sexual services and human trafficking offences to the enumerated offences in s. 276(1) would be contrary to Parliament’s intent. Moreover, extending the application of the common law pre-screening rules set out in Seaboyer would be inappropriate given the foregoing conclusion. Instead, using a case-by-case approach to determine whether s. 276 applies in proceedings involving sexual services and human trafficking offences respects Parliamentary intent and adequately guards against discriminatory lines of reasoning operating against complainants. The Court disagreed with the Crown that the C.A. engaged in impermissible propensity-based reasoning that a complainant is more likely to voluntarily engage in sex work merely because she previously voluntarily engaged in sex work; the C.A. carved out legitimate inferences on which the respondents may rely.

Criminal Law: MV Offences
R. v. Moshfeghi Zadeh, 2025 BCCA 293; 2026 SCC 35 (41996) Oct. 30, 2026

The Crown argued the trial judge not only misstated the law, but misapplied it; saying the trial judge’s reasons were wrongly fixated on whether the respondent’s dangerous driving could be characterized as a momentary lapse of attention, when a broader analysis was required. The respondent disagrees: despite a misstatement of law in her reasons, the trial judge applied the correct test in acquitting him and that it is not for the S.C.C. to second-guess the weight she chose to put on the momentary nature of the lapse relative to other factors. The S.C.C. held: the trial judge identified and applied the wrong standard for the mens rea of dangerous driving. While the Crown asked to enter convictions, there was no dissent below on the appropriate remedy and it is not possible to say on this record that the respondent should have been found guilty but for the error. The appropriate result is to order a new trial.

Criminal Law: Post-Verdict Sentencing Delay
R. v. R.B.-C., 2024 ONCA 930; 2026 SCC 30 (41677) Sept. 11, 2026

How to assess the reasonableness of delay in the period between conviction and sentencing? The more flexible standard proposed by the Crown should be adopted. Parliament has specified that sentencing must take place “as soon as practicable” after guilt is found (Criminal Code). Whether sentencing has taken markedly longer than reasonably necessary in the circumstances is based on a variety of considerations, and it remains an objective and normative assessment. Relevant considerations may include the overall duration of the delay; the complexity of the case; anything from the parties, the sentencing judge, or the court that might inform the reason for specific periods of delay; the parties’ positions and conduct; and a consideration of how long comparable cases typically take to reach a decision in light of the relevant local circumstances. Where a breach of s. 11(b) is established, the balance of rights and interests is qualitatively different in the post-verdict context as the presumption of innocence has been rebutted by proof of guilt beyond a reasonable doubt. Section 24(1) of the Charter provides a wide remedial scope and gives rise to a discretionary and contextual inquiry. The remedy that will ordinarily be appropriate for unreasonable post-verdict sentencing delay is a reduction in sentence, although in exceptional cases a stay of proceedings may be available. Sentencing proceedings vary greatly in length and complexity depending on what information a sentencing judge requires to impose a fit and proportionate sentence in the circumstances of the case. That individualized, fact‑dependent inquiry may reasonably demand more or less time, depending on the offender, the offence, and the issues engaged. Local circumstances remain relevant, but they are not a licence to normalize systemic under-resourcing, institutional inertia, or entrenched operational deficiencies. Gladue reports, for example, may be necessary to arrive at a fit and individualized sentence for Indigenous offenders; however, delay attributable to obtaining such a report must still be assessed with care.

Elections: Irregularities
Sinclair-Desgagné v. Canada (Chief Electoral Officer), 2025 QCCS 2556; 2026 SCC 31 (42076) Sept. 18, 2026

In this case, each step of the Opitz test is met. First, the postal code error, combined with Elections Canada’s failure to correct it for over three weeks before election day, was a serious administrative error and therefore an irregularity under s. 524(1)(b). Elections Canada did not receive or count an elector’s vote because it took insufficient steps to correct the error, despite knowing that it had made a mistake, and despite its expectation that affected electors would have been contacted. Elections Canada caused the error and had the ability and responsibility to correct it. Second, the irregularity affected the result of the election by improperly preventing an elector from voting. Third, judicial discretion must be exercised to annul the election because the number of affected votes (one) exactly equals the margin of victory (one), leaving doubt as to the winner of the election. This conclusion enhances public trust in the electoral process by affirming that a federal election should not be decided by known and correctable official errors. With respect to the claim that Ms. Bossé was not definitively deprived of the right to vote because she could have voted in person at an advance poll or on polling day, that is true, but beside the point. Ms. Bossé was entitled to vote as she did. That she could have voted in other ways, when she had no reason to pursue those options, is not an appropriate basis for exercising discretion not to annul the election. As a result, the election held in the electoral district of Terrebonne on April 28, 2025, must be annulled.

