Canada's Court: Oral Arguments from the SCC: Recent Episodes
Criminal Lawyers' Association
Canada’s Court is the first podcast to highlight select oral hearings from The Supreme Court of Canada. Presented by the Criminal Lawyers’ Association and available on all major podcast platforms. Visit podcast.criminallawyers.ca for more information.
A full webcast version of the oral arguments featured in each episode can be viewed from The Supreme Court of Canada website at scc-csc.ca or obtained from the court directly.
The Supreme Court of Canada is not affiliated with this podcast and did not produce or participate in it’s creation.
This case is about the Taylor test for fitness to stand trial and the separate test for not criminally responsible by reason of mental disorder.
Facts: after several years of deteriorating mental health, the appellant moved into a basement apartment with other tenants. Five days later, the appellant murdered one of the other tenants. The appellant told the police, surrendered himself, and explained how he carried out the murder.
In May 2016, a jury found the appellant unfit to stand trial and he was sent to an in-patient treatment facility to see if he could become fit. At a second hearing in August 2016, after spending over three months in hospital, a second jury reversed the first, finding the appellant fit to stand trial.
A jury convicted the appellant of murder. He appealed to the Court of Appeal for Ontario. The Court of Appeal dismissed the appeal. The Supreme Court of Canada granted leave to appeal on two issues. First, whether the Taylor test requires that the accused person can make rational decisions about the conduct of their defence. Second, whether the not criminally responsible defence applies when the accused person has the general capacity to know that society would regard their actions as morally wrong, but due to their mental disorder does not have the specific capacity to apply that knowledge to their actions.
When an inmate in a provincial correctional facility in Saskatchewan is charged with a disciplinary offence, the governing legislation requires the institutional authorities to determine, on a balance of probabilities, that the offence occurred in order to establish guilt. The John Howard Society of Saskatchewan asserts that employing this standard of proof violates s. 7 of the Charter. It submits that proof beyond a reasonable doubt is necessary to withstand constitutional scrutiny.
The Saskatchewan Court of Appeal disagreed. The Supreme Court of Canada granted leave to appeal to determine whether and to what extent the presumption of innocence operates as a principle of fundamental justice in non-criminal settings.
The Crown appealed, and the Nova Scotia Court of Appeal agreed with the Crown that the trial judge erred in finding that the evidence of threats and violence towards the complainant was “past discreditable conduct.” However, the Court of Appeal held that the error could not have impacted the trial judge’s findings because a finding of exploitation or attempted exploitation rested on the evidence of the complainant, which was ultimately not accepted at trial. The appeal was dismissed.
The dissenting judge however, held that had the trial judge not made such a grave evidentiary error, the verdict may very well have not been the same. She emphasized that the Crown was entitled to rely on the evidentiary presumption in S. 279.01(3) of the Criminal Code. The dissenting judge would have set aside the acquittals and ordered a new trial.
The accused was alleged to have committed human trafficking and related offences between 2006-2011. At trial, the trial judge did not accept the complainant’s evidence. Yet, the trial judge did find that the accused had engaged in threats, intimidation and injury towards the complainant. However, the judge found that this was “past discreditable conduct” and not evidence that could be applied to make a finding on the actus reus of the charged offences. The accused was acquitted.
The Crown appealed, and the Nova Scotia Court of Appeal agreed with the Crown that the trial judge erred in finding that the evidence of threats and violence towards the complainant was “past discreditable conduct.” However, the Court of Appeal held that the error could not have impacted the trial judge’s findings because a finding of exploitation or attempted exploitation rested on the evidence of the complainant, which was ultimately not accepted at trial. The appeal was dismissed.
The dissenting judge however, held that had the trial judge not made such a grave evidentiary error, the verdict may very well have not been the same. She emphasized that the Crown was entitled to rely on the evidentiary presumption in S. 279.01(3) of the Criminal Code. The dissenting judge would have set aside the acquittals and ordered a new trial.
Mr. Campbell was convicted of trafficking, and heroine and Fentanyl, and possessing those drugs for the purpose of trafficking them, contrary to the Controlled Drugs and Substances Act. At trial, Mr. Campbell argued that his rights under Section 8 of The Charter had been violated because he had privacy interests in text messages that he was sending a local dealer. When police arrested that local dealer, incoming text messages were visible on the lock screen that suggested the sender was selling a quantity of drugs to the local dealer. Police impersonated the local dealer and responded to the messages, directing the sender where to attend. Mr. Campbell arrived in accordance with the police instructions for the fictious transaction. He was arrested and 14.33 grams of heroine mixed with fentanyl was found after a search incident to arrest. The trial judge dismissed the Charter application, citing that Mr. Campbell had no reasonable expectation of privacy in the text messages, and that there were exigent circumstances present for police to act because the texts clearly indicated Fentanyl was to be trafficked. The Court of Appeal agreed that the trafficking of Fentanyl is of such grave public concern that it constituted exigent circumstances, but found that Mr. Campbell did in fact have a reasonable expectation of privacy in the lock screen texts. However, given the police had exigent circumstances, there was no finding that his Section 8 rights were breached and accordingly, his appeal was dismissed by the Court of Appeal.
Bonjour et bienvenue à un autre épisode de Canada’s Court présenté par l’Association des avocats de la défense. Je m’appelle Jade Roberts et je suis une avocate de la défense basée à Toronto. Je vous présente aujourd’hui le dossier de Boudreau contre sa Majesté le Roi
Gabriel Boudreau est déclaré coupable de conduite dangereuse causant des lésions corporelles suite à une collision qui s'est survenu entre M. Boudreau et la plaignante. La juge de première instance a conclu qu'il avait participé à une course avec un autre conducteur. En appel, l'appelant fait valoir que la juge de première instance a erré en concluant qu'il avait participé à une course avec un autre conducteur. Les juges majoritaires à la Cour d'appel du Québec rejettent l'appel puisqu'ils sont d'avis que le verdict n'est pas déraisonnable.
Cependant, la juge dissidente a remarqué que la juge de première instance a commis deux erreurs : premièrement, la version de l'appelant était compatible avec le site des dommages en plus d'avoir été confirmée par le témoignage de la plaignante; et deuxièmement, la conclusion de la juge selon laquelle la plaignante circulait dans la voie de gauche bien avant l'impact était contredite par le témoignage de la plaignante. Ces conclusions sont au cœur de l’analyse de doute raisonnable. L’appelant soutien toujours que le verdict est déraisonnable.
This is a bonus episode that features oral argument for leave to appeal to the Supreme Court. The applicants, Mr. Flemmings and Mr. Agpoon, received a stay of proceedings at trial under sections 11(b) and 24(1) of the Charter because of unreasonable delay in bringing them to trial. The heart of the issue was the impact of the COVID-19 pandemic on delay. The Crown preferred a direct indictment to mitigate delay caused by the COVID-19 pandemic. However, the applicants successfully argued at trial that the direct indictment was brought unreasonably late. The Court of Appeal overturned the stay and ordered a new trial. That case was called Agpoon.
An accused person is entitled to an oral hearing to argue leave to appeal to the Supreme Court when, as here, a court of appeal overturns an acquittal or stay on an indictable charge and orders a new trial.
The applicants sought leave to the Supreme Court, submitting that this case was the Court’s first and best chance determine how COVID-19 delay should be treated under s. 11(b) of the Charter.
The Appellant, Daniel Hodgson, was charged with second-degree murder following a death at a house party. The victim, a large man, had become aggressive towards the house owner and refused to leave. Mr. Hodgson, who was asleep in a nearby bedroom, was asked by a guest to help remove the victim from the house. The victim died after Mr. Hodgson applied a one-arm choke hold on him.
Mr. Hodgson was acquitted at trial in the Nunavut Court of Justice. The trial judge had reasonable doubt as to whether Mr. Hodgson had the requisite intent for murder. On the lesser included offence of manslaughter, the Court held that the Crown had not disproven beyond a reasonable doubt that Mr. Hodgson acted in self-defence, pursuant to s. 34 of the Criminal Code. The Crown appealed to the Nunavut Court of Appeal, who set aside the acquittal and ordered a new trial. The Court of Appeal agreed with the Crown’s submission that the trial judge improperly took a solely subjective approach to assessing Mr. Hodgson’s response to the perceived threat posed by the victim.
Mr. Hodgson sought leave to appeal to the Supreme Court of Canada, which was granted. Mr. Hogson argues, among other grounds of appeal, that the Court of Appeal erred in concluding that the trial judge erroneously approached the issue of the reasonableness of his response under s. 34(2)(c) from a purely subjective perspective.
Bonjour et bienvenue à un autre épisode de Canada’s Court présenté par l’Association des avocats de la défense. Je m’appelle Jade Roberts et je suis une avocate de la défense basée à Toronto. Je vous présente aujourd’hui le dossier de Agénor Archambault, et al, contre sa Majesté le Roi.
En juin et juillet 2019, dans deux dossiers distincts : M. Archambault est accusé de commettre un attentat à la pudeur d’une personne de sexe masculin, survenu entre 1958 et 1960, et M. Grenier est accusé de commettre les infractions de contacts sexuels et agression sexuelle, entre 2003 et 2007. À partir de 2019, ces infractions sont passibles d’un emprisonnement maximal de 14 ans. Cependant, ces infractions étaient passibles d’un emprisonnement maximal de dix ans au moment où ils auraient été commis.
Le 19 septembre 2019, l’art. 535 du Code criminel est modifié, et le droit à l’enquête préliminaire est aboli lorsqu’un prévenu est inculpé d’un acte criminel passible d’une peine d’emprisonnement de moins de 14 ans.
Les deux intimés présentent une demande d’enquête préliminaire après le 19 septembre 2019. Les deux demandes sont rejetées par la Cour du Québec pour absence de compétence après la modification à l’art. 535 du Code criminel. Les deux intimés ont fait appel devant la Cour supérieure du Québec, qui refuse le contrôle judiciaire dans chacun des deux cas.
La Cour d’appel du Québec détermine que la modification à l’art. 535 du Code criminel s’applique prospectivement et elle renvoie chacun des dossiers à la Cour du Québec pour une enquête préliminaire.
