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 August 28 – November 12, 2025 inclusive.

Appeals

Criminal Law: Arrest
R. v. Wilson, 2023 SKCA 106; 2025 SCC 32 (40990)

The Crown says Parliament deliberately omitted an explicit immunity from arrest from the text of s. 4.1(2) of the Controlled Drugs and Substances Act (“CDSA”), as the police require the power to arrest so that they can search for and seize illegal drugs and prevent the commission of other crimes at the scene of an overdose. The accused responds that immunity from arrest for simple possession of a controlled substance is necessarily implied by the immunity from charge and conviction. Permitting the arrest of people in such circumstances would undermine both the purpose of s. 4.1(2) and the well-established principle that arrest is not available solely for investigative purposes. The Crown’s appeal is dismissed. The immunity from charge and conviction for simple possession explicitly mentioned in s. 4.1(2) of the CDSA includes, by necessary implication, immunity from arrest for that offence. An interpretation of s. 4.1(2) which allows arrests for possession, and intrusive searches incident to those arrests, would maintain a strong disincentive to seek emergency assistance in life-threatening overdose situations. Parliament did not intend this result. Further, while the word “arrest” is not included in the text of s. 4.1(2), an immunity from charge and conviction would be commonly — and legally — understood to include immunity from arrest for that charge. Finally, an interpretation of s. 4.1(2) that provides immunity not only from charge and conviction, but also from arrest on that charge, reflects the fact that our law has never permitted arrest purely for the purposes of investigation and tightly circumscribes the power to arrest and the power to search incidentally to arrest.

Criminal Law: Mandatory Minimums
Quebec (Attorney General) v. Senneville, 2020 QCCA 918; 2025 SCC 33 (40882)

The minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) violate the protection against cruel and unusual punishment guaranteed by s. 12 of the Charter. While the teachings of R. v. Friesen, [2020] 1 S.C.R. 424, are fully applicable to child sexual exploitation and abuse material offences, which often warrant the imposition of severe penalties, it must be recognized that these offences can be committed in different ways, under different circumstances and by different offenders. A mandatory minimum sentence does not necessarily violate s. 12 of the Charter (R. v. Hills, 2023 SCC 2, at para. 38; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1077). However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances, the sentence is “constitutionally vulnerable” (R. v. Lloyd, [2016] 1 S.C.R. 130, at para. 3; R. v. Hilbach, 2023 SCC 3, at para. 52) because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders.

Criminal Law: Memory re Capacity and Consent
R. v. Rioux, 2024 QCCA 657; 2025 SCC 34 (41362)

The S.C.C. agreed with the majority of the Qué. C.A. that there were errors of law of sufficient gravity to set aside the acquittal and order a new trial. A trial judge must assess and weigh all admissible and relevant evidence to determine whether the complainant consented or had the capacity to consent to the sexual activity in question. In addition, though the S.C.C. need not decide the point, if the trial judge relied on the testimony of the appellant as direct evidence of a complainant’s state of mind, it would have been an error to do so. This is so even where the complainant does not have full memory of the sexual activity in question. The trial judge misapprehended and misapplied the law of evidence in the actus reus stage by requiring direct evidence from the complainant when the alleged assault occurred. Another error when he then also failed to consider the complainant’s circumstantial evidence when addressing her subjective consent and when determining the appellant’s guilt or innocence. His legal conclusions on these matters should have been based on the totality of the relevant, admissible, credible and reliable evidence over the full time, including the complainant’s evidence about her state of mind and physical state before, during and after any sexual activity that took place, as well as any other relevant temporally connected circumstantial evidence. These errors lead to an impermissibly siloed approach to the evidence. Under the correct legal principles, the trial judge ought to have considered a much wider range of relevant evidence, some of which conflicted with the appellant’s testimony. His partial assessment of the relevant evidence calls into such serious question the soundness of his findings on credibility that the normal deference attached to such determinations is not warranted. Further, the trial judge needed to reconcile the contradictory evidence of the complainant and appellant about whether he drugged her. While the exact cause of her physical and mental state was not a prerequisite to finding that she lacked capacity to consent, a finding on this disputed fact was crucial to whether the court could legitimately accept the appellant’s assertion that he had an honest but reasonable belief in her communicated consent. Finally, the trial judge would have erred if he used the appellant’s perceptions of the complainant’s state of mind as direct evidence probative of her subjective consent.

