The Supreme Court of Canada will mull these questions and more as it hears arguments in a busy winter session from Jan. 13, 2025 to March 28, 2025, which features 22 appeals — including 16 criminal cases (11 as-of-right).
Many eyes in the family law bar will turn to an Ontario case which asks: Should the common law recognize a novel tort of family violence?
The question has sparked conflicting answers from courts in Ontario and British Columbia.
To be heard by the court over two days, Feb. 11 and 12, 2025, the appeal has also attracted 17 interveners, including women’s shelters and survivors’ groups which support the tort’s creation. “A family violence tort. . . could lead to higher compensation for survivors, better encourage them to seek compensation in the first place and ultimately help deter family violence,” asserts the intervener, Women’s Legal Education and Action Fund (LEAF).
Geoffrey Carpenter, Carpenter Family Law
“Intimate partner violence is an epidemic, and attempting to address it through expansion of the common law risks significant unintended consequences,” Carpenter told Law360 Canada. “While the proposed tort is to address family violence, the case is focused on when novel torts should be created and the role of courts and the legislature in developing the law.”
The appellant ex-wife challenges the Ontario Court of Appeal’s elimination of a $50,000 punitive damages award from the total $150,000 in damages she won under the rubric of the tort of family violence: Ahluwalia v. Ahluwalia, 2023 ONCA 476.
The appellant sought a divorce, child and spousal support, and damages, following the breakup of a 16-year marriage that the trial judge found was marked by a pattern physical and emotional abuse and financial control: Ahluwalia v. Ahluwalia, 2022 ONSC 1303.
Ontario Superior Court Justice Renu Mandhane held that the Divorce Act isn’t a complete statutory scheme for addressing all the legal issues that can arise in a marriage marred by violence. Existing torts do not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness,” she explained.
Justice Mandhane ruled that it was necessary for the common law to recognize a new tort of family violence to enable redress for the cumulative pattern of harm that can arise from domestic physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or the killing or harming of an animal or property.
(The test for the creation of a new tort requires that, at minimum, the tort must reflect a wrong; it must be necessary to address that wrong (i.e. there are inadequate alternative remedies); and it must be an appropriate subject of judicial consideration (i.e. it would not impose indeterminate or substantial impacts on the legal system.)
Co-counsel for the wife were not immediately available for comment.
In allowing the husband’s appeal below, in part, the Ontario Court of Appeal wiped out the punitive damages, stating that the remaining $100,000 in compensatory and aggravated damages “was sufficient to accomplish the objectives of condemnation.”
Moreover, it was unnecessary to recognize a new tort of family violence or of coercive control (the latter proposed by the wife) since existing torts address the specific harms alleged, Justices Mary Lou Benotto, Garry Trotter and Benjamin Zarnett held.
Recognizing either tort would be significant legal change best left to the legislature, the panel reasoned.
“The trial judge’s concern that ‘long-term, harmful patterns of conduct that are designed to control or terrorize’ are not captured by existing torts is misplaced,” Justice Benotto explained, noting that the trial judge found that the husband had subjected the wife to years of physical, psychological, emotional and financial abuse, constituting behaviour calculated by the husband to be coercive and controlling.
“These facts fall squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress,” Justice Benotto said. “The existing torts are flexible enough to address the fact that abuse has many forms,” including “recurring and ongoing abuse, intimidation, domination and financial abuse [that] can be patterned into daily life.”
Another potentially groundbreaking appeal, to be argued before the top court March 25, 2025, will examine the interplay between solicitor-client privilege (including its exception when an accused’s innocence is at stake) and an accused lawyer’s Charter rights to a fair trial and to make full answer and defense.
The case arose after a 6-minutes and 40-second telephone call Regina defence counsel Sharon Fox made to her client, A.Y., in 2019, whose phone, unbeknownst to them, was wiretapped as part of a drug trafficking investigation in the area.
Based on what was said in the phone call, which police recorded, and listened to in part, Fox was charged with willfully attempting to obstruct, pervert or defeat the course of justice by interfering in an ongoing police investigation, contrary to s.139(2) of the Criminal Code.