The appellants, Emanuel Lozada and Victor Ramos, were both charged with manslaughter. They, along with one another male, were involved in two fights, the second of which resulted in the fatal stabbing of the victim. At trial, the Crown argued that the appellants were liable as co-principals or as aiders or abettors of the stabber. A jury found both appellants guilty of manslaughter.
The appellants appealed to the Court of Appeal for Ontario, alleging, among other grounds, that the trial judge erred in his jury instruction on the law of causation regarding co-principal liability. The majority dismissed the appeal, finding that the jury instructions, read as a whole, accurately reflected the law of causation as it applied to the appellants. In dissent however, Justice Paciocco would have allowed the appeal, would have quashed the conviction, and ordered a new trial.
He concluded that the trial judge had misdirected the jury by understating the standard of “reasonable foreseeability” that the jury could use in deciding whether the appellant’s unlawful act amounted to a “significant contributing cause” of the victim’s death.
Mr. Lozada and Mr. Ramos both appealed to the Supreme Court of Canada as of right.
Bonjour et bienvenue à un autre épisode de Canada’s Court présenté par l’Association des avocats de la défense. Je m’appelle Jade Roberts et je suis une avocate de la défense basée à Toronto. Je vous présente aujourd’hui le dossier de Landry contre sa Majesté le Roi
L’appelant, un policier, était en arrêt de travail temporaire en raison de troubles médicaux. Lors d’une réunion avec un médecin-arbitre qui devait déterminer si l’incapacité de l’appelant était permanente, celui-ci a dénaturé ses activités de travail auprès des agences de voyage de son ex-épouse. Le médecin-arbitre a conclu à l’incapacité permanente de l’appelant, qui avait en conséquence droit à une indemnité permanente d’invalidité de son employeur. L’employeur avait connaissance de certaines des activités de travail de l’appelant, mais il n’en a pas informé le médecin-arbitre.
Le juge du procès a conclu que tous les éléments de l’infraction de fraude dépassant 5 000 $ étaient établis. L’appelant a été reconnu coupable d’un chef d’accusation de fraude. La Cour d’appel a confirmé à la majorité la décision du premier juge. La juge Cotnam de la Cour d’appel a exprimé sa dissidence et aurait substitué un verdict de tentative de fraude.
La dissidence de la juge Cotnam a accordé à M. Landry le droit de faire appel de la décision devant la Cour suprême du Canada.
Private D.T. Vu was charged with sexual assault. It was alleged that he performed a sex act on the complainant who was incapable of consenting to the act by reason of advanced intoxication. The military judge concluded that the Crown did not prove beyond a reasonable doubt that the complainant failed to consent.
The Crown appealed to the Court Martial Appeal Court. The appeal was dismissed. However, in dissent, Justice McVeigh concluded that the military judge erred in law by failing to consider all of the evidence cumulatively, which led him to speculate improperly about alternative theories. These errors might have reasonably had a material bearing on the verdict. Further, the military judge erred by relying on improper inferences which, in effect, amounted to an insistence that the complainant’s intoxication had to be corroborated beyond the available evidence in this case.
The Crown appealed to the Supreme Court of Canada as of right.
Bonjour et bienvenue à un autre épisode de Canada’s Court présenté par l’Association des avocats de la défense. Je m’appelle Jade Roberts et je suis une avocate de la défense basée à Toronto. Je vous présente aujourd’hui le dossier de Tayo Tompouba contre sa Majesté le Roi
Monsieur Tayo Tompouba est inculpé d’agression sexuelle. Lors de sa première comparution, il n’est pas avisé de son droit de faire une demande de subir son procès en français, malgré l’obligation de la cour de l’en informer selon le par. 530(3) du Code criminel. Il est reconnu coupable après un procès en anglais. La Cour d’appel reconnait l’erreur de ne pas avoir avisé M. Tayo Tompouba de son droit, mais elle applique la disposition réparatrice afin de rejeter son appel. La Cour d’appel statue que le droit prévu au par. 530(3) s’agit d’un droit procédural et non d’un droit substantiel.
Bonjour et bienvenue à un autre épisode de Canada’s Court présenté par l’Association des avocats de la défense. Je m’appelle Jade Roberts et je suis une avocate de la défense basée à Toronto. Je vous présente aujourd’hui le dossier de Sergent S. R. Proulx, et al, contre sa Majesté le Roi.
Les appelants sont des membres des Forces armées canadiennes. Chacun faisant face à diverses accusations. Ils ont chacun déposé une requête préliminaire en cour martiale pour demander l’arrêt des procédures en alléguant une atteinte au droit constitutionnel d’être jugé par un tribunal indépendant et impartial que leur garantit l’al. 11d) de la Charte canadienne des droits et libertés. Selon les appelants, la possibilité que des juges militaires soient poursuivis pour des violations alléguées du code de discipline militaire constituait une atteinte au droit d’être jugé par un tribunal indépendant et impartial. Et en plus, ils ont demandé au juge militaire de déclarer que les art. 12, 17, 18 et 60 de la Loi sur la défense nationale étaient aussi une atteinte au droit d’être jugé par un tribunal indépendant et impartial. Le juge militaire de première instance a conclu qu’il y avait une atteinte au droit des accusés prévu à l’al. 11d) de la Charte.
La Cour d’appel de la cour martiale du Canada a accueilli les appels de la Couronne, statuant que le code de discipline militaire s’appliquait à juste titre aux juges militaires et elle a rejeté l’appel incident des accusés.
In the case of Derrick Michael Lawlor v The King, Mr. Lawlor, the appellant, appealed to the Supreme Court of Canada as of right from the Court of Appeal for Ontario, on the basis of a dissenting judge.
The appellant had engaged in a sexual encounter with the deceased and another man at a park. Hours later, the body of the deceased was found, and the cause of death was determined to be neck compression. The appellant suffered from mental illness and had consumed both psychiatric medication and alcohol around the time that he was in the park. The appellant had made statements before and after the deceased’s death stating that he wanted to kill gay men. In the days following, the appellant had searched the internet for news with respect to a body being found in a park.
The appellant was convicted by a jury of 1st degree murder. He appealed his conviction on the basis of several deficiencies in the jury charge. The majority at the Court of Appeal dismissed the appeal on the basis that the instructions to the jury were appropriate. Justice Nordheimer, dissenting, would have allowed the appeal on the basis that the judge failed to instruct the jury with respect to the appellant’s mental health and level of intoxication as it related to the intent for murder, and on the basis that the judge failed to provide a limiting instruction for the use of after the fact conduct evidence.
CASE SUMMARY- TREVOR LINDSAY V. HIS MAJESTY THE KING
At what point should a police officer lose the protection offered by section 25 of the Criminal Code, justifying the use of as much force as necessary, so long as the officer acted on reasonable grounds and used that force for something the officer was required or authorized to do?
This appeal comes to the Supreme Court of Canada as of right from the Court of Appeal of Alberta. Officer Lindsay was charged with aggravated assault against an individual in his custody following an incident, much of which was captured on video. Following a brief interaction with the prisoner, Officer Lindsay was seen punching him in the face and, after another interaction, three more times to the back of the head. The most significant injury, a skull fracture, occurred when, during the course of either throwing the man to the ground or, as the officer testified, lowering him to the ground, the man’s head hit the pavement.
The officer explained that he was concerned initially that the prisoner, whom he had been advised was an intravenous drug user with a history of being aggressive to police, might have a serious infectious disease such as hepatitis C, which could pose a risk should he spit at him or his partner in the cruiser. This concern grew after the first blow, which bloodied the man’s nose, after which he spit some blood at the cruiser.
The officer went on to explain that he meant to lower the man to the ground by the collar of his hoodie but inadvertently got hold of the hood. The slack between the hood and the collar resulted in his not being able to lower him in the controlled fashion he meant to employ, and the resultant contact led to injuries sufficiently serious that defence counsel conceded they were enough to constitute aggravated assault, should the judge conclude that an assault had, in fact occurred.
The trial judge found that there were no reasonable grounds for the first strike as there was no objective basis for any fear. The force used thereafter was excessive.
The majority of the Court of Appeal found no error in the trial judge’s finding that neither section 25 nor section 34 were of assistance to the officer. Wakeling, J.A., in dissent, felt that the trial judge ought to have considered several key questions, including whether a reasonable person with the officer’s training would have considered the assessment of risk reasonable; whether the officer felt the force used was no more than necessary; whether a reasonable person with the officer’s training would have considered that the belief in the need for force and the use of no more force than necessary was reasonable; and whether the harm likely to result to the officer if less force was used should be considered in the context of the degree of harm the detainee might suffer with the use of force chosen.
In particular, he emphasized the need for the trial judge to consider what act(s), in particular, constituted the offence here, as it was essentially the act of putting the man to the ground which resulted in the significant head injury, and what level of intention would have to be proven with respect to the harm which resulted from that conduct.
In today’s society, the use of force by police has been the subject of considerable scrutiny, whether in Canada or elsewhere. The Supreme Court is in a position to provide important clarification on the extent to which such use of force may be justified, such that a criminal conviction ought not to result therefrom.
The appeal to the Supreme Court of Canada originates from Court Martial Appeal Court (CMAC). Prior to the appeal being filed, multiple decisions came out by military judges which held that there is a lack of institutional independence because of their risk of prosecution under the military’s code of Service Discipline. It leaves military judges at risk of being influenced by a senior member of the Canadian Armed Forces. The separate roles is a fundamental postulate of the rule of law. Therefore, judicial independence must not only exist in fact, but it must also be seen to exist to a reasonable person.
The appellants are members of the Canadian Armed forces who had various charges laid against them. The appeals focus on whether the role and status of military judges as military officers in the chain of command compromises their institutional independence, denying the appellants their right to a hearing under s.11 (d) of the Charter.
The question in issue before the Supreme Court of Canada are the following:
1) Since Genereux, do military judges deciding cases still raise a reasonable apprehension of bias?
2) Has there been significant societal change which dissipates this court’s concern that a trial before a military judge is a matter of practical necessity?
3) If so, does the military status of judges, prescribed under the National Defence Act’s legislative scheme, lead an informed person, viewing the matter realistically and practically, to conclude that there is an apprehension of bias contrary to s.11 (d) of the Charter?
4) If so is this violation saved under s 1 of the Charter?
5) If not, what is the appropriate constitutional remedy under s 52 of the Constitution Act, 1982?