Criminal Law: Sentencing; Considerations re Potential Separate Charge
R. v. Di Paola, 2023 QCCA 750; 2025 SCC 31 (40777)

Section 725(1)(c) has robust procedural safeguards attached to it, and its application relies upon the court’s exercise of its discretion. In addition, in the context of the adversarial process, Crown counsel are subject to duties of fairness that include the duty to act in good faith and to avoid any sharp practice. These protections limit the risk that the application of this provision will result in unfairness or prejudice to the offender. The context of s. 725(1)(c) weighs in favour of the inclusion of any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, regardless of whether such a charge has already been laid. In light of the principles of sentencing, there is no principled reason for excluding relevant facts from the scope of s. 725(1)(c) solely because a charge based on those facts was already laid and then withdrawn. Those facts do not lose their relevance as aggravating factors for the purposes of s. 725(1)(c), and their consideration is subject to certain procedural safeguards. Whether they have constituted the basis for a separate charge or not, those facts fall within s. 725’s purpose of enabling the court to assess all the circumstances of both the offence and the offender in order to impose a fit and appropriate sentence. In short, the only interpretation consistent with the text, context and purpose of s. 725(1)(c) is the one advanced by the appellant. Section 725(1)(c) gives the court the discretion to consider, as aggravating factors, any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, regardless of whether such a charge has been laid. This provision is applicable both following a trial and in the context of a guilty plea, to the extent that the charge remains possible at the time of sentencing.

Criminal Law: Sexual Offences; Sentencing; Appellate Review Standard
R. v. Sheppard, 2023 ABCA 381; 2025 SCC 29

Reviewing reasons functionally means assessing whether they are sufficient not in the abstract, but in relation to the fundamental purposes that reasons serve. Those purposes are to hold judges accountable to the public, to provide an intelligible result to the parties, and to enable effective appellate review. Under a contextual approach, “[t]he foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded” (R.E.M., at para. 17). As the S.C.C. explained in R. v. Parranto, [2021] 3 S.C.R. 366, “[i]n sentencing, as with any decision, the reasons must, when read in conjunction with the record, show why the judge reached a particular result” (para. 39; see generally R.E.M., at para. 37). Sentencing reasons must also be read and understood in conjunction with the reasons for conviction or, in the case of a jury trial, the verdict and the essential facts it implies. On this approach, an appellate court may intervene only if the reasons are legally or factually insufficient or if they are so muddled that meaningful appellate review is impossible. Legal sufficiency requires that the aggrieved party be able to understand the legal basis of the decision in order to meaningfully exercise any right of appeal. Factual sufficiency requires that the factual basis for the decision be discernible, even if articulated unartfully. The functional and contextual approach rejects a fine parsing of reasons in search of error. In G.F., Karakatsanis J. expressed concern that some appellate courts continue to parse reasons, often in a manner that attacks the trial judge’s credibility findings. Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Generally speaking, the usefulness of a historical decision will depend on its factual comparability to the case at hand, as well as on the degree to which relevant legal principles, societal attitudes, and legislative provisions have evolved since the decision was rendered. For example, it is safe to assume that historical jurisprudence will not be useful, at least not on its face, when considering offences that are now viewed through a markedly different lens. To reiterate, sentencing judges are entitled to consider historical precedents, though only insofar as they align with contemporary sentencing principles. This should not be taken to suggest that sentencing judges are required to consider such precedents or that declining to do so is an error in principle.