In 2024, a majority of the Saskatchewan Court of Appeal upheld Fox’s 2022 acquittal at trial.
Fox phoned A.Y. five minutes after she spoke by phone with one of his associates, K.G, a woman who had just been arrested for drug trafficking and who was exercising her right to call a lawyer. In the first portion of Fox’s police-recorded call to A.Y., Fox told her client of K.G.’s arrest and informed him that K.G. had been under police surveillance. “So I suspect, based on their surveillance of her, they will be, if they haven’t already, they will be drafting a search warrant for wherever places she’s been frequenting,” Fox told A.Y.. “Do you understand?”
Fox testified at trial that K.G. had asked her to let A.Y. know that K.G. had been arrested. The lawyer testified she believed she was professionally and ethically bound to convey that information to her client, A.Y.
However, the provincial Crown contended Fox’s words in the first part of the recorded conversation were an attempt to warn A.Y. that the police might be conducting searches in relation to him in order to look for evidence of criminal conduct. The Crown alleged this amounted to counselling A.Y. to remove or destroy potential evidence in a criminal proceeding.
As part of their drug trafficking investigation in Estevan, Sask., police had obtained judicial authorization to intercept the private communications of several people, including A.Y. and K.G..
Fox’s phone call was initially live monitored by police for 20 seconds until they realized she was a lawyer. The whole call was also automatically recorded, but all access to the recording was locked immediately on the basis of privilege. However, a reviewing judge concluded that the initial 2 minutes and 25 seconds of the call — including Fox’s impugned words — were not subject to solicitor-client privilege. That portion of the recording was released to the Crown — culminating in the criminal charge against Fox — but the judge held that the remaining 4 minutes and 15 seconds of the recorded conversation were subject to privilege.
In a voir dire, the trial judge rejected Fox’s argument that her s. 8 Charter right to be free from unreasonable search and seizure was breached when a civilian employee listened to part of her phone conversation with A.Y. for nearly four minutes, accepting that the employee remembered nothing of the call and her actions were “mere inadvertence.”
However, the trial judge did agree that Fox’s Charter ss. 7 and 11(d) rights to full answer and defence and a fair trial were breached because solicitor-client privilege prevented the accused from accessing the second privileged portion of the recording to help her to explain the content of the first part of the call. The trial judge ordered the whole recording excluded from evidence and the Crown called no evidence — collapsing the prosecution. R. v. Fox, 2022 SKKB 235.
A majority of the Saskatchewan Court of Appeal affirmed Fox’s acquittal and the trial judge’s decision finding breaches of the respondent’s rights under ss.7 and 11(d) of the Charter. However, the appeal panel majority also held that her s. 8 rights to be free from unreasonable search and seizure had been breached, and would therefore have excluded the wiretap evidence on that basis, pursuant to s.24(2) of the Charter: R. v. Fox, 2024 SKCA 26.
The Crown, which appealed as-of-right based on the dissent below, argues that Fox's obligations as a lawyer did not preclude her from applying to pierce solicitor-client privilege — including pursuant to the innocence at stake exception.
According to the Crown, the trial judge and the majority justices erred by focusing on “the innocence at stake exception to solicitor-client privilege without appreciating that the ethical duty of confidentiality was subject to its own criminal defence exception.”
However, the respondent’s factum filed with the top court notes that although codes of professional conduct permit lawyers to disclose confidential information in order to defend themselves against a criminal charge involving a client’s affairs, those codes don’t go so far as to permit a lawyer to automatically disclose privileged information to defend against a criminal allegation.
In Fox’s case, the second part of the conversation was not just confidential, it was privileged. “In recognition of the sanctity of the solicitor-client relationship, solicitor-client privilege will only be pierced in the most clearly defined and exceptional of circumstances,” the respondent notes.
And although an accused can apply to pierce solicitor-client privilege by virtue of their innocence being at stake, as set out in R. v. McClure, 2001 SCC 14, the respondent contends the Court of Appeal’s majority correctly determined that the innocence at stake test is not suitable in circumstances where an accused lawyer would need to compromise the privilege.
“As such, the majority concluded that, due to Ms. Fox’s position as a lawyer and her corresponding duties of loyalty and confidentiality to her clients, Ms. Fox was not required to apply to pierce the privilege attached to the second part” of the recorded conversation,” the respondent states.