In this episode, you will hear the oral submissions from the Appellant Don Johnson vs His Majesty the King. Mr. Johnson was charged with two counts of first-degree murder of brothers, Justin, and Jerome Waterman. The three of them were known to be friends. At trial before a judge and jury, Mr. Johnson denied the crime and that he was the shooter. Further, he alleged that a man named Marcus Cumsille likely murdered the brothers. The Crown argued that it was unlikely Mr. Cumsille was the shooter.
At trial, the Judge instructed the jury, that even if Mr. Johnson was not the shooter, he must be found guilty if there was any intention to assist the shooter, in other words, if he was found to be aiding. After the jury convicted Mr. Johnson, he appealed to the Court of Appeal for Ontario on the basis that the trial judge did not have a factual basis for the party instruction and that a finding of guilt on such was not open to the jury.
The majority dismissed the appeal. In his dissenting remarks, Nordheimer J.A. would have allowed the appeal. He was of the view that there was no evidentiary foundation for party liability that the jury could consider. Furthermore, there was no reason to believe that Mr. Johnson would have assisted the shooter in committing the crime if he was not the shooter.
Mr. Johnson is now appealing to the Supreme Court of Canada as of right.
Mr. Metzger was convicted of two counts of robbery, breaking and entering to steal a firearm, and disguise with intent in relation to 2017 home invasion. Mr. Metzger was convicted largely on the strength of DNA evidence which tied him to a cigarette butt found within the getaway vehicle 11 hours after the robbery. The trial judge concluded that this evidence permitted him to infer both recent possession of the vehicle and guilt in the robbery. The defence appealed the convictions to the Court of Appeal of Alberta on the grounds that the trial judge misapprehended the cigarette butt evidence when he found that it supported the conclusion that Mr. Metzger was in recent possession of the vehicle. The defence further argued that the trial judge misapplied the doctrine of recent possession in his reasons. A majority of the Court of Appeal upheld the verdict, holding that the trial judge did not misapprehend the evidence or err in law by relying on the doctrine of recent possession to infer guilt. Veldhuis J.A., dissenting, would have granted the appeal and substituted an acquittal, holding that the trial judge misapplied the doctrine of recent possession and that the verdict was unreasonable. The defendant appealed as of right to the Supreme Court of Canada. One of the main issues to be determined is whether the trial judge could reasonably convict on the basis of the cigarette butt evidence and the complainant’s testimony - that he may have heard the name "Metzger" spoken during the robbery.
Il y a une ordonnance de non-publication dans le dossier
L’intimé, H.V., a plaidé coupable à une infraction de leurre, poursuivie par voie sommaire, commise entre le 31 juillet et le 9 août 2017. Lors de la détermination de la peine, l’intimé a soulevé l’inconstitutionnalité de la peine minimale obligatoire de 6 mois prévue à l’al. 172.1(2)b) du Code criminel, en vertu de l’art. 12 de la Charte canadienne des droits et libertés. Il a été d’avis qu’une peine d’emprisonnement serait injustifiée. La poursuite a réclamé une peine entre 9 et 12 mois d’emprisonnement avec une probation.
La Cour du Québec a déclaré la peine minimale obligatoire de 6 mois inopérante à l’égard de l’accusé et sursoit au prononcé de la peine en imposant une probation de deux ans avec l’obligation d’effectuer 150 heures de travaux communautaires.
La Cour supérieure a accueilli l’appel, et a confirmé que la peine minimale obligatoire de 6 mois d’emprisonnement prévue par l’al. 172.1(2)b) du Code criminel est inopérante à l’égard de l’accusé au regard de l’art. 12 de la Charte et n’est pas sauvegardée par l’application de l’article premier ; elle a déclaré invalide et inopérante la peine minimale obligatoire et annulé la peine imposée en première instance. Elle a condamné l’accusé à purger 90 jours d’emprisonnement de façon discontinue, avec une probation de 3 ans qui inclut l’exécution de 150 heures de travaux communautaires. Elle a maintenu les autres conditions, modalités et ordonnances prononcées en première instance.
La Cour d’appel a rejeté l’appel de la poursuite, confirmant la peine d’emprisonnement de 90 jours et la déclaration d’invalidité de la peine minimale de 6 mois d’emprisonnement prévue à l’al. 172.1(2)b) du Code criminel. La Cour d’appel a conclu que la Cour supérieure n’a pas prononcé une peine manifestement non indiquée qui n’atteste pas de la gravité objective et subjective du crime commis et qu’elle n’a pas erré en droit en concluant à l’invalidité constitutionnelle de l’al. 172.1(2)b).
M. Chatillon a été déclaré coupable d’un chef d’agression sexuelle sur une enfant. Cette condamnation a été principalement basée sur des aveux qu’il a fait aux professionnels qui l’évaluaient, dans le contexte d’une démarche entièrement volontaire en thérapie pour recevoir des soins en lien avec des problèmes liés à l’abus de substance et de déviance sexuelle. La question qui se posait était de savoir si les aveux étaient protégés par un privilège en droit criminel, question à déterminer selon le cadre d’analyse Wigmore.
Le juge du procès a conclu que cette preuve était admissible suivant ce cadre d’analyse, estimant que les professionnels avaient l’obligation de dénoncer les comportements de M. Chatillon à la Direction de la protection de la jeunesse, nonobstant le secret professionnel qui caractérise la relation thérapeutique.
Les juges majoritaires de la Cour d’appel du Québec ont plutôt déterminé que les aveux étaient inadmissibles en preuve, suivant leur propre analyse des critères du test de Wigmore. L’appel a été accueilli et M. Chatillon acquitté. Le juge dissident aurait rejeté l’appel au motif que les aveux étaient admissibles, puisque non protégés par un privilège. La dissidence a estimé qu’en consentant à la divulgation de ses aveux, M. Chatillon a explicitement renoncé au caractère confidentiel de ceux-ci.
Mr. Hay and the complainant met online and had been dating for approximately one month before the alleged sexual assault, involving unconsensual anal intercourse occured. At the trial, Mr. Hay was allowed under s 276 of the Criminal Code to admit evidence that during a previous consensual sexual encounter with the complainant, she encouraged him to digitally penetrate her anus.
Following a judge-alone trial Mr. Hay was acquitted of the charge. Mr. Hay conceded that the complainant did not consent to the anal intercourse on the day in question, but successfully argued that he had an honest but mistaken belief in the complainant’s communicated consent. The trial judge concluded that the Crown had failed to prove the necessary mens rea.
The Crown appealed Mr Hay’s acquittal, and the Court of Appeal of Alberta unanimously allowed the appeal, quashed the acquittal and entered a conviction for sexual assault. It found the trial judge erred in law both by admitting the evidence of the previous sexual encounter and consequently by finding that there was an air of reality to the defence of honest but mistaken belief in communicated consent.
Mr. Hay is appealing now to the Supreme Court of Canada as of right.
(ORDONNANCE DE NON PUBLICATION DANS LE DOSSIER)
L’intimé a plaidé coupable à une accusation de contacts sexuels commis sur une mineure âgée de moins de 16 ans entre le 1er août 2013 et le 19 juillet 2015. Au cours de cette période, lui et la plaignante ont eu quatre relations sexuelles complètes. Il a plaidé également coupable à une accusation de leurre, en lien avec des échanges avec la plaignante sur les réseaux sociaux entre le 25 février 2015 et le 13 septembre 2015.
La juge de première instance a condamné l’intimé à une peine de 10 mois d’emprisonnement sur le chef de contacts sexuels et à 5 mois d’emprisonnement concurrents sur celui de leurre. Elle a conclutpar ailleurs que la peine minimale obligatoire d’un an d’emprisonnement prévue à l’al. 172.1(2)a) C.cr. pour l’infraction de leurre est disproportionnée, vu les circonstances de sa commission en l’espèce et celles propres à l’intimé, et qu’elle contrevient donc à l’art. 12 de la Charte. Elle l’a déclaré en conséquence inopérante à l’égard de l’intimé.
La majorité de la Cour d’appel du Québec a rejeté l’appel de la peine d’emprisonnement pour l’infraction de leurre et de la déclaration du caractère inopérant de la peine minimale. Le juge Levesque, dissident, aurait accueilli l’appel, rehaussé la peine pour l’infraction de leurre de 5 à 12 mois, et annulé la déclaration d’inopérabilité.
L’appelant fait son appel de plein droit. Les questions devant la cour Suprême ont été lié à la proportionnalité de la condamnation et à la constitutionnalité de l’al. 172.1(2)1(a) du Code Criminel.
https://scc-csc.ca/case-dossier/info/sum-som-fra.aspx?cas=39935
Mr. S.S. was charged with sexual assault and sexual interference against his niece E.B who was 6-8 years old at the time of the allegations.
The crux of the crown’s case was E.B.’s unsworn video statement. E.B promised to tell the truth when she gave her police statement, yet at the preliminary hearing, she was unable to recall giving a statement to police or any details surrounding the allegations, and thus defence counsel was not able to cross-examine her.
The Crown argued that the statement met the necessity and reliability thresholds and should be admitted as an exception to the hearsay rule at trial. The trial judge found that the child’s evidence should be treated differently pursuant to R v W(R), [1992] 2 SCR 122, and that her video evidence detailing the assaults met the hearsay exception. The trial judge admitted the video statemen, and SS was convicted of both charges.
After conviction, the Crown successfully sought to declare S.S. a dangerous offender, and the trial judge added ten years of supervision following the completion of S.S.’s ten-year prison sentence.
SS’s appeal was heard by the panel of Feldman, Thorburn, and MacPherson JJA at the Court of Appeal for Ontario. The majority decision written by Feldman J. allowed S.S.’s appeal, set aside the conviction and entered an acquittal on the two charges. The majority held that the trial judge erred in finding that the statement met threshold reliability for admittance. The Appeal Court found that the trial judge erred in making a positive finding that the complainant did not have a motive to fabricate these allegations. Ultimately, there were several reliability concerns with the statement that could not meaningfully be tested by cross-examination.
MacPherson JA in dissent would have dismissed the appeal. He found that the unsworn statement was inherently trustworthy as E.B. had given explicit details of the acts underlying the charges when she gave her police statement, and a motive to fabricate is only one of the factors that support reliability.