Debtor-Creditor in Québec: Extinctive Prescription
Mohawk Council of Kanesatake v. Sylvestre, 2023 QCCA 1603; 2025 SCC 30 (41131)

In Québec civil law, the right to the payment of money under a judgment is prescribed where the creditor fails to exercise the right in a timely manner. The period for “extinctive prescription” of rights resulting from most judgments is set at 10 years by art. 2924 of the Civil Code of Québec (“C.C.Q.”). If the creditor takes appropriate measures to execute the judgment in keeping with the Code of Civil Procedure, prescription is interrupted and the 10-year clock starts again. As a general rule, the filing and service of proceedings initiated by a creditor to seize their debtor’s property in execution of a judgment interrupts prescription pursuant to art. 2892 C.C.Q. Not surprisingly, where a judicial application is dismissed, the law deems that, retroactively, prescription was never interrupted. Article 2894 C.C.Q. sets this latter rule. The notice of execution is not a distinct procedural act but is part and parcel of the seizure as a “judicial application” that interrupts prescription pursuant to art. 2892 C.C.Q. The legislature intends to allow for interruption when the simplified notice of execution that begins the seizure is filed in court and served on the debtor. In this case, the respondents filed their notice of execution commencing the seizure of the Council’s movable property before the end of the prescription period, thereby showing the requisite diligence to make good on their claim. Serving the notice of execution on the debtor fairly informed the appellant of the respondents’ intention to seize its movable property. When proceedings were introduced by the notice as part of the judicial application for seizure in 2016, prescription was interrupted under art. 2892 C.C.Q. The seizure was later suspended by a bailiff but not dismissed by a court, so it cannot be said that the interruption of prescription was retroactively deemed to have never occurred pursuant to art. 2894 C.C.Q. In its judgment granting leave in this case, the Court asked the parties to provide submissions addressing the applicability of s. 89 of the Indian Act and whether the movable property of the applicant is “situated on a reserve”. The circumstances of this case do not allow for a useful treatment of this question. It is unnecessary to consider the full application of s. 89 of the Indian Act to dispose of the appeal. The parties rightly suggest that addressing s. 89 without a proper factual record or meaningful guidance from the courts below would be unwise.

Municipal Law/Property: Adverse Possession
Kosicki v. Toronto (City), 2023 ONCA 450; 2025 SCC 28 (40908)

Ontario’s Real Property Limitations Act (RPLA), which extinguishes both the title and the right of the paper title holder to recover the land 10 years after dispossession, governs this dispute. The legislature has exempted certain public lands from the application of the RPLA for over a century. New exceptions for additional categories of public land have been enacted in related statutes since the last amendments to the RPLA. Although these new exceptions grant explicit protection to provincial parkland, they do not mention municipal parkland. Moreover, despite prospectively abolishing the possibility of acquiring possessory title for land registered under the Land Titles Act, the legislature has preserved matured possessory claims. The preservation of acquired possessory title is also consistent with the RPLA’s purpose as a statute of repose. In this statutory context, to recognize a new common law exception in addition to the exceptions the legislature has set out in s. 16, which would serve to retroactively deprive a claimant of acquired possessory title, would defeat the legislature’s intent. Under the applicable statutory rules, the City’s title to the land herein was extinguished over four decades ago. To accept the City’s argument would be to interfere with the appellants’ matured possessory claim and disregard the applicable statutory scheme.

Leaves to Appeal Granted

Aboriginal Law: Third Party Claims
Skii km Lax Ha, et al. v. Malii, et al., 2024 BCCA 406 (41644) Oct. 9, 25

Third party claims in aboriginal context.

Airports: Official Languages
St. John’s International Airport Authority v. Thibodeau, 2024 FCA 197 (41651) Aug. 28, 25

Official languages at airports.

Civil Litigation: Anti-SLAPP
Prescott, et al. v. Benchwood Builders Inc, et al., 2025 ONCA 171 (41794) Oct. 23, 25

Anti-SLAPP issues.

Constitutional Law: Names/Pronouns; Notwithstanding Clause
Government of Saskatchewan as represented by the Minister of Education v. UR Pride Centre for Sexuality and Gender Diversity, 2025 SKCA 74 (41979) Nov. 6, 2025

Constitutionality of legislation re names/pronouns; and use of notwithstanding clause.

Criminal Law: Firearms; Sentencing
R. v. Burke-Whittaker, 2025 ONCA 142 (41786) Oct. 23, 25

Sentencing issues re firearm offence.

Criminal Law: Search
R. v. Chemlal, 2025 QCCA 302 (41766) Oct. 7, 25

Search after driving offence and after arrest.

Municipal Law: Assessment Roll Classifications
Ville de Québec v. Jardins de Vérone s.e.c., 2025 QCCA 123 (41748) Oct. 16, 25

Issues re municipal assessment rolls.