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 23 – December 27, 2024 inclusive.
Appeals
Aboriginal Law: Police Services; Good Faith; Honour of the Crown
Québec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2023 FC 267; 2024 SCC 39 (40619)
Although the two main grounds relied upon — good faith and the honour of the Crown — are both principles of public order that may not be derogated from by contract, they cannot be conflated because of the distinct bases, in private law and public law, respectively, on which they rest. Firstly, Québec’s intransigent behaviour despite the precarious situation of its counterparty constituted an abuse of right having regard to its right to seek the renewal of the agreement, notably through the extension clause. Québec’s actions give rise to civil liability under the ordinary rules of contract set out in Book Five of the Civil Code. Secondly, the honour of the Crown is a public law principle originating in the special relationship with Indigenous peoples and that it applies to the performance of Québec’s contractual undertakings in this case. While art. 1376 C.C.Q. provides that the private law of obligations applies to the State, it also specifies that this is “subject to any other rules of law which may be applicable to [it]”. In the circumstances of this case, Québec and Canada, as contracting parties, have an obligation to act with honour and integrity toward Pekuakamiulnuatsh Takuhikan in the performance of the tripartite agreements. Québec’s obstinate refusal to genuinely renegotiate the contract’s funding terms is not only a breach of the requirements of good faith but also a breach of the obligation to act in a manner consistent with the honour of the Crown, a principle of public law based on a higher standard than the one relating to the obligation of good faith under private law. These are two distinct bases. The breach of an obligation flowing from the honour of the Crown alone, independently of the breach of the requirements of good faith, justifies holding Québec liable. In the end, the flexibility inherent in the assessment of damages in this public law context is both relied on and upheld. The grounds to find a breach by Québec and to uphold the award made against it by the Court of Appeal suffice, and to provide the parties with guidance for the future.
Constitutional Law/Class Actions: Division of Powers/Extraterritoriality; National Class Actions
Sanis Health Inc. v. British Columbia, 2023 BCCA 306; 2024 SCC 40 (40864)
The ultimate question raised in this appeal is this: can multiple Canadian governments join in a single class action, in one province, before one province’s superior court, without unconstitutionally sacrificing their autonomy or sovereignty? The answer is yes. The appellants’ position that the legislation deals with substantive, rather than procedural, rights is not accepted. The purpose and effect of the challenged provision is to create a procedural mechanism to promote litigation efficiency by joining the claims of consenting Canadian Crowns into a single proceeding, while ensuring that each Crown’s claims will be decided in accordance with their own substantive law. Section 11 of the Act falls within the Province’s authority over the “Administration of Justice” under s. 92(14) of the Constitution Act, 1867. Section 11 also properly respects the territorial limits under s. 92(14), which requires that the Province’s legislative powers be exercised “in the Province”. In multi-Crown class actions, this choice means that the government of the day may bind its successors to the choice of ceding some of its litigation rights. Does this force an unconstitutional sacrifice of substantive rights on foreign Crowns? No. In sum, the purpose and effect of s. 11 deal with the promotion of litigation efficiency by joining the claims of consenting Crowns into the single proceeding already before the courts of B.C., so their individual claims can benefit from the efficiency and consistency that class actions and the Act provide.
Criminal Law: Vetrovec Warnings
R. v. Stevenson, 2024 SKCA 40; 2024 SCC 41 (41269) Judgment Nov. 8, 2024; Reasons Dec. 5, 24
The accused here was convicted at trial of robbery and having his face masked with the intent to commit an indictable offence. The robbery was recorded on a security camera video and revealed two participants, both of whom had their faces fully masked. The Crown’s case hinged on the recognition evidence of a former gang associate of the accused, who identified him as a participant in the robbery. The trial judge found evidence to be both credible and reliable and found the accused guilty. The Court of Appeal dismissed the appeal from conviction. The sole issue at trial was the appellant’s identity. The trial judge understood and correctly applied the relevant legal principles bearing on reliability. Her factual determinations on reliability were entitled to deference.