The Crown appealed to the Supreme Court of Canada as of right.
This case comes before the Court as of right following a dissent in the Alberta Court of Appeal.
In September of 2017, police investigated the purchase of virtual gift cards using fraudulent credit card information. There were two IP addresses of interest which police believed were used in the transactions. Warrants were executed at both residences associated and the appellant was arrested. The Appellant was charged with 33 offences relating to firearms and the possession and use of third parties' credit cards and personal information documents. At trial, he argued that his section 8 Charter rights, inter alia, had been violated.
The trial judge held that it was not objectively reasonable to recognise a subjective expectation of privacy in an IP address used by an individual and found no section 8 breach. The Appellant was convicted of 13 counts. The majority of the Court of Appeal of Alberta agreed with the trial judge in her interpretation of the law governing the section 8 analysis and dismissed the appeal.
Veldhuis J.A., in dissent, would have allowed the appeal and ordered a new trial, holding that the appellant did have a reasonable expectation of privacy in the IP addresses, leading to a section 8 breach.
The Appellant appealed to the Supreme Court of Canada as of right.
In 2012, two young Somali men were murdered in what was perceived by Police and the media to be street level gang violence. Toronto Police led a joint forces operation, “Project Traveller”, which resulted in 55 arrests, mostly in Toronto’s northwest. The Appellant would eventually be convicted by a jury on firearms and criminal organization charges.
At trial, the Crown led translations of wiretaps through an expert witness. The Appellant objected to the translator being tendered as an expert, claiming that his opinions were unreliable because there were significant frailties in his knowledge, training, and expertise as a Somali translator. The trial judge nevertheless qualified the translator as an expert and admitted his evidence. This would become significant, not just for the admissibility question of arguably dubious evidence, but also because the wiretaps were crucial to the criminal organization charge. While the wiretaps were arguably laden with details about the nature of the gang being prosecuted, they were based on conversations of people that did not include the appellant nor his co-accused. This included reference to coded language, hierarchies, and what the Crown would characterize as evidence of “cohesiveness and continuity.”
The defence urged the jury to find that it was a rag tag disorganized group that formed for the purpose of committing the isolated crime of moving guns from Windsor to Toronto. (A singular offence being specifically statutorily excluded from the definition of criminal organization in the Code.)
Since the wires contained utterances by non-accused people that arguably contained boastful or conjectural statements, a complete and legally correct charge to the jury was critical to the accused persons receiving a fair trial.
The Court of Appeal for Ontario unanimously dismissed the Appellant’s appeal relating to the Somali translations. The Appellant also complained that the instructions to the jury on the definition of “criminal organization” were inadequate. This ground was likewise dismissed by the majority, but held sway by Paciocco, J.A. In dissent, he found fault with the trial judge’s failure to develop in his charge “the requirement that the organization have structure and continuity.”
Leave was sought but denied on the translation issue. Thus, the case appears before the Supreme Court of Canada as an appeal as of right based on the dissent by Paciocco, J.A. on the question of law relating to the definition of a criminal organization.
La Cour d’appel du Québec, rejette l’appel de l’accusé basé sur le caractère déraisonnable du verdict.
Siégeant en appel, la Cour d’appel du Québec confirme le verdict de culpabilité.
Selon le juge Moore, il était raisonnable pour la juge du procès de conclure que les circonstances, y compris le fait que la preuve en défense ne soulevait aucun doute raisonnable, excluaient toute conclusion autre que la culpabilité.
La majorité explique que la juge de première instance a retenu de la preuve que ces éléments étaient établis hors de tout doute raisonnable et elle pouvait arriver à une telle conclusion.
Le juge Moore, souligne dans ses motifs que le rôle d’une cour d’appel en ces matières « n’est pas de se substituer à la juge des faits, mais de vérifier si la détermination de celle-ci est elle-même raisonnable, même si un autre juge aurait pu tirer une conclusion différente »
Par contre, le juge Schrager, en dissidence, estime que le verdict est déraisonnable.
Selon lui, cette conclusion repose sur l’existence d’une inférence raisonnable incompatible avec la culpabilité et sur une erreur de droit relativement à un renversement du fardeau de la preuve.
Pour le juge dissident, l’inférence alternative à la culpabilité est la suivante : l’arme à feu fut placée dans le sac de papier de l’appelant au moment où les gyrophares du véhicule de police se sont allumés, à son insu, par Kevinson Daniel, qui prenait également place à l’arrière du véhicule.
Alors l’appelant fait l’appel devant la Cour suprême du Canada.
La question en litige est de déterminer si les juges majoritaires de la Cour d’appel du Québec ont erré dans leur application des principes en matière de verdict déraisonnable, de possession et de preuve circonstancielle.
L’appelant soumet que la preuve de nature circonstancielle dans le présent dossier n’était pas de nature à conclure hors de tout doute raisonnable à la culpabilité de l’appelant d’avoir eu en sa possession une arme à feu.
Il y avait la possibilité que l’arme à feu a été placée dans le sac à l’insu de l’appelant, une inférence raisonnable de la preuve.
L’appelant demande donc à la Cour supreme du Canada d’infirmer la décision de la juge de première instance, confirmée en appel, et d’imposer un verdict d’acquittement à son égard.
On January 7, 2020, David Edward Fury entered the home of Paul and Chris Worrall on two occasions, culminating in physical confrontations between the parties. Later that night, Paul Worrall gave a statement to police. However, prior to trial, Mr. Worrall died of unrelated causes.
At trial, the prosecution tendered Mr. Worrall’s statement for the truth of its contents. The trial judge admitted the statement, ruling that the increased necessity reduced the need for reliability. Mr. Fury was convicted of breaking and entering into a dwelling, assault with a weapon, assault causing bodily harm, possession of a knife for a purpose dangerous to the public peace, and breach of an undertaking.
On appeal to the Court of Appeal of Newfoundland and Labrador, the majority held that the trial judge erred in finding that where necessity was high, less reliability was required, as the proposition was not supported in law. The majority ruled that increased necessity did not reduce the threshold reliability required to render an out-of-court statement admissible. As such, the statement ought not to have been admitted for the truth of its contents.
In dissent, Knickle J.A. found that the trial judge did not improperly relax the criteria set out in the principled approach to the hearsay rule. Knickle J.A. found the trial judge applied the skeptical and cautious approach required in assessing necessity and reliability, including considering the criteria in tandem, and with flexibility.
Her Majesty the Queen appealed, as of right, to the Supreme Court of Canada.
In 2017, the Appellant, Jennifer Basque, was charged with operating a motor vehicle while having a blood alcohol level greater than 80 milligrams per 100 millilitres of blood. One of the conditions of her pre-trial release prohibited her from operating a motor vehicle. She was subject to the driving prohibition term of her release order for 21 months before being sentenced. The sentencing judge imposed a $1,000 fine and, under the now repealed s. 259(1)(a) of the Criminal Code, a mandatory minimum one year driving prohibition. The sentencing judge then applied presentence credit for the 21 months Ms. Basque had been subject to the driving prohibition. As a result, Ms. Basque did not face a further driving prohibition. The decision to take the presentence driving prohibition into account was affirmed by the summary conviction appeal court judge. The majority of the New Brunswick Court of Appeal allowed the subsequent appeal by the Crown, imposed a one-year driving prohibition, and stayed the execution of the prohibition order. The dissenting judge was of the view that the appeal should be dismissed.
Ms. Basque was granted leave to appeal to the Supreme Court of Canada.
Mr. Downes was convicted of two counts of voyeurism contrary to s. 162(1)(a) of the Criminal Code after being found to have surreptitiously taken photographs of two adolescent male hockey players, whom he coached, dressed only in their underwear, in arena dressing rooms. In convicting Mr. Downes, the trial judge found that an arena dressing room was a “place in which a person can reasonably be expected to be nude”, pursuant to the definition of the offence as enumerated in s. 162(1)(a).
Mr. Downes appealed his conviction to the Court of Appeal for British Columbia. There, a majority of the Court upheld the appeal and granted a new trial on the basis that the trial judge had found that nudity was expected “at some time” in the dressing rooms in question, but did not address whether nudity was expected at the time the photos were taken. They found that such contemporaneity was necessary to ground the offence, otherwise conduct that was not engaged in for the purpose of, nor resulted in, the observing or recording of nudity or sexual activity would be criminalized as a sexual offence under the section.
The minority opinion of the Court of Appeal for British Columbia would have dismissed the appeal, noting that the Criminal Code does not speak to a requirement for the expectation of nudity to be contemporaneous with the observations or recordings being made by the accused.
The Crown appealed the Supreme Court of Canada as of right.
The respondents, Matthew James Johnston and Cody Rae Haevischer, were convicted at of six counts of first-degree murder and one count of conspiracy to commit murder at trial. They applied for a stay of proceedings under section 24(1) of the Charter alleging that their pretrial custody conditions as well as police misconduct during the initial investigation constituted an abuse of process. The Crown brought an application for a summary dismissal of the application without an evidentiary hearing. Following a Vukelich hearing, the trial judge granted the Crown’s application and declined to hold a full evidentiary hearing, finding that the circumstances of the offence were too serious to warrant a stay of proceedings. In 2021, the Court of Appeal for British Columbia dismissed seven grounds of appeal but allowed one, finding that the trial judge erred in summarily dismissing the applications for a stay of proceedings and that an evidentiary hearing was necessary. The Court of Appeal for British Columbia quashed the convictions, affirmed the verdicts of guilt, and ordered an evidentiary hearing on allegations of abuse of process. The Supreme Court of Canada granted leave to appeal.
At trial, Mr. McColman brought an application under s. 9 of the Charter, alleging that the traffic stop was unlawful. The arresting officers conceded that there was nothing unusual about Mr. McColman’s driving and relied on the power to conduct random sobriety checks under s. 48(1) of the Highway Traffic Act. The trial judge agreed, Mr. McColman was convicted of impaired driving and appealed.
The Summary Conviction Appeal judge held that the trial judge erred in dismissing the Charter application - there was no statutory authority under the Highway Traffic Act for police to conduct a random sobriety check on private property, nor did the power exist at common law. The Summary Conviction Appeal excluded the breath samples under s. 24(2) and entered an acquittal.
