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 March 6 – May 22, 2025 inclusive.

Appeals

Bankruptcy & Insolvency: Student Loans
Piekut v. Canada (National Revenue), 2023 BCCA 181; 2025 SCC 13 (40782)

Section 178(2) of the BIA provides that an order of discharge releases a bankrupt from all claims provable in bankruptcy, except for claims listed in s. 178(1). Specifically, s. 178(1)(g)(ii) provides that an order of discharge does not release the bankrupt from any debt or obligation in respect of a government student loan where the date of the bankruptcy occurred “within seven years after the date on which the bankrupt ceased to be a full- or part-time student”. Section 178 also applies to consumer proposals, which provide a quicker, more efficient, and less costly alternative to bankruptcy for individuals under certain circumstances. The question raised on this appeal is: When does a bankrupt cease to be a full- or part-time student under s. 178(1)(g)(ii)? Applying the modern principle of statutory interpretation and interpreting s. 178(1)(g)(ii) based on its text, context, and purpose, the single-date approach is the correct interpretation. Critically, the single-date approach promotes the statutory purposes or policy goals of this provision: to reduce government losses on student loan defaults; to ensure the sustainability of student loan programs for future generations; and to ensure borrowers have a reasonable time after finishing their studies to capitalize on all their education to allow them to repay their student loans, thus deterring opportunistic bankruptcies. Student loan debts arise under legislation, are easily proved, and fall under s. 178(1)(g) without requiring a separate court order. Contested allegations of fraud are often complex and inherently factual and thus require a separate judicial determination. Student loan debts, by contrast, arise under legislation, are easily established, and do not raise the same problems of proof. This conclusion is confirmed by public guidance issued by the Office of the Superintendent of Bankruptcy, which states that separate court orders are not required with regard to student loan debts under s. 178(1)(g), even though they may be needed for other debts under s. 178. If it had been less than seven years since the bankrupt ceased to be a full- or part-time student at the time the bankruptcy was filed, then the student loan debt falls within paragraph 178(1)(g) of the BIA and is, therefore, an undischargeable debt that will not be released by an order of discharge. No further court order is needed with regard to these debts. Similarly, orders obtained prior to bankruptcy that conclusively bring a debt within section 178 do not require a further court order after the trustee’s discharge. For all other debts that are alleged to fall under section 178 of the BIA, a court ruling is the only conclusive way to confirm that this is the case and the onus is on the creditor to prove that its claim falls within subsection 178(1). Here, the appellant acknowledged her student loan debts and led evidence on the amounts owing in her consumer proposal and application for release. The Court therefore rejects the appellant’s argument that a student loan creditor must obtain a judicial determination regarding their claim before it can be enforced under s. 178(1)(g).

Communications Law: Transmission Lines
Telus Communications Inc. v. Federation of Canadian Municipalities, 2023 FCA 79; 2025 SCC 15 (40776)

This appeal is about the proper interpretation of the term “transmission line” in ss. 43 and 44 of the Telecommunications Act, S.C. 1993, c. 38 (“Act”), known as the “access regime”. They give telecommunications carriers a qualified right of access to construct, maintain and operate their transmission lines situated on public property. Where the carrier cannot obtain consent to access its transmission lines from the relevant public authority on terms that are acceptable to it, the CRTC is empowered to determine the applicable terms of access. The term “transmission line” only refers to wireline infrastructure. It would be inconsistent with the text, context and purpose of ss. 43 and 44 of the Act to say that Parliament intended the term to extend to antennas. Ultimately, this is not an appeal about whether wireless service is important to Canadians, nor about whether the Act broadly aspires to technological neutrality. Instead, this appeal is about the proper scope of the CRTC’s power under the Act. The CRTC was correct in concluding that it does not have jurisdiction under the access regime to adjudicate disputes over access to 5G small cell antennas situated on public property. Parliament intended to leave access to these sites up to good faith negotiation between carriers and the relevant public authorities such as municipalities. If legislative change is desirable in light of evolving policy considerations, that is the role of Parliament. Ordinary meaning is not determinative. It is also necessary to consider context and Parliament’s purposes for enacting the provision in question. The Court is not persuaded that a narrow interpretation of “transmission line” is likely to lead to an absurd consequence of impeding the Act’s overall objectives. There was evidence before the CRTC that delays in accessing public property could run up to two years. The CRTC found that municipalities or other public authorities have not “systematically” interfered with the deployment of 5G infrastructure. This factual finding is entitled to deference. The carriers have failed to establish that regulating access to the wireline and wireless equipment in a network differently would frustrate the orderly deployment of the carriers’ telecommunications infrastructure — 5G or otherwise — across Canada.

