The Supreme Courts of Canada and the US have been busy in the last three months, and a summary of some of the cases heard in each of them appears below.  A particular point to note is that during November 2009, three appeals were heard in the US Supreme Court which concerned the competence of defence counsel in sentencing proceedings.  The three appeals had varying outcomes.


Northrop Grumman Overseas Services Corp. v Canada (Attorney General), 2009 SCC 50 (5 November 2009) The Supreme Court considering the jurisdiction of the Canadian International Trade Tribunal (“CITT”) under the Agreement on Internal Trade (“AIT”) to hear complaints by international suppliers. In quashing the appeal the Supreme Court held that the CITT’s jurisdiction was limited to complaints brought by Canadian suppliers.

Miazga v Kvello Estate, 2009 SCC 51 (6 November 2009) The Supreme Court considered whether the Provincial Crown authority was liable for malicious prosecution regarding sexual assault charges and concluded that there was no evidence to support a finding of malice on the facts of the case.

R v Basi, 2009 SCC 52 (19 November 2009) The Supreme Court considered the disclosure of information to defence counsel over which informer privilege had been claimed.

Co-operators Life Insurance Co. v Gibbens, 2009 SCC 59 (18 December 2009) The Court of Appeal for British Columbia had held that paraplegia caused by genital herpes, which the Respondent had acquired through unprotected sexual intercourse, qualified as a “bodily injur[y] occasioned solely through external, violent and accidental means” for the purposes of the Respondent’s group insurance policy with the Applicant insurance company. The Supreme Court allowed the appeal.

Consolidated Fastfrate Inc. v Western Canada Council of Teamsters, 2009 SCC 53 (26 November 2009) The Applicant was a freight forward company operating across Canada, with an integrated national corporate structure with branches throughout Canada and contracts with third party “interprovincial” carriers. The Supreme Court, in dismissing the appeal, held that the labour relations of the Applicant’s branch employees were subject to federal jurisdiction and that the Applicant company qualified as an interprovincial undertaking even though it did not itself perform the interprovincial carriage of goods.

Desbiens v Wal-Mart Canada Corp., 2009 SCC 55 (27 November 2009) and Plourde v Wal-Mart Canada Corp., 2009 SCC 54 (27 November 2009) A local Wal-Mart was closed shortly after there had been negotiations with the workers through their union, which had been certified by the Commission des relations du travail (“CRT”) in 2004.  Upon the closure, the Applicant employees alleged that their loss of employment was due to the union activities. The CRT allowed the employees’ complaint and reserved its jurisdiction to determine appropriate remedies. The Respondent employer claimed that there was a “good and sufficient reason” to justify the dismissals within the meaning of the Quebec Labour Code and applied to the Superior Court for judicial review of the CRT’s decision. This was dismissed and appealed to the Court of Appeal, who overturned that decision. The Supreme Court of Canada dismissed the Applicant employee’s appeal but without costs.

R v Legare, 2009 SCC 56 (3 December 2009) The Appellant, Legare, had been charged with “luring a child” but had been acquitted at trial. The Supreme Court upheld The Court of Appeal’s decision to set aside this acquittal on the basis that the trial judge had misdirected himself as to the essential elements of the offence, and ordered a new trial.

Quan v Cusson, 2009 SCC 62 (22 December 2009) and Grant v Torstar Corp., 2009 SCC 61 (22 December 2009) The Applicants in both these appeals were newspapers sued for libel by the Respondents. The Supreme Court ordered new trials in both cases on the basis that Canadian defamation law had been modified to recognise the new defence of “responsible journalism” or “responsible communication on matters of public interest”. 

MiningWatch Canada v Canada (Fisheries and Oceans), 2010 SCC 2 (21 January 2010) The Supreme Court of Canada considered the level of environmental assessment required for the development of a copper and gold open pit mining and milling operation under the Canadian Environmental Assessment Act and the Comprehensive Study List Regulations.

Canada (Prime Minister) v Khadr (January 29 2010) This appeal concerned a Canadian, Khadr (“K”), held prisoner in Guantanamo Bay. K had sought judicial review of a decision of the Canadian Prime Minister not to allow K’s repatriation even though the Supreme Court of Canada had previously found K’s treatment at Guantanamo Bay to be against K’s rights under the Canadian Charter of Rights and Freedoms. Although the Supreme Court in this instance found that K’s Charter rights had again been violated it held that the government must have discretion in its discharge of the royal prerogative over foreign relations and left it to the Canadian government to decide how best to respond.