The Crown appealed to the Court of Appeal for Ontario, where a majority of the Court upheld the decision of the Summary Conviction Appeal Judge, finding that neither the Highway Traffic Act nor the common law authorized the police conduct in this case. The evidence was properly excluded under s. 24(2) – the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment overrode the public interest in the admission of the evidence.
The Crown applied for and was granted leave to the Supreme Court of Canada.
The issues in this case include: whether there exists any statutory or common law authority to permit the police to conduct a random sobriety check after a person has exited the highway; the correct approach to the statutory interpretation of public welfare legislation; the role of the common law to fill gaps in the legislation under the ancillary powers doctrine and finally the approach to good faith Charter breaches when considering the exclusion of evidence under s. 24(2)
At around 12:30 a.m. on March 26, 2016, police on general patrol in the area of the Thessalon Frist Nation in Northern Ontario saw a utility terrain vehicle (or UTV) parked outside a restaurant and gas station. When it appeared the UTV was about to exit the parking lot, police decided to conduct a sobriety check of the driver and turned around to follow the UTV. Approximately 200 metres down the road – less than one minute of unremarkable driving – the UTV turned into the driveway of a home – the home of the driver’s parents. The police officers followed and activated their lights. On approaching the UTV, police observed signs of impairment and arrested Mr. McColman for impaired driving. At the station, he provided two breath samples, both of which were over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.
At trial, Mr. McColman brought an application under s. 9 of the Charter, alleging that the traffic stop was unlawful. The arresting officers conceded that there was nothing unusual about Mr. McColman’s driving and relied on the power to conduct random sobriety checks under s. 48(1) of the Highway Traffic Act. The trial judge agreed, Mr. McColman was convicted of impaired driving and appealed.
The Summary Conviction Appeal judge held that the trial judge erred in dismissing the Charter application - there was no statutory authority under the Highway Traffic Act for police to conduct a random sobriety check on private property, nor did the power exist at common law. The Summary Conviction Appeal excluded the breath samples under s. 24(2) and entered an acquittal.
The Crown appealed to the Court of Appeal for Ontario, where a majority of the Court upheld the decision of the Summary Conviction Appeal Judge, finding that neither the Highway Traffic Act nor the common law authorized the police conduct in this case. The evidence was properly excluded under s. 24(2) – the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment overrode the public interest in the admission of the evidence.
The Crown applied for and was granted leave to the Supreme Court of Canada.
The issues in this case include: whether there exists any statutory or common law authority to permit the police to conduct a random sobriety check after a person has exited the highway; the correct approach to the statutory interpretation of public welfare legislation; the role of the common law to fill gaps in the legislation under the ancillary powers doctrine and finally the approach to good faith Charter breaches when considering the exclusion of evidence under s. 24(2)
L’intimé M. Breault a refusé à plusieurs reprises de fournir un échantillon d’haleine à un agent de la paix qui lui ordonne de le faire, alors qu’il n’est pas en possession d’un appareil de détection approuvé.
En première instance, le juge Simard de la Cour municipale de la ville de Québec déclare l’intimé coupable. Le juge détermine que le délai de quatre minutes entre l’ordre et le refus de l’intimé est conforme à la norme d’immédiateté de l’alinéa 254(2)b)
Siégeant en appel, le juge Pronovost de la Cour supérieure confirme le verdict de culpabilité.
Puis, la Cour d’appel du Québec accepte d’étudier le dossier par l’entremise d’une formation de cinq juges. Elle acquitte l’intimé.
Selon son interprétation, la norme d’immédiateté de l’alinéa 254(2)b) C.cr. signifie que le policier doit avoir accès immédiatement à l’ADA lorsqu’il formule l’ordre.
Elle indique notamment qu’ « "immédiatement" signifie "immédiatement" lorsqu’il est question d’échantillons d’haleine » .
Pour que l’ordre soit valide, le policier doit donc avoir « immédiatement accès »à l’ADA au moment de formuler la demande au conducteur soupçonné de conduire en état d’ébriété.
Sa majesté fait l’appel devant la cour suprême du Canada.
There is a section 486.4 publication ban involving this matter.
Mr. Kerry Alexander Nahanee pleaded guilty to two counts of sexual assault. The appellant and Crown made sentencing submissions, which were not joint submissions. The Crown sought a 4-6 year global sentence. The appellant sought a 3 to 3.5 year global sentence. The sentencing judge did not agree with the sentencing submissions, and imposed a sentence of eight years’ imprisonment. The sentencing judge did not alert counsel that she was intending to exceed the Crown’s proposed sentence.
Mr. Nahanee appealed his sentence to the Court of Appeal for British Columbia on the basis that the judge erred in (1) failing to alert counsel that she planned to impose a sentence in excess of that sought by Crown counsel, (2) imposing a demonstrably unfit sentence, (3) incorrectly applying statutory and common law aggravating factors, and (4) failing to properly consider his Aboriginal heritage.
The Court of Appeal dismissed the appeal. The Court of Appeal found that because the guilty plea was not accompanied by a joint submission on sentencing, the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than that sought by the Crown. The sentence was in line with those imposed on offenders who sexually assaulted children while in positions of trust. The judge was permitted to consider the appellant’s lack of insight or ongoing risk to the public, the victims’ ages, and the age differential between the victims and appellant when determining the sentence, and she properly considered whether the appellant’s Indigenous heritage attenuated his culpability.
Mr. Nahanee was granted leave to appeal to the Supreme Court of Canada.
On June 9, 2017, a 19-year-old Mr. Ocean Storm Hilbach covered his face with his shirt and entered an Edmonton Convenience store with a sawed-off rifle, pointing it at two employees and demanding cash. He and his 13-year-old accomplice escaped with $290 in lottery tickets. Mr. Hilbach plead guilty and was convicted of robbery with a prohibited firearm, contrary to section 344(1)(a)(i) of the Criminal code.
In September of 2016, a 53-year-old Mr. Curtis Zwozdesky drove the getaway vehicle for his accomplices who robbed two convenience stores. Mr. Zwozdesky plead guilty and was convicted as a party to the offences of robbery, and robbery with a firearm contrary to section 344(1)(a.1) and 344(1)(b) of the Criminal Code.
After pleading guilty, both Mr. Hilbach and Mr. Zwozdesky filed charter applications seeking declarations that the mandatory minimums of 5-years and 4-years under section 344 were of no force or effect, as they amounted to cruel and unusual punishment contrary to section 12 of the Charter.
Both sentencing judges agreed and granted the declarations of unconstitutionality.
In Mr. Hilbach’s case the sentencing judge relied on a Gladue report which outlined a family history of residential school system attendance, violence, abuse, chronic unemployment, and substance abuse. Mr. Hilbach was sentenced to 2-years less 1-day, well below the mandatory minimum of 5 years for a first offence.
In Mr. Zwozdesky’s case, the sentencing Judge took into consideration the individual circumstances of the offender, including a lack of a criminal record, late age, health issues and substance abuse. Nevertheless, the sentencing Judge found that the mandatory minimum was appropriate for the offences before the Court and Mr. Zwozdesky received a sentence of 4-years for both offences.
The Crown appealed both sentencing decisions, arguing that the mandatory minimums are consistent with the provisions of the Charter and accordingly, the sentences imposed were unfit. The appeals of Mr. Hilbach and Mr. Zwozdesky were heard together by the Court of Appeal of Alberta.
A majority of the Court of Appeal of Alberta agreed with the sentencing Judges and found that the mandatory minimum sentences set out in section 344(1)(a)(i) and section 344(a.1) were unconstitutional and of no force or effect. The Court of Appeal of Alberta dismissed the appeal against Mr. Zwozdesky’s sentence but would have increased Mr. Hilbachs sentence to 3.5-years. Justice Wakeling dissented and would have allowed the crown appeals and set aside the declarations of unconstitutionality.
The Crown appealed to the Supreme Court of Canada and leave was granted.
This case deals with the application of the Charter to Canadian armed forces members stationed abroad. The Appellant, Corporal McGregor, was a Canadian Armed Forces member stationed in Washington DC and living in nearby Alexandria, Virginia. While he was stationed there, a fellow Canadian Armed Forces member discovered an audio recording device hidden in her residence and made a report to the Canadian Forces National Investigation Service (CFNIS). Cst. McGregor became the target of the investigation, and a warrant was sought for his residence to be searched.
The CFNIS sought the assistance of local authorities to obtain a warrant. Alexandria police officers obtained a warrant from the Virginia court authorizing the search of his home, seizure of his devices, and analysis of those seized devices. Virginia law permits the search of devices found within a residence under the authority of the warrant to search the residence.
The search of the devices began with a “triage” process inside the home. Officers found evidence of the suspected offences, and other offences including sexual assault. All seized devices were returned to the Virginia State court before being sent to Canada, where CFNIS obtained Canadian warrants to conduct further analyses.
At his trial before the Canada Court Martial, Constable McGregor argued that the search of his devices violated his section 8 protection against unreasonable search and seizure. Relying on Vu, he contended that officers should have obtained a separate warrant before searching his devices.
The Military Judge ruled that the Charter did not apply to the search of his residence, because CFNIS lacked the power to obtain its own warrant to search the premises. Even if the Charter did apply, the court ruled that it would not have found a section 8 violation and would not have excluded the evidence under 24(2).
Cst. McGregor appealed this decision to the Court Martial Appeal Court of Canada (CMAC). The CMAC dismissed the appeal, finding that the Military Judge was correct in concluding that the Charter did not have extra-territorial application in this case.
However, the CMAC held that even where the Charter does not apply, the military court should consider whether the admission of the evidence would affect the Applicant’s right to a fair trial. The Appeal Court found that admitting the evidence would not undermine the Applicant’s right to a fair trial in this case. In admitting the evidence, the CMAC noted that even in Canada, a single warrant may authorize both the seizure and the search of the electronic devices. Furthermore, the “triage” search was not conducted in an unreasonable manner. The triage search was conducted with the aim of finding evidence of the specific offences alleged. Once officers found evidence of other offences, those devices were set aside until a Canadian warrant could be secured.
The appeal was denied, and his convictions upheld. The SCC granted leave to appeal the decision of the CMAC.