Interveners in the appeal include the Canadian and B.C. Civil Liberties Associations, the attorneys general of Alberta and Ontario and the Public Prosecution Service of Canada.
On Jan. 15, 2025, the Supreme Court will hear an Ontario case where a shareholder of the appellant Lundin Mining Corporation was granted leave, under s. 138.8 of Ontario’s Securities Act, to bring a secondary market securities misrepresentation claim against Lundin and its officers and directors for the mining company’s alleged failure to disclose forthwith “a material change” in its business, operations or capital, as required by the Securities Act: Markowich v. Lundin Mining Corporation, 2023 ONCA 359.
The respondent shareholder also sought to certify the action as a class action under s. 5 of Ontario’s Class Proceedings Act.
The shareholder alleges Lundin engaged in misrepresentation because the company did not publicly disclose pit wall instability and a subsequent rock slide at its open pit copper mine in Chile when those events occurred on Oct. 25 and Oct. 31, 2017, but rather waited to advise investors at its next regularly scheduled update on Nov. 29. The day after, Lundin’s share price on the TSX fell 16 per cent.
According to the appellant mining company, “this case is about clarifying the disclosure obligations of Canadian issuers,” and, in particular, what is the proper interpretation of, or approach to, “material change” in the context of a leave motion under the Securities Act? Should the leave requirement modify or lessen the burden to show a material change?
Other noteworthy appeals featured in the Supreme Court's winter session include:
Corbett Applications (Jan. 23, 2025): Once an accused exercises the right to testify, s. 12 of the Canada Evidence Act provides that they can be cross-examined on prior convictions in the same way as any other witness. However, in order to preserve a fair trial a judge has discretion to exclude or edit what parts of an accused’s criminal record may be used in trial on cross-examination of the accused.
This by-leave criminal appeal from Ontario asks what is the appropriate admissibility framework to be applied on Corbett applications, i.e. applications by the defence to prohibit the use of a testifying accused's record of conviction in cross-examination for the purpose of attacking their credibility: R. v. Hussein, 2023 ONCA 253.
Should the test for admitting a testifying accused’s criminal record be modified, and if so, what is the appropriate test?
The appellant, Awale Hussein, submits the Corbett regime needs to be revisited to shift the burden to the Crown to overcome a presumption of inadmissibility and justify the admission of a criminal record.
“A system geared toward truth-seeking should encourage accused persons, who usually have direct knowledge of the events in question, to give evidence,” but s. 12 has been a systemic disincentive to such testimony, the appellant states in his factum. “The Crown must show that the probative value of eliciting the accused’s criminal record outweighs its prejudicial effect, recognizing that what matters is whether the record supports an inference of dishonesty, not just bad personhood.”
The respondent Ontario Crown argues that R. v. Corbett, [1988] 1 S.C.R. 670, should not be overturned, nor should the appellant’s proposed test for admitting a criminal record be accepted. “It attacks a landmark precedent that has served as a cornerstone of evidence law for nearly forty years,” the Crown’s factum states. “It effectively rewrites a statutory rule of admissibility that Parliament has been content to leave essentially unchanged since Corbett. And it imperils the results of countless criminal proceedings in which trial judges relied on Corbett in their admissibility rulings. There is nothing incremental about any of this.”
“The proposition at the heart of the Corbett admissibility framework — that an accused’s criminal record is evidence of their character relevant to their testimonial trustworthiness — cannot withstand scrutiny,” states the Independent Criminal Defense Advocacy Society, one of several defence bar interveners arguing in favour of a modified test that “should not be rooted in unfair and impermissible assumptions about people with prior convictions.”
Also intervening are Quebec’s Directeur des poursuites criminelles et pénales, the federal Director of Public Prosecutions, and the Canadian Association of Black Lawyers which urges the top court to determine what role social context should play in the Corbett analysis and to ensure that whatever framework the court endorses, “it must be one that accounts for systemic anti-Black racism.”