Criminal Law: Included Offences; Air of Reality Test
R. v. Pan, 2023 ONCA 362; 2025 SCC 12 (40839)

The Crown appeals from the Court of Appeal’s decision, seeking to restore the convictions for first degree murder. It argues the Court of Appeal was wrong to conclude that the lesser included offences of second degree murder and manslaughter should have been left with the jury for this count. This argument invites consideration of the air of reality test as it applies to included offences. The Supreme Court concluded that the included offences had an air of reality herein and that the jury should have been permitted to consider them. As a result, a new trial is necessary for all of the respondents on the first degree murder count. The respondents each cross-appeal, asking this Court to set aside their convictions for attempted murder and order a new trial on this count. They argue that the trial judge’s error in failing to leave the included offences with the jury tainted the attempted murder convictions in addition to the first degree murder convictions, and thus a new trial is warranted on both counts. The error affects only the first degree murder convictions and provides no basis to disturb the convictions for attempted murder. The respondents also raise various other decisions of the trial judge that they say were in error and provide a basis for ordering a new trial on both counts. Notably, they argue that the trial judge erred in permitting a slide show presentation prepared for the Crown to go with the jury to the jury room, and they invite this Court to consider the legal framework governing this use of jury aids. Applying the proper framework to this case, the Court concludes there was no reversible error in the trial judge’s approach. The other grounds of cross-appeal — that the trial judge erred in dealing with allegations of juror bias and in instructing the jury on the use of propensity evidence — provide no basis for interfering with the convictions, substantially for the reasons of the court below. A legal standard like the air of reality test does not change depending on who is arguing that the test is met; however, where it is the accused rather than the Crown arguing that the included offence should be left with the jury, the court must be cognizant that its ruling will bear on the accused’s right to control his or her own defence. The same consideration will not arise where it is the Crown arguing that the included offence should be left with the jury. The concept of an “air of reality” arises in several distinct contexts. The question, broadly, is always whether the necessary factual inferences are available on a reasonable view of the evidence. However, the approach will naturally differ depending on the types of inferences that are in issue or, in other words, on the conclusion that is said to have an air of reality. In sum, an included offence will have an air of reality if there is a reasonable view of the evidence upon which a properly instructed jury could convict on the included offence and acquit on the principal offence. The trial judge must ask not only whether the reasonable view of the evidence could allow for doubt as to the distinguishing elements of the principal offence, but also whether the same reasonable view of the evidence could allow the jury to conclude that all elements of the included offence are made out. This raises the question of whether a given view of the evidence is reasonable for this purpose. Factual inferences that reasonably arise on the evidence must be left available to the jury even where the trial judge believes that there are other more plausible inferences that could be drawn. In other words, the exercise of “limited weighing” is not comparative as between competing inferences. That form of comparative analysis is an example of substantive weighing, which is beyond the scope of the air of reality test. In conducting a limited weighing of the evidence, the trial judge is not permitted to assess credibility or reliability. The narrow exception to the rule that the evidence must be assumed to be true is that a bare assertion, without more, may be insufficient to establish an air of reality.

Elections: Third Party Advertising
Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., et al., 2023 ONCA 339; 2025 SCC 5 (40725)