The Appellant was accused of a number of offences involving the alleged abuse of his wife. Once the evidence was concluded in his trial, and the trial judge was to commence his deliberations, the defence brought an 11(b) application for unreasonable delay. Prior to releasing his ruling, and while still contemplating the outcome of the trial proper, the trial judge heard the 11(b) application. The trial judge agreed with the defence and granted the application. The appellant’s charges were stayed. In the written decision granting the 11(b) stay, the trial judge advised that he had completed his decision on the trial proper and placed it under seal pending the outcome of any appeal of the stay order.
The Crown appealed the 11(b) stay of proceedings to The Ontario Court of Appeal. The Crown argued that, following the Supreme Court’s 2020 decision in R. v. KGK, the trial judge was not entitled to rely on any alleged delay between the end of the trial evidence and the release of the stay application decision. The Ontario Court of Appeal unanimously agreed with the Crown, and ordered the matter return to the trial judge in order to release his decision on the trial proper.
In 2014, York Regional Police in Ontario established an undercover investigation known as Project Raphael, the objective of which was to reduce the demand for sexual services from minors in the region. The investigation involved officers posting fake advertisements in the “escorts” section of Backpage.com, an online classified advertising website. When an individual would respond to an ad, an undercover officer, posing as an escort, would disclose the fact that “she” was underage. If conversation continued, an arrangement for sexual services and price was made, and the individual would be directed to a hotel room for the transaction to occur. Upon arrival, the individuals were then arrested and charged.
Temitope Dare, Erhard Haniffa, Muhammad Jaffer, and Cory Ramelson were all charged with child luring and communicating to obtain sexual services from a minor as a result of Project Raphael. Three of the four individuals were convicted at trial, and their appeals were dismissed at the Court of Appeal for Ontario. Mr. Ramelson’s matters were stayed at the court of first instance, but this stay was set aside on appeal.
Dare, Haniffa, and Jaffer sought and were granted leave to appeal to the Supreme Court of Canada. Mr. Ramelson appealed as of right. In all four appeals, the Supreme Court will consider the proper analysis to be applied in determining whether entrapped a person within a virtual space like the internet.
The Supreme Court of Canada is now hearing all four appeals together.
Mr. Jaffer was found guilty by a jury of (1) child luring under 18 (s. 172.1(2) of the Criminal Code, R.S.C. 1985, c. C 46), and communicating to obtain for consideration the sexual services of a person under 18 (s. 212(4) (now s. 286.1(2))). The sentencing judge stayed the S. 286.1 charge pursuant to Kineapple. Mr. Jaffer’s defence of entrapment, a post-trial motion brought seeking a stay of proceedings, was dismissed at trial. His appeal of that dismissal was unanimously dismissed by the Ontario Court of Appeal.
Similarly, Mr. Dare was found guilty of three offences at his trial: child luring under 18 ss. 172.1(1)(a)), child luring under 16172.1(1)(b), and communicating to obtain sexual services from a minor. 286.1(2). His post-trial entrapment stay application was also dismissed at trial, and his appeal at the Ontario Court of Appeal was dismissed.
What follows is a presentation of the facts of each of the companion cases under appeal.
Haniffa v the Queen
Mr. Haniffa was convicted at trial, but in a post-trial application argued that his charges should be stayed due to entrapment. The trial judge dismissed the application.
The issue on appeal was whether Mr. Haniffa was entrapped by reason of the police providing an opportunity to commit crimes without first having a reasonable suspicion that the appellants were engaged in criminal activity, or pursuant to a bone fide police inquiry. Justice Jurianz found that, applying the Supreme Court’s decision in Ahmad, the law of entrapment had not changed for virtual spaces. The appellants argued that the investigation was no more than random virtue testing. Justice Jurianz disagreed.
Mr. Ramelson
At the court of first instance, Mr. Ramelson argued that he was entrapped by police to commit the offences charged, and made an application for a stay of proceedings accordingly. The trial judge dismissed the application, but after the dismissal, The Supreme Court of Canada’s decision in Ahmed was released. The trial judge invited the parties back to make further submissions on the issue of entrapment, and this time, the trial judge found that the police actions constituted entrapment and entered a stay of proceedings.
The Crown appealed.
A unanimous panel at the Court of Appeal for Ontario allowed the appeal.
Mr. Ramelson appealed to the Supreme Court of Canada.
The Appellant, Mr. Badger, was charged with the attempted murder of Mr. Ray. The two knew each other because the Appellant was friends with Mr. Ray’s sister. The Appellant was at the Ray residence the night of the shooting but left and said that he would return later. Less than ten minutes later, Mr. Ray responded to a knock at the door and two men wearing masks entered the residence. One of the two masked men pointed a double barrel shotgun at Mr. Ray and a struggle ensued. During the struggle, Mr. Ray was shot.
Mr. Ray’s mother called 911 and Mr. Ray is heard saying on that call that “Jake from State Farm”, a nickname for the Appellant, was the one who shot him. The Appellant was found nearby the residence in apparent distress, and was arrested. Mr. Ray, while being taken into the ambulance, pointed to the Appellant, and claimed that he was the one who shot him.
Mr. Ray was intoxicated at the time of these utterances.
The main issue at trial was the identity of the shooter. Mr. Ray changed his story and testified at trial that he did not know who shot him. He testified that he had a faulty memory from that night. No one else was able to identify the shooter.
The admissibility of Mr. Ray’s two spontaneous utterances pointing the finger at the Appellant was challenged by the defence. The trial judge found that the spontaneous utterances were admissible for the truth of their contents. He then held that it was the Appellant who shot Mr. Ray, convicting him of aggravated assault but acquitting him of attempted murder.
Mr. Badger appealed his conviction to the Court of Appeal for Saskatchewan on three grounds:
The trial judge erred in admitting Mr. Ray’s spontaneous utterances into evidence
The trial judge erred in assessing his alibi evidence, and
The trial judge erred in his assessment of the identification evidence.
The majority for the Court of Appeal for Saskatchewan upheld the conviction and dismissed the appeal on all three grounds.
On the first ground, the Court of Appeal found that the trial judge applied the correct test, carefully considered all of the circumstances, and determined the utterances were admissible at the trial.
On the second ground, the Court of Appeal found that there was no error in the trial judge’s treatment of the alibi evidence.
On the last ground, the Court of Appeal found that the trial judge did not err in his assessment of the identification evidence.
Justice Kalmakoff of the Court of Appeal for Saskatchewan dissented. He would have ordered a new trial based on the third ground, namely, the assessment of the identification evidence. He found the trial judge’s reasons did not subject the identification evidence to the scrutiny the law requires and that the verdict was tainted.
At the Supreme Court of Canada, the Appellant asked for a new trial. The sole issue on appeal is whether the trial judge made a legal error in his assessment of the identification evidence.
The respondent was convicted by a jury of second degree murder for fatally stabbing the deceased outside of a bar. The defence at trial was self defence of another person. At the pre charge conference, both the respondent and the Crown had agreed that there was no air of reality to a defence of provocation, focusing on a “cooling off period” during the interaction and other factual circumstances. The trial judge accordingly ruled that the defence should not be put to the jury.
The respondent appealed his conviction, alleging, amongst other grounds, that the trial judge had erred in failing to open the defence of provocation. A majority of the Court of Appeal for Ontario agreed that provocation should have been put to the jury, set aside the conviction, and ordered a new trial. In the majority’s view, two discrete incidents could constitute as the potential provocative act. There was no “cooling off period” between the second act and the stabbing. The doubt expressed at the pre charge conference ought to have been resolved in favour of the accused. While it is plausible on this record that various factual circumstances negated the subjective elements of provocation, such as the respondent arming himself with a knife, it nevertheless remained open for the jury to conclude otherwise.
In dissent, MacPherson J.A. would have upheld the conviction. In his view, the respondent, the Crown, and the trial judge were correct in concluding there was no air of reality to the provocation and the subjective elements of provocation were not met on the facts. Moreover, it would run contrary to the respondent’s limited right to control his defence and runs the risk of confusing the jury, as he explicitly chose to defend the charge throughout the trial by way of self defence of another person and not provocation.
The respondent appealed to the Supreme Court of Canada as of right.
Following a judge alone trial in the Provincial Court of Nova Scotia, Mr. Gerrard was convicted of thirteen charges related to assaulting, threatening (including with firearms), and damaging the property of his common law spouse over a period of almost eight years. Applying the principles set out in the Supreme Court of Canada’s decision in R. v. W.(D.), the trial judge concluded that the complainant was not motivated to lie or embellish her testimony, nor did the evidence give rise to such an inference. The trial judge also rejected Mr. Gerrard’s evidence that the complainant was lying and that she went to police in retaliation, and concluded that his evidence did not raise a reasonable doubt. Mr. Gerrard was sentenced to thirty months jail followed by two by years probation (amended to thirty months jail, no probation, after the trial judge realized it was an illegal sentence).
A majority of the Nova Scotia Court of Appeal dismissed Mr. Gerrard’s appeal from conviction. In the majority’s view, the trial judge did not misapply W.(D.) by considering the complainant’s evidence in isolation, nor did she shift the burden of proof by choosing which versions of events she preferred. The majority also held that the trial judge did not err in assessing the complainant’s credibility. The Court did allow, however, the appeal from sentence, and substituted a custodial sentence of thirty months. The trial judge erred by imposing an illegal sentence and then changing it; she was functus officio when she attempted to do so.
In dissent, Bryson J.A. would have allowed the appeal from conviction and ordered a new trial. In his view, the trial judge relied on negative credibility findings to conclude that the complainant’s evidence was reliable, and assessed her evidence in isolation, concluding it raised no reasonable doubt, thereby shifting the burden of proof to Mr. Gerrard.
Mr. Gerrard appealed to the Supreme Court of Canada as of right.
There is a section 486.4 publication ban in this matter.
Mr. Hills, a person of Métis heritage, pled guilty to four offences from an incident in May 2014 where he fired several shots with his rifle at an occupied vehicle and into an occupied family residence.
One of the offences he pled guilty to is the intentional discharging of a firearm into or at a place, knowing or being reckless as to whether another person is present. This offence carries a four-year mandatory minimum sentence.