Good Samaritan Law/Search Incident to Arrest (Jan. 14, 2025) — Subsection 4.1(2) of the Controlled Drugs and Substances Act states that no one who seeks emergency medical or law enforcement assistance because that person or someone else is suffering from a medical emergency is to be “charged or convicted” of the offence of simple possession of a controlled substance if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene of the medical emergency.
The appeal asks what does the Good Samaritan law’s qualified immunity from prosecution mean?
The respondent Wilson was with three others in 2020 when a woman in their group overdosed on fentanyl and one of the group called 911, while another performed CPR.
The police, who responded to the emergency, detained and arrested Wilson, the woman whose life was saved, as well as the others, for simple possession of a controlled substance, after one of the officers saw signs of crystal meth. Incident to the arrest, the police searched the group’s truck and discovered a backpack containing modified handguns, parts for firearms, ammunition and identification papers. Wilson admitted he owned the backpack, the guns, and the ammunition and that the identification papers did not belong to him.
He was later charged with possessing identity documents, fraudulent impersonation, and several firearms offences but not with possession of a controlled substance. Wilson was convicted of firearms offences by the trial judge, who did not accept that Wilson’s Charter rights were breached and who declined to exclude the evidence seized in the search incident to arrest. The Court of Appeal acquitted Wilson on all counts: R. v. Wilson, 2023 SKCA 106.
“This appeal considers whether the police can arrest a person for a crime with which the person cannot be charged or convicted,” the respondent Wilson states in his factum. “The Court of Appeal for Saskatchewan correctly recognized the uncontested application of the. . .immunity provisions to Mr. Wilson’s circumstances meant the police could not lawfully arrest him for the simple possession of drugs. This court should affirm.”
The appellant Saskatchewan Crown argues that officers who attend the scene of a drug overdose to offer help must be entitled to act on reasonable grounds to believe an offence is in progress, or has been committed, to search for and seize illegal drugs for the protection of the public and to prevent the commission of crimes.
“This appeal raises issues about what constitutes an arbitrary arrest within the meaning of s. 9 of the Charter and the proper scope of the power to search incident to arrest,” states the factum of the Criminal Lawyers’ Association - Ontario (CLA), one of eight interveners in the appeal.
In the CLA’s view, the Crown and the Director of Public Prosecutions are arguing that, notwithstanding the Good Samaritan immunity, police are empowered to arrest people for simple possession and to use that power to search them for evidence of other crimes — even absent reasonable grounds to believe, or suspect, that those other crimes are being committed.
“Setting aside the obvious ways in which this outcome would discourage people from seeking medical assistance for drug overdoses, these submissions propose a serious and unconstitutional expansion of police powers,” the CLA contends.
Homeowner’s Insurance/Rebuilding Cost Endorsement (March 18, 2025): The appellants’ home on the Ottawa River was totally destroyed by flood in April 2019, but they had an insurance policy, with a “Guaranteed Rebuilding Cost” (GRC) endorsement (similar to endorsements found in homeowner policies across Canada), that provided replacement coverage.
The insureds claimed that the endorsement fully guaranteed their rebuilding costs. The insurer, Trillium Mutual Insurance Company, acknowledged that the GRC coverage applied to replace the insureds’ home, but took the position that the costs to be incurred to comply with the local Mississippi Valley Conservation Authority’s (MVCA) regulation policies and other by-laws and regulations enacted after the home was originally built were excluded from coverage by an exclusion in the policy.
The application judge held that the GRC coverage was intended to guarantee the costs of rebuilding the home, without any limitation of coverage resulting from the operation of any rule, regulation, by-law, or ordinance: Emond v. Trillium Mutual Insurance Co., 2022 ONSC 5519. However, the Ontario Court of Appeal reversed, holding that the exclusion excluded coverage for increased costs to comply with any law, including the applicable by-laws and regulations: Emond v. Trillium Mutual Insurance Co., 2023 ONCA 729.
The appellants contend in their factum, “sophisticated insurance companies should not be permitted to mislead their insureds by deliberately deploying tantalizing and sensational language designed to lead the average person to believe they had purchased peace of mind insurance, only to invalidate that same coverage by way of a buried exclusion clause. . . Any limitation on expanded coverage should be set out in the endorsement in clear and easily intelligible terms, otherwise no limitation to the expanded coverage can or should apply.”