The challenged spending limit restricts the amount that third parties can spend on political advertising in the year before a provincial election period (the pre-writ year). The election period begins when the writ is drawn up, one month before election day (also called the writ period). Third parties are capped at $600,000 in advertising spending for the entire pre-writ year (s 37.10.1(2)(b)). By contrast, registered political parties may spend up to $1,000,000 in advertising; this limit applies for only six months before the election period (s. 38.1). In the first six months of the pre-writ year, political parties face no limits on political advertising. The application judge relied on expert evidence suggesting that both a 6- and 12-month spending limit for third parties would promote electoral fairness, and concluded that the challenged provision did not violate s. 3 of the Charter. He determined that third parties could still advertise within the spending limit, and that expensive television advertisements did not contribute to policy debates. The application judge thus concluded that the law respected the right of voters to meaningfully participate in the electoral process through an informed vote. The S.C.C. disagreed. An examination of the extent of low-cost advertising that third parties can still engage in does not capture the broader impacts of the spending limit that, by design, creates absolute disproportionality, or a disproportionality that is so marked on its face that it allows political parties to drown out the voices of third parties on political issues from reaching citizens during an entire year of legislative activity. To interpret the scope of s. 3’s protection, the Court has emphasized free and open participation, respect for the diverse interests of a broad range of citizens, fairness in political discourse, and the importance of citizen participation in political life for public faith in laws and institutions. The purpose of s. 3 is for voters to be effectively represented in government, and to play a meaningful role in the electoral process. A legislative measure that undermines or interferes with citizens’ ability to meaningfully participate in the electoral process will infringe the right to vote; meaningful participation requires that citizens be able to vote in an informed way. The Court’s jurisprudence is clear that s. 3 does not require that all participants in the electoral system be treated equally. However, s. 3 will be infringed if spending limits allow any political actor or third party a disproportionate voice in the political discourse given their role in the electoral process, thus depriving voters of a broad range of views and perspectives on social and political issues. To summarize, the information available to voters in Ontario in the year before an election must include the interests, voices, and views of different citizens and parties. Meaningful participation in the electoral process includes an informed vote, as it is only with access to information that citizens can vote in a way that accurately reflects their preferences. To assess the relative merits of each party and candidate and their positions on the issues of the day, there must be equilibrium or proportionality in the political discourse so citizens have information on diverse points of view. When political parties face no limitations, curtailing the ability of third parties to use platforms that may be effective in reaching certain voters has the potential to overwhelm the political discourse and drown out third parties, interfering with citizens’ access to information letting them weigh and establish their views during an important time in the democratic cycle. On its face, the Act here creates an absolute disproportionality in the availability of information to citizens over a key period, thus impeding their ability to form meaningful preferences, violating s. 3 of the Charter. Given this conclusion, it is unnecessary to address whether the anti-collusion and extensive reporting provisions, or the sheer length of the restrictions on their own, also violate the right to vote. Nor is it necessary to assess whether the limit complies with the expressive component of s. 3. The Court added: it may be that in a different case, evidence could assist the court in determining whether spending limits permit an actor to exert undue influence on the political discourse.

Prison Law: Inmate Disciplinary Proceedings; New Issues On Appeal
John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2022 SKCA 144; 2025 SCC 6 (40608)

The Court agrees that Shubley’s application of Wigglesworth’s true penal consequence test rests on eroded legal foundations. Shubley’s conclusion that disciplinary segregation and loss of earned remission do not engage s. 11 because they do not amount to imprisonment has been attenuated by this Court’s consistent direction that judges must interpret the Charter in a generous, rather than a formalistic, manner that gives effect to the purpose of the right in question. When an inmate faces the risk of disciplinary segregation or loss of earned remission, they face the possibility of additional imprisonment — a true penal consequence. Section 11 therefore applies to Saskatchewan’s inmate disciplinary proceedings involving the adjudication of a “major disciplinary offence”. Moreover, even if the Court had concluded that s. 11 does not apply, the Court is satisfied that s. 68 of the Regulation also infringes s. 7 of the Charter. These infringements cannot be saved by s. 1 of the Charter. JHS acknowledges the question of whether s. 68 of the Regulations infringes s. 11(d) is a new constitutional issue raised on appeal. In Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, the Court reiterated that it can exercise its discretion “to consider a new issue of law on the appeal where it is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice” (para. 22, quoting Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33). The burden is on JHS to persuade this Court to exercise its discretion to consider the new issue in light of all of the circumstances (Guindon, para. 23). Because JHS raises a new constitutional question, “[t]he Court must be sure that no attorney general has been denied the opportunity to address [it]” (ibid.). Consideration of a new issue on appeal is exceptional, and thus this Court’s discretion to hear such an issue should not be exercised routinely or lightly. This is one of the exceptional cases where it is appropriate for this Court to exercise its discretion to consider the new issue. We leave for another day the issue of whether s. 11 of the Charter is engaged if an inmate in Saskatchewan commits a minor disciplinary offence.

Oral Judgments

Criminal Law: Evidence Admission
R. v. Chizanga, 2024 ONCA 545; 2025 SCC 9 (41405), (41370) Judgment rendered March 24, 2025.