At his sentencing, Mr. Hills persuaded the court that the mandatory minimum sentence was unconstitutional because it is cruel and unusual punishment contrary to section 12 of the Charter of Rights and Freedoms and could not be saved by section 1. The sentencing judge therefore found the four-year mandatory minimum sentence was of no force and effect, and instead imposed a sentence of three and a half years.
The Crown appealed. A unanimous panel of the Court of Appeal of Alberta overturned the sentencing judge’s decision, finding instead that the four-year mandatory minimum sentence is not cruel and unusual punishment, and therefore imposed a four-year sentence on Mr. Hills.
Mr. Hills obtained leave to appeal to the Supreme Court of Canada. He presents two issues on this appeal: whether the four-year mandatory minimum sentence is unconstitutional, and whether the Court of Appeal for Alberta made an error when it failed to consider Mr. Hills’ status as a Métis person when determining his sentence.
This episode of Canada’s Court is Her Majesty versus Marc-André Boulanger. The issue in this case focuses on s. 11(b) of the Charter. Specifically, the Supreme Court of Canada considered whether two particular periods of delay, 84 and 112 days respectively are to be attributed to defense due to their conduct.
In Boulanger, an 11(b) application was brought by the defense, as a result 32 months net delay. After analyzing, although without great detail the case’s history, the lower court granted the motion for a stay of proceedings pursuant to 24(2) of the Charter. The Crown appealed to the Quebec Court of Appeal. The Court of Appeal, dismissed the appeal, coming to the same conclusion, however through different analysis. Justice Chamberland dissented, giving the Crown a right to appeal to the Supreme Court of Canada.
Suite à un procès pour des infractions qui découlent d'un episode de rage au volant, l ìntimé Daniel Brunelle est trouvé coupable de voies de fait graves, de voies de fait armées et de possession d’une arme dans un dessein dangereux.
La juge de première instance est d'avis que monsieur Brunelle n’a pas agi en légitime défense. En particulier, pour ce qui est de la seconde condition à l’ouverture de la légitime défense, elle ne croit pas l’intimé lorsqu’il affirme avoir utilisé la force dans l’optique de se défendre mais plutôt que l'intimé a riposté et s’est vengé.
La Cour d’appel du Québec accueille l’appel, casse les verdicts de culpabilité et ordonne la tenue d’un nouveau procès. Les juges majoritaires sont d’avis que la juge de première instance a erré dans l’analyse de la deuxième condition de la légitime défense. Cependant, le juge Bachand, quant à lui dissident, aurait rejeté l’appel étant d’avis qu’il n’y a pas lieu d’intervenir. Selon ce dernier juge, la question en litige est de savoir si la conclusion de la juge de première instance, selon laquelle l’intimé a agi par vengeance, trouve suffisamment appui dans la preuve et si elle est exempte d’erreur manifeste et déterminante. Il est d’avis que c’est le cas.
On the evening of January 29, 2017, the Respondent, 27-year-old Alexandre Bissonnette, left home with two firearms and ammunition, heading to the Great Mosque of Québec. On arrival, he fired at the worshippers for 2 minutes, resulting in fatalities and severe injuries. He would go on to plead guilty on 12 counts, including six of first-degree murder. At sentencing, Mr. Bissonnette challenged the constitutional validity of s. 745.51 empowering a judge to order parole ineligibility periods of 25 years for each murder, to be served consecutively,
The sentencing judge concluded the provision infringes ss. 12 and 7 of the Charter, and that the limits on the protected rights had not been shown to be justified in a free and democratic society. He found the appropriate remedy would be to “read in” a new wording that would allow a court to impose consecutive periods of less than 25 years.
Mr. Bissonnette appealed to the Quebec Court of Appeal, which unanimously held that s. 745.51 does infringes ss. 12 and 7 of the Charter. However, the Court found that the constitutional incompatibility identified by the sentencing judge goes to the very heart of the provision and that reading in is, therefore, not appropriate. It accordingly declared s. 745.51 of the Criminal Code is invalid and of no force or effect. As a result, it ordered a total period of parole ineligibility of 25 years.
This is a Crown appeal of a decision from the Court Of Appeal Of Newfoundland And Labrador allowing Mr. White’s appeal, setting aside his convictions, and ordered a new trial. In dissent, Justice Hoegg would have dismissed the appeal.
It is a case that deals with a defendant’s claim of ineffective assistance of counsel, as it relates to Counsel failing to obtain his informed instructions regarding his election of mode of trial.
The respondent was charged with aggravated assault, assault, uttering a threat, and damage to property. The Crown chose to proceed summarily on three hybrid offences, and the charge of aggravated assault entitled the accused to an election as to mode of trial. The accused's lawyer advised that the defence election was for a trial in Provincial Court. The respondent was found guilty by the trial judge. In appealing his convictions, the respondent claimed that his lawyer failed to obtain his informed instructions regarding his election of mode of trial. He claimed that he was not informed of his right to choose the mode of trial, which led to a miscarriage of justice.
The majority of the Court of Appeal found that Mr. White’s counsel did not obtain informed instructions from the accused regarding his election of mode of trial. They held that this amounted to a miscarriage of justice, and that unlike when the reliability of the verdict is questioned, where trial fairness is at issue, the accused is not required to establish further prejudice. In dissent, Justice Hoegg held that prejudice had to be proven for there to be a miscarriage of justice and a new trial ordered. She would have found that Mr. White received a fundamentally fair trial.
In 2016, Ms. Sharma pleaded guilty to importing two kilograms of cocaine. At the sentencing hearing, Ms. Sharma argued that the CDSA mandatory minimum of two years, and the restrictions on when a conditional sentence is available, or rather not available, were all unconstitutional. The sentencing judge agreed with Ms. Sharma that the two year mandatory minimum sentence under 6(3)(a.1) of the CDSA violated section 12 of the Charter and could not be saved under section 1. Because of this finding, the sentencing judge declined to address the constitutional challenge to the conditional sentencing provisions under the Criminal Code. Ms. Sharma was sentenced to 18 months incarceration, less pre-trial custody. Ms. Sharma is an indegenous woman.
The Court of Appeal for Ontario considered the constitutional challenge to the Criminal Code provisions. The Court of Appeal found that sections 742.1(c) and 742.1(e)(ii) of the Criminal Code infringed both section 7 and 15(1) of the Charter, and could not be saved under section 1. The Court of Appeal held an appropriate sentence was a conditional sentence of 24 months less one day. But because at this point Ms. Sharma had completed her custodial sentence, the Court of Appeal substituted a sentence of time served.
On September 7, 2017, Mr. Pope, with Mr. Collins, had been driving around in a taxi to various locations in the City from 11:00 a.m. until the mid-afternoon. When they arrived at the scene, Mr. Pope was in the front passenger seat and Mr. Collins in the back. A man, who was in a nearby van, approached the taxi and passed some money to Mr. Collins through the window. Mr. Pope told Mr. Collins that he owed him $60. This led to an altercation. Both men got out of the taxi and began to fight. Both were “throwing punches” until Mr. Collins fell to the ground clutching his stomach. While there were witnesses, no one saw the knife or exactly what happened. Mr. Pope returned to the taxi and told the driver to “run him over”. Instead, the taxi drove off with Mr. Pope, leaving Mr. Collins lying in the street.
One of the witnesses, a registered nurse, lent assistance to Mr. Collins, who had been stabbed once in the lower abdomen. The wound, which was about eleven centimetres deep, punctured the abdominal aorta. Mr. Collins was transported to hospital, but died from loss of blood. Mr. Pope was charged with second degree murder for which manslaughter is an included offence.
Following a trial by jury, the respondent, Craig Pope, was convicted of second degree murder. A majority of the Court of Appeal allowed Mr. Pope’s appeal from conviction and ordered a new trial. In its view, the trial judge erred by failing to properly instruct the jury on the included offence of manslaughter. The majority was of the view that the difference between murder and manslaughter, particularly regarding the question of intent, was not explained with sufficient clarity.
In dissent, Goodridge J.A. would have dismissed the appeal. The crown appealed to the Supreme Court of Canada as of right.
On the evening of January 29, 2017, the Respondent, 27-year-old Alexandre Bissonnette, left home with two firearms and ammunition, heading to the Great Mosque of Québec. On arrival, he fired at the worshippers for 2 minutes, resulting in fatalities and severe injuries. He would go on to plead guilty on 12 counts, including six of first-degree murder. At sentencing, Mr. Bissonnette challenged the constitutional validity of s. 745.51 empowering a judge to order parole ineligibility periods of 25 years for each murder, to be served consecutively,
The sentencing judge concluded the provision infringes ss. 12 and 7 of the Charter, and that the limits on the protected rights had not been shown to be justified in a free and democratic society. He found the appropriate remedy would be to “read in” a new wording that would allow a court to impose consecutive periods of less than 25 years.
Mr. Bissonnette appealed to the Quebec Court of Appeal, which unanimously held that s. 745.51 does infringes ss. 12 and 7 of the Charter. However, the Court found that the constitutional incompatibility identified by the sentencing judge goes to the very heart of the provision and that reading in is, therefore, not appropriate. It accordingly declared s. 745.51 of the Criminal Code is invalid and of no force or effect. As a result, it ordered a total period of parole ineligibility of 25 years.
This is a Crown appeal of a decision from the Court Of Appeal Of Newfoundland And Labrador allowing Mr. White’s appeal, setting aside his convictions, and ordered a new trial. In dissent, Justice Hoegg would have dismissed the appeal.
It is a case that deals with a defendant’s claim of ineffective assistance of counsel, as it relates to Counsel failing to obtain his informed instructions regarding his election of mode of trial.
The respondent was charged with aggravated assault, assault, uttering a threat, and damage to property. The Crown chose to proceed summarily on three hybrid offences, and the charge of aggravated assault entitled the accused to an election as to mode of trial. The accused's lawyer advised that the defence election was for a trial in Provincial Court. The respondent was found guilty by the trial judge. In appealing his convictions, the respondent claimed that his lawyer failed to obtain his informed instructions regarding his election of mode of trial. He claimed that he was not informed of his right to choose the mode of trial, which led to a miscarriage of justice.