Responds Trillium, the appellants have not fallen prey to the acknowledged imbalance between insurers and their insureds. Rather, applying the Supreme Court’s teaching in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, that, absent ambiguity, a court should give the insurance terms their ordinary meaning, reading the contract as a whole, “the Court of Appeal correctly found that the policy’s exclusion of ‘increased costs of repair or replacement due to operation of any law regulating the zoning, demolition, repair or construction of buildings’ (the ‘Compliance Cost Exclusion’), captured the costs of complying” with the MVCA’s Regulations, the insurer’s factum states. “It reached this conclusion by reading the policy as a whole and giving its unambiguous terms their ordinary meaning.”
The Ontario Trial Lawyers Association, the Insurance Bureau of Canada, the Canadian Association of Mutual Insurance Companies, Ontario Mutual Insurance Association, and Farm Mutual Reinsurance Plan Inc. intervene in the appeal.
Municipal Parkland/Adverse Possession (Jan. 16, 2025): Can a private property owner illegally erect a fence on municipal parkland without the municipality’s knowledge, deprive the public of access to it, and then acquire title to that parkland through adverse possession? “The majority of the Ontario Court of Appeal correctly found that the answer is no,” contends the respondent City of Toronto, which asks the top court to dismiss the appeal: Kosicki v. Toronto (City), 2023 ONCA 450.
The appellant private properly owners ask questions: Does the applicable statutory scheme or the existing case law support the Court of Appeal’s decision to exempt municipal parkland from the application of ss. 4 and 15 of the Real Property Limitations Act (RPLA)? Did the Court of Appeal have the jurisdiction to use the common law to provide that municipal parkland is exempt or immune from the application of ss. 4 and 15 of the RPLA? If the answer to the latter question is “yes”, was it appropriate for the Court of Appeal to amend the law of adverse possession to find that municipal parkland is exempt or immune from claims of adverse possession?
The cities of Ottawa and Surrey. B.C., the attorneys general of Ontario and B.C., and Advocates for the Rule of Law are interveners.
Mandatory Minimum Sentence/Child Pornography (Jan. 20, 2024): The Crown appeals the Quebec Court of Appeal’s striking down the minimum one-year sentences of imprisonment in ss. 163.1(4)(a) and (4.1)(a) of the Criminal Code for possessing or accessing child pornography as an unjustified violation of the Charter’s s. 12 protection against cruel and unusual punishment: Procureur général du Québec v. Senneville et al., (aka Procureur général du Québec c Terroux, 2023 QCCA 731).
Intervening are the Association Québécoise des avocats et avocates de la défense, the Criminal Lawyers’ Association of Ontario (CLA), the Canadian Civil Liberties Association (CCLA) and the Canadian Centre for Child Protection Inc.
The intervener Raoul Wallenberg Centre for Human Rights argues that Parliament’s choice of imposing a minimum sentence for accessing and possessing child pornography “is a recognition of the indelibly harmful and inherently exploitative nature of child pornography, and reflects the important objective of protecting the dignity, privacy, and physical and sexual integrity of children. . . In sentencing convicted persons for accessing and possessing child pornography, courts should apply a holistic, childcentric and trauma-informed approach.”
The CCLA argues “the central issue in this appeal is the proper analytical framework to determine the constitutionality of mandatory minimum sentences under s. 12” of the Charter. “At its core, the consideration of mandatory minimums under s. 12 asks how long Parliament can constitutionally force individuals to spend in prison beyond what is just or proportionate in the circumstances.”
The CLA argues that the seriousness of child pornography offences does not justify a “one size fits all” penalty. “Sentences must reflect the gravity of the offence and the degree of responsibility of the offender,” the defence bar argues. “In the context of child pornography cases, sentencing judges must be permitted to consider a non-exhaustive list of factors when considering an appropriate sentence along the spectrum of possible sentences. Factors such as the number of images or videos possessed, the duration of possession, the use of technological means, are some among many considerations, which assist a sentencing judge in crafting a fit sentence. Prohibiting sentencing judges from considering these factors removes their discretion and undermines the principles of parity and proportionality.”
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