Sentencing: Indigenous Offenders & Victims
R. v. Cope, 2024 NSCA 59; 2026 SCC 32 (41431) Oct. 9, 2026

As the reasons herein explain, ss. 718.04, 718.2(e) and 718.201, when applied together in a case like the present, require a sentencing judge to apply three steps in their approach to sentencing. First, in evaluating the gravity of the offence and the moral blameworthiness of the offender, a sentencing judge must pay particular attention to the systemic or background factors related both to the Indigeneity of the victim and of the offender, as required by ss. 718.2(e) and 718.201. The factors identified in Gladue and Ipeelee guide the assessment of how the offender’s Indigeneity impacts their moral blameworthiness. The sentencing judge must also consider factors relevant to how the victim’s unique intersectional vulnerability as an Indigenous woman or girl impacts the proportionate sentence. Second, a sentencing judge, in identifying the relevant sentencing objectives, must give primary consideration to the objectives of denunciation and deterrence (s. 718.04), while still considering other sentencing objectives that may be engaged by the circumstances. Third, in selecting a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender that will best serve the relevant sentencing objectives, a sentencing judge must consider the types of sentencing procedures and sanctions that may be appropriate given the Indigeneity of the offender and the perspective of their community, as is required by s. 718.2(e). Where they take place, sentencing circles can provide powerful insight into each step of the analysis.

Torts: Causation; Medmal
Hemmings v. Padmore, 2024 ONCA 318; 2026 SCC 34 (41350) Oct. 23, 2026

The S.C.C. dismissed both appeals. The trial judge erred in his factual causation analysis regarding Nurse San Juan and further erred in his remoteness analysis for both Nurse San Juan and Dr. Padmore. The Ont. C.A. was correct that there is no basis to remit the actions back for a new trial on these issues, and that the actions against the Hospital and Dr. Padmore should be dismissed. Ms. Hemmings’ injuries were too remote from both Dr. Padmore’s and Nurse San Juan’s conduct to hold either liable. The Court was not persuaded that the courts below erred in holding Dr. Jamensky liable for Ms. Hemmings’ injuries. The trial judge found Dr. Jamensky’s negligence was the direct cause of Ms. Hemmings’ injuries and the reasons finding him liable were sufficient.

Leaves to Appeal Granted

Aboriginal Law: Status
Bocchini Estate v. Canada (Attorney General), 2026 ONCA 55 (42278) Oct. 22, 2026

Indian status issues.

Aboriginal Law: Title
|British Columbia v. Nuchatlaht, 2026 BCCA 137 (42379) Oct. 15, 2026

Aboriginal title to island.

Arbitration: Same-Issue Estoppel; Standard of Review
Vancouver School District No. 39 v. Kingsgate Property Ltd., et al., 2026 BCCA 98 (42350) Sept. 24, 2026

Same-issue estoppel & standard of review in arbitration context.

Civil Litigation: Covid Litigation; Emergencies Act
Canada (Attorney General), et al. v. Canadian Civil Liberties Association, et al., 2026 FCA 6 (42261) Oct. 22, 2026

Covid Emergencies Act.

Class Actions: Airlines
Davies v. Air Canada, 2025 QCCA 1344 (42161) Oct. 15, 2026

Arbitrator jurisdiction in labour law context.

Criminal Law: NCR; High Risk
R. v. R., 2025 ONCA 873 (42341) Oct. 1, 2026

High-risk accused designation in NCR context.

Criminal Law: Restraint & Management Orders
Nest Exchange Limited (formerly known as Nest Services Limited), et al. v. R., 2025 ONSC 7113 (42220) Oct. 1, 2026

A.G. applications for restraint and management orders.

Criminal Law: Sexual Assault
R. v. O., 2025 ONCA 894 (42230) Oct. 22, 2026

Sexual assault.

Environmental Law: Plastic
Responsible Plastic Use Coalition, et al. v. Canada (Attorney General), et al., 2026 FCA 17 (42277) Oct. 15, 2026

Toxic plastics ban.

Family Law: Common Law Relationships
Tanguay v. Zicat, 2025 QCCA 1255 (42126) Sept. 24, 2026

Cohabitation agreement precluding later unjust enrichment claim.

Labour Law: Arbitrator Jurisdiction
R.W. Tomlinson Limited, et al. v. Labourers’ International Union of North America, et al., 2025 ONCA 861 (42209) Oct. 15, 2026

Arbitrator jurisdiction in labour law context.

Patents: Infringement
Proslide Technology Inc. v. Whitewater West Industries, Ltd., 2026 FCA 59 (42358) Oct. 22, 2026

Alleged patent infringement.

Tax: Assessment Appeals
Estate of the late Borys Srebrnik, Kristina Rezner Srebrnik, et al. v. Agence du revenu du Québec, 2025 QCCA 1492 (42186) Oct. 15, 2026

Assessing renovation deductions and corporate payments to family members.