Rowe J.: “These are appeals as of right from the Court of Appeal for Ontario. The appellants were convicted by a jury of second degree murder. They appealed their convictions. Justices Sossin and Monahan, for the majority, dismissed the appeals and affirmed the convictions. Madam Justice van Rensburg was dissenting. She would have ordered new trials. Before this Court, as before the Court of Appeal, the appellants submit that the trial judge erred by admitting, as prior discreditable conduct evidence, a surveillance video of the appellants at a motel with a firearm. The appellants further submit that the trial judge erred in his instructions to the jury as to the proper use of this evidence. A majority of this Court would dismiss the appeals, substantially for the reasons of the majority of the Court of Appeal. Justice Moreau and I would have allowed the appeals, substantially for the reasons of Madam Justice van Rensburg. Accordingly, the appeals are dismissed and the convictions of the appellants are affirmed.”

Criminal Law: Firearms
R. v. Donawa, 2024 ONCA 279; 2025 SCC 10 (41287) Judgment rendered March 26, 2025.

Martin J.: “The only issue on this appeal as of right is whether the handgun found by the police in the appellant’s car was a firearm as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46. We are unanimously of the view it was a firearm. We substantially agree with the decision of the Ontario Court of Appeal. Accordingly, we would dismiss the appeal.”

Criminal Law: Homicide
R. v. Underwood, 2024 ABCA 267; 2025 SCC 14 (41434) Judgment rendered April 17, 2025.

Karakatsanis J.: “The appellant, Buddy Ray Underwood, was charged with the robbery, kidnapping, and first degree murder of Nature Duperron. A group of five individuals, including the appellant, confined her for several hours during which time she was injected with fentanyl and transported from Edmonton to a remote location near Hinton, where she was beaten and left to die. The trial judge, sitting alone, convicted the appellant as a party to the robbery, kidnapping and second degree murder of Ms. Duperron. The trial judge concluded that the Crown had not established that this was a planned and deliberate murder under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46. While the trial judge was satisfied that the appellant was a party to the kidnapping of Ms. Duperron, he concluded that the Crown had not met its burden of establishing all elements of the offence of constructive first degree murder beyond a reasonable doubt under s. 231(5) of the Criminal Code. The Crown appealed the acquittal on the charge of first degree murder, arguing that the trial judge erred in law in his assessment of planning and deliberation and misapplied the legal test for constructive first degree murder. The Court of Appeal of Alberta allowed the Crown appeal, quashed the acquittal and substituted a conviction for first degree murder under both s. 231(2) and s. 231(5) of the Criminal Code. The appellant appeals the first degree murder conviction as of right. We are all of the view that the appeal should be dismissed, substantially for the reasons of the Court of Appeal at paras. 61 to 81. The trial judge erred with respect to the legal test for a planned and deliberate murder. But for this error of law, the trial judge’s findings of fact, which we accept as they were found, would have led him to convict the appellant of first degree murder under s. 231(2). As this is sufficient to dispose of the appeal, we need not consider whether the Court of Appeal erred in substituting a conviction for constructive first degree murder under s. 231(5) of the Criminal Code.”

Criminal Law: Sexual Assault
R. v. P.B., 2024 SKCA 77; 2025 SCC 8 (41422) Judgment rendered March 21, 2025.

Rowe J.: “The accused appeals as of right a decision by the Saskatchewan Court of Appeal relating to his conviction for sexual assault. Justice Kalmakoff, for the majority, dismissed the appeal and affirmed the conviction. Justice Barrington-Foote, dissenting, would have ordered a new trial. Before this Court, as before the Court of Appeal, counsel for the accused submitted that the trial judge erred by failing to provide sufficient reasons for the verdict, and erred in law in assessing the complainant’s evidence. We would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal.”

Criminal Law: Sexual Assault
R. v. R.A., 2024 BCCA 283; 2025 SCC 7 (41421) Judgment rendered March 20, 2025.