The majority of the Court of Appeal found that Mr. White’s counsel did not obtain informed instructions from the accused regarding his election of mode of trial. They held that this amounted to a miscarriage of justice, and that unlike when the reliability of the verdict is questioned, where trial fairness is at issue, the accused is not required to establish further prejudice. In dissent, Justice Hoegg held that prejudice had to be proven for there to be a miscarriage of justice and a new trial ordered. She would have found that Mr. White received a fundamentally fair trial.
Suite à un procès pour des infractions qui découlent d'un episode de rage au volant, l ìntimé Daniel Brunelle est trouvé coupable de voies de fait graves, de voies de fait armées et de possession d’une arme dans un dessein dangereux.
La juge de première instance est d'avis que monsieur Brunelle n’a pas agi en légitime défense. En particulier, pour ce qui est de la seconde condition à l’ouverture de la légitime défense, elle ne croit pas l’intimé lorsqu’il affirme avoir utilisé la force dans l’optique de se défendre mais plutôt que l'intimé a riposté et s’est vengé.
La Cour d’appel du Québec accueille l’appel, casse les verdicts de culpabilité et ordonne la tenue d’un nouveau procès. Les juges majoritaires sont d’avis que la juge de première instance a erré dans l’analyse de la deuxième condition de la légitime défense. Cependant, le juge Bachand, quant à lui dissident, aurait rejeté l’appel étant d’avis qu’il n’y a pas lieu d’intervenir. Selon ce dernier juge, la question en litige est de savoir si la conclusion de la juge de première instance, selon laquelle l’intimé a agi par vengeance, trouve suffisamment appui dans la preuve et si elle est exempte d’erreur manifeste et déterminante. Il est d’avis que c’est le cas.
In April of 2014, police obtained and executed a search warrant on a residence in Lethbridge, Alberta, after receiving information from two informants that two individuals were selling large quantities of cocaine from said residence. During the search, Mr. Ali was found in the premises, arrested and searched. He was found to be in possession of a large amount of cash, a cell phone, and small bag of marijuana. He was brought to the station and subsequently strip searched, which revealed three white baggies containing cocaine secreted in his “butt crack area”.
At trial, a voir dire was held, during which Mr. Ali argued, in part, that the strip search was not justified. The trial judge rejected this argument and admitted the evidence. Mr. Ali was ultimately convicted of possession of cocaine for the purposes of trafficking.
The sole issue on appeal was whether Mr. Ali was unjustifiably subjected to a strip search on his arrest, thus violating his s. 8 Charter rights.
A majority of the Court of Appeal of Alberta held that there was sufficient evidence to justify the trial judge’s conclusion that there were reasonable and probable grounds for the strip search based on the test in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, and dismissed the appeal. This conclusion was based on police surveillance, the confidential informants indicating there was drug trafficking occurring at the residence to be searched, that someone fitting the description of Mr. Ali was involved, and the testimony of an officer that Mr. Ali was reaching towards his “nether region” and the back of his pants during arrest.
Justice Veldhuis dissented and would have allowed the appeal, arguing that while the officer subjectively believed Mr. Ali had secreted drugs on his person, there was insufficient objective evidence to establish reasonable and probable grounds that drugs would be found, resulting in a breach of s. 8 of the Charter.
Mr. Ali appealed to the Supreme Court of Canada as of right.
Her Majesty the Queen v. Mélanie Ste-Marie, et al. is a Crown appeal from a decision of the Québec Court of Appeal, where the appeal court stayed the proceedings following a breach of s. 11(b) of the Charter. Part of this hearing is in French.
The accused, now the Respondents before the Supreme Court, were charged with conspiracy to launder proceeds of crime, laundering proceeds of crime, and commission of an offence for a criminal organization. In the Court of Québec, the respondents had moved for a stay of proceedings for unreasonable delay under s. 11(b). The Court of Québec estimated that the total delay was 77 months. The Court found that s. 11(b) of the Charter had been infringed, but declined to stay the proceedings. The Respondents were ultimately convicted.
They appealed their convictions to the Québec Court of Appeal. The appeal court was asked to determine whether the Court of Québec had erred in declining to stay the proceedings after finding unreasonable delay.
The Court of Appeal allowed the respondents’ appeals, quashed the convictions and ordered a stay of proceedings. The Court of Appeal found that the Court of Québec had erred in assuming that the appropriate remedy following a breach of s. 11(b) includes a measure of discretion that allows a judge to decline a stay of proceedings. The Court of Appeal held that a long line of jurisprudence since R. v. Rahey, [1987] 1 SCR 588 has held that the only available remedy for a finding of unreasonable delay is a stay of proceedings. Second, the Court of Appeal held that it was an error for the Court of Québec to consider the issue of prejudice as a factor relevant to the determination of remedy.
The Crown has appealed to the Supreme Court of Canada after being granted leave to appeal by the Court.
The appellants, Mr. Beaver and his co-accused, Mr. Lambert, were convicted of manslaughter in relation to the death of their roommate. After being initially detained by officers at the scene under a non-existent act, they were arrested by detectives for murder two hours later at the police station. Following a lengthy interview, the co-accused, Mr. Lambert, confessed to their involvement in the death of the roommate; when confronted with the confession, Mr. Beaver admitted his participation as well.
At trial, Mr. Beaver and Mr. Lambert sought a stay of proceedings or, alternatively, the exclusion of all evidence which derived from alleged violations of his rights protected by ss. 7, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Mr. Beaver and Mr. Lambert also alleged that the detective who arrested him at the station did not have reasonable and probable grounds to do so. The Crown conceded that the appellants’ Charter rights had been breached when they were detained under a non-existent law, but argued that the arrest at the station constituted a “fresh start” which insulated his confession from the previous breaches. The trial judge dismissed the application, finding that the police had reasonable and probable grounds to arrest Mr. Beaver and Mr. Lambert for murder at the police station, and that the arrest constituted a “fresh start” which cured the previous breaches. The trial judge concluded that the confessions had not been tainted by the breaches. Nevertheless, the trial judge conducted a s. 24(2) analysis and concluded that the confessions would have been admitted.
Mr. Beaver and Mr. Lambert appealed to the Court of Appeal of Alberta. All three members of the Court of Appeal unanimously dismissed Mr. Beaver’s appeal. The Court held that the trial judge properly found that sufficient grounds existed for the arrest of Mr. Beaver and Mr. Lambert based on the information the police had at the time and that the trial judge did not err in finding that the confessions were not tainted by the Charter breaches, that Mr. Beaver’s confession was voluntary and by allowing Mr. Beaver’s and Mr. Lambert’s confession to be admitted into evidence.
Mr. Beaver and Mr. Lambert were granted leave to appeal to the Supreme Court of Canada
Following a jury trial, the respondent, William Victor Schneider, was convicted of second-degree murder contrary to s. 235(1), and following the close of the Crown’s case, plead guilty to interfering with a body after death, contrary to s, 182(b) of the Criminal Code.
Before the Court of Appeal for British Columbia, the appellant submitted that the murder conviction should be set aside and a new trial ordered, arguing, among other things, that the trial judge erred in admitting statements made during a telephone conversation overheard by his brother. A majority of the Court of Appeal allowed the appeal and ordered a new trial on the count of second-degree murder. The majority found that the utterances were not logically relevant, as they lacked sufficient context for the jury to be able to determine their meaning.
One justice of the Court of Appeal dissented. The Crown appealed to the Supreme Court of Canada, as of right
There is a S. 486.4 publication ban involving this matter.
In August 2013, Mr. Alan Teck Meng Lai was charged with various sexual offences. In November 2017, Mr. Lai sought to stay his charges after alleging a breach of his s. 11 (b) Charter rights to be tried within a reasonable time.
At trial the judge found that there was a delay in the proceeding which totaled 57 months. The judge subtracted 25 months from this total. These months were considered exceptional events because Mr. Lai re-elected. The trial judge applied the transitional exception and dismissed the s. 11(b) application. Mr. Lai was found guilty.
Mr. Lai appealed the s. 11(b) ruling to the Court of Appeal for British Columbia. The majority of the Court of Appeal dismissed the appeal. The majority of the Court of Appeal found that the trial judge had erred by excluding delay caused by re-election. But the Court applied the transitional case exception
In the dissent, Butler J.A. found that the transitional case exception did not apply and would have allowed the appeal. Mr. Lai appealed to the Supreme Court as of right.
The respondent, Mr. Goforth, and his wife, Ms. Goforth, were jointly charged with the second-degree murder of their three-year-old foster child and with unlawfully causing bodily harm to a second two-year-old foster child. The predicate offence underlying both charges was failing to provide the necessaries of life – primarily as a result of starvation and neglect – contrary to s. 215 of the Criminal Code. At trial, Mr. Goforth argued that Ms. Goforth was the primary provider of day-to-day childcare responsibilities and that he spent very little time with the children. He was therefore unaware that they were ill.
A jury convicted Ms. Goforth of second-degree murder of the older child. The jury acquitted Mr. Goforth of murder but convicted him of the lesser and included offence of manslaughter. Both Mr. and Ms. Goforth were convicted of unlawfully causing bodily harm to the younger child.
Mr. and Ms. Goforth appealed to the Court of Appeal for Saskatchewan. All three members of the Court of Appeal dismissed Ms. Goforth’s conviction appeal, but a majority allowed Mr. Goforth’s conviction appeal, set aside his convictions, and ordered a new trial. The majority concluded that, in the trial judge’s jury instructions, she made several material legal errors pertaining to the mens rea of s. 215 and failed to adequately relate the evidence at trial to the mens rea of s. 215. In dissent, Caldwell J.A. would have dismissed the appeal and upheld the convictions.
The Crown appealed to the Supreme Court of Canada as of right.
The respondent, Nigel Lafrance, was charged with first-degree murder. In March of 2015, shortly after the killing, police obtained and executed a search warrant on Mr. Lafrance’s home. During this search, police asked Mr. Lafrance to voluntarily provide a statement, to which he agreed. At this time, he was not arrested, nor was he provided his Charter rights. After this interview, Mr. Lafrance consented to providing police with fingerprints, DNA and blood samples, a cell phone and several items of clothing. In April of 2015, Mr. Lafrance was arrested for murder, at which time he was provided his Charter rights and was given an opportunity to consult with counsel. The respondent spoke to a lawyer, was subsequently interviewed, and ultimately confessed to killing the victim.
A voir dire was held, during which Mr. Lafrance