Bobby v Van Hook (09-144) (9 November 2009) The Supreme Court granted the petition and reversed the order of the Court of Appeals for the Sixth Circuit, which had granted habeas relief to the Respondent, Robert Van Hook, on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial. The Supreme Court reasoned that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard.

Wong v Belmontes (08-1263) (16 November 2009) The Supreme Court applied the two-pronged test from Strickland v Washinton to determine whether the ineffectiveness of defence counsel had led to prejudice in the sentencing of a convicted murderer. The Supreme Court disagreed with the Court of Appeals on the prejudice-based second prong and held that defence counsel’s efficacy would not have prejudiced the outcome of the sentence. The Supreme Court therefore reversed the Court of Appeals decision and remanded the case for further proceedings consistent with their opinion.

Porter v McCollum (08-10537) (30 November 2009) Porter had been convicted on two counts of first-degree murder and had been sentenced to death for one of the counts. However, his defence counsel had failed to adduce as mitigating evidence that Porter was mentally traumatised from his participation in the Korean War. The District Court ruled that this failure violated Porter’s Sixth Amendment right to counsel and therefore prejudiced his sentence. This ruling was reversed by The Court of Appeals for the Eleventh Circuit, whose ruling was in turn reversed by the Supreme Court in this judgment.

Union Pacific R. Co. v Locomotive Engineers and Trainmen Gen. Comm. Of Adjustment, Central Region (08-604) (8 December 2009) This appeal considered The Railway Labor Act and the powers of the National Railroad Adjustment Board in the resolution of union disputes.

Alvarez v Smith (08-351) (8 December 2009) The Supreme Court considered whether local law enforcement agencies were entitled to seize personal property without review of the lawfulness of the continued detention of the property.

Mohawk Industries Inc v Carpenter (08-678) (8 December 2009) This appeal considered the disclosure of “attorney-client” privileged evidence in the context of an unlawful termination of employment action.

NRG Power Marketing LLC et al v Maine Public Utilities Commission et al [08-674](13 January 2010) In this case, the Supreme Court of the US considered the Mobile-Sierra doctrine which requires the Federal Energy Regulatory Commission (FERC) to presume that an electricity rate set by a freely negotiated wholesale-energy contract meets the Federal Power Act’s “just and reasonable” prescription.  The Court held that this doctrine applies to complaints initiated at the FERC by non-contracting as well as by contracting parties.

Wellons v Hall [09-57310] (19 January 2010) The Supreme Court granted a petition for a writ of certiorari in a case where the petitioner, Marcus Wellons, had been convicted Georgia state court of rape and murder and sentenced to death. After the jury trial, counsel for Wellons learned that there had been unreported ex parte contact between the jury and the judge, that the jurors and a bailiff had planned a reunion and that “either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts…” The Supreme Court reprimanded the case to the United States Court of Appeals for the Eleventh Circuit for further consideration on whether the petitioner’s allegations, together with the undisputed facts, warranted discovery and an evidentiary hearing.

Citizens United v Federal Election Commission [08-205] (21 January 2010) US federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for “speech that expressly advocates the election or defeat of a candidate”. The Supreme Court applied this provision to the current case where the appellant, a non-profit corporation, released a documentary critical of Hillary Clinton, which they wished to make available on cable television and therefore produced television ads to promote this.

Hemi Group LLC et al v City of New York, New York [08-969] (25 January 2010) This appeal concerned the obligation under the Jenkins Act of “out-of-state” sellers to submit customer information to the state to which they ship their products for the purposes of tax collection. New York City taxes the possession of cigarettes and the petitioner, New Mexico-based company Hemi Group, sells cigarettes online to New York City residents. Since no law requires “out-of-state” sellers to charge, collect or remit tax the City must recover such tax directly with the purchasers. The City filed this suit under the Racketeer Influenced and Corrupt Organisations Act, alleging that Hemi’s failure to file the Jenkin Act reports with the State constituted “racketeering activity”, namely mail and wire fraud. The United States Court of Appeal for the Second Circuit had held that New York City’s loss tax revenue was “by reason of” the mail and wire frauds. The Supreme Court reversed this judgment and remanded the case.