The Chief Justice: “This appeal comes to us as of right from the Court of Appeal for British Columbia. The issue before us is whether the Court of Appeal erred in setting aside the appellant’s acquittal on the charge of indecent assault and entering a conviction. The appellant argues that the Court of Appeal wrongly concluded that the trial judge erred in holding that the appellant’s conduct did not constitute an assault. We are all of the opinion that the appeal should be dismissed, substantially for the reasons found at paras. 17 to 43 of the Court of Appeal’s decision. In our view, when an adult intentionally precipitates sexual contact with a child, it satisfies the elements of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (formerly ss. 149 and 244 of the Criminal Code, R.S.C. 1970, c. C-34): see R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 52. Contrary to the appellant’s assertion, the element of force can be satisfied in the circumstances of this case where the child complainant physically initiates the touching of the accused: see R. v. Tyler, 2015 ONCA 599, at para. 10; R. v. K.D.M., 2017 ONCA 510, at para. 36. Such an interpretation gives effect to the broad, encompassing language of the provision and its purpose of safeguarding the bodily and sexual integrity of children: see also R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 154. The trial judge, therefore erred in relying on the reasoning of Fairclough v. Whipp, [1951] 2 All E.R. 834 (K.B.D.), to hold that the appellant’s actions, which are not in dispute, did not constitute an assault. Fairclough is not authoritative in Canada. The appellant committed an assault when he intentionally had sexual contact with the child complainant. It did not matter that the child complainant physically initiated the contact following the appellant’s invitation. Accordingly, the appeal is dismissed and the conviction is affirmed.”

Criminal Law: Sexual Assault; Honest But Mistaken Belief
R. v. Kwon, 2024 SKCA 50; 2025 SCC 11 (41322) Judgment rendered March 27, 2025.

Moreau J.: “This is an appeal as of right from the Court of Appeal for Saskatchewan. The respondent was found guilty of sexual assault. He appealed his conviction. The Court of Appeal was unanimous that the trial judge made reviewable errors in her treatment of the respondent’s evidence and in her analysis of his defence of honest but mistaken belief in consent. Justices Barrington-Foote and Drennan, for the majority, found that the verdict was unreasonable and entered an acquittal. Justice Tholl, dissenting, would have quashed the conviction and ordered a new trial. Before this Court, the Crown submits that the majority erred by finding that the verdict was unreasonable. A majority of this Court would allow the appeal, substantially for the reasons of Justice Tholl. Justice Rowe would have dismissed the appeal, substantially for the reasons of the majority in the Court of Appeal. Accordingly, the appeal is allowed and a new trial is ordered.”

Leaves to Appeal Granted

Aboriginal Law: Overlapping Title Claims
Nisga’a Nation v. Malii, et al., 2024 BCCA 313 (41516)

Overlapping claims re title in aboriginal law context.

Aboriginal Law: Overlapping Title Claims
Skii km Lax Ha, et al. v. Malii, et al., 2024 BCCA 406 (41644)

Overlapping claims re title in aboriginal law context.

Administrative Law: Standing; Privative Clauses
Democracy Watch v. Canada (Attorney General), 2024 FCA 158 (41576)

Standing and privative clauses in administrative law context.

Civil Litigation: Evidence Destruction
SS&C Technologies Canada Corporation v. Bank of New York Mellon Corporation, 2024 ONCA 675 (41543)

Evidence destruction re breach of contract.

Class Actions: Settlement Approvals & Retainer Revocations
Québec Major Junior Hockey League, now doing business as Quebec Maritimes Junior Hockey Leagues Inc., et al. v. Walter, et al., 2024 QCCA 1310 (41532)

Issues of revocation of lawyer retainer & settlements.

Constitutional Law: Racial Profiling
Québec (Attorney General) v. Luamba, et al., 2024 QCCA 1387 (41605)

Police racial profiling.

Criminal Law: Mandatory Minimums
Denis v. R., et al., 2024 QCCA 647 (41401)

Constitutionality of mandatory minimums.

Criminal Law: Post-verdict Delay
R.B.-C. v. R., 2024 ONCA 930 (41677)

Post-verdict delay issues.

Criminal Law: Sentencing; Indigenous
R. v. Cope, 2024 NSCA 59 (41431)

Differential sentencing for indigenous; Sentencing Circles.

Criminal Law: Sexual Offences
R. v. A. M., et al., 2024 ONCA 661 (41528)

Issues re sexual offences.

Professions: Lawyer Disqualification
Bergeron v. Assemblée parlementaire des étudiants du Québec inc., et al., 2024 QCCA 1264 (41566)

Issues re lawyer father acting for son.

Tax: Loss Carrybacks
Bank of Nova Scotia v. R., 2024 FCA 192 (41643)

Tax carrybacks.

Torts: Medmal
Hemmings, et al. v. Padmore, et al., 2024 ONCA 318 (41350)

Liability issues in medmal trial re C-section.