Criminal Law: Search and Seizure; Reasonable Expectation of Privacy
Campbell v. R., 2022 ONCA 666; 2024 SCC 42 (40465)
Police lawfully seized a cellphone during a search incident to the arrest of a known drug dealer. A few minutes after the arrest, four text messages were received, appearing to offer to sell drugs. Over the next 2 hours and 15 minutes, the police, without a warrant, replied to the texts by impersonating the dealer and encouraged the sender to come to the dealer’s home for delivery. When the accused came that evening, he was arrested and found in possession of heroin laced with fentanyl and was charged with drug trafficking and possession offences. The accused claimed that he did not send the first four texts and that someone had given him the phone to arrange the delivery of the drugs. However, the accused did acknowledge that he sent and received the later texts about the drug delivery. The S.C.C. agreed with the Court of Appeal that there was a reasonable expectation of privacy in his text message conversation. The police conducted a “search” of that conversation and hence there was standing to challenge the search under s. 8 of the Charter. Nevertheless, the search was not an “interception” of electronic communications under Part VI of the Criminal Code, nor was it incidental to the lawful arrest. Even so, the warrantless search of Mr. Campbell’s text message conversation was justified by exigent circumstances under s. 11(7) of the CDSA.
Family Law: Children at Risk
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A., 2022 QCCA 1653; 2024 SCC 43 (40602)
The power of the Court of Québec Youth Division (“tribunal”) to intervene derives from s. 91 para. 4 of the Youth Protection Act, which states where “the tribunal concludes the rights of a child in difficulty have been wronged by persons, bodies or institutions, it may order the situation to be corrected”. The legislature intended to confer on the tribunal the corrective powers needed to ensure the fullest protection of the interests and rights of the child before it. In practical terms, this means the tribunal may order corrective measures whose purpose is (1) to put an end to the situation of encroachment where it is still encroaching upon the child’s rights; (2) to remedy the psychological or physical consequences for the child resulting from the encroachment upon rights; and (3) to prevent the recurrence of the situation of encroachment for the child. It is not necessary for corrective measures to specifically mention the child’s name in order for the measures to be related to the protection of the child’s interests and rights. Moreover, depending on the circumstances and the evidence adduced, it is possible for a broad corrective measure — that corrects, for example, an institutional factor at the source of the situation of encroachment — to be a measure related to the protection of the child’s interests and rights. Such corrective measures will generally have the advantage of protecting the interests and rights of many other children in an indirect and incidental manner. The tribunal can deal with the situation of only one child at a time. Moreover, there is nothing to suggest that the legislature intended to authorize the tribunal to order corrective measures that would apply to children whose situations have not been referred to it but who may find themselves in the same situation of encroachment as the child before it. The tribunal may order corrective measures with the following purposes: (1) to put an end to the situation of encroachment where it is still encroaching upon the child’s rights; (2) to remedy the psychological or physical consequences for the child resulting from the encroachment upon rights; and (3) to prevent the recurrence of the situation of encroachment for the child. The tribunal can thus order a wide range of corrective measures so as to render justice in a flexible and creative manner in each case. The magnitude of the budgetary impact of the corrective measure is not in itself a criterion for the validity of the order.
Leaves to Appeal Granted
Constitutional Law: Public Interest Standing
Alford v. Canada (Attorney General), 2024 ONCA 306 (41336)
Constitutionality re parliamentary immunity exclusion.
Criminal Law: Attempted Murder; Jury Instructions
R., et al. v. B.F., et al., 2024 ONCA 511 (41420)
There is a publication ban in this case, in the context of attempted murder of a child by administration of a noxious substance.
Criminal Law: Delay
R. v. Jacques-Taylor, 2024 ONCA 458 (41430)
Delay issues in criminal multiple accused trial.
Real Property: Adjacent Submerged Lots
Zardev Inc. v. Dydzak, et al., 2024 QCCA 347 (41291)
Ownership and related issues re adjacent submerged lots.
Real Property: Foreclosure
Patrick Street Holdings Limited v. 11368 NL Inc., 2024 NLCA 11 (41296)
Trust issues in a foreclosure context.
The post Summaries Sunday: Supreme Advocacy appeared first on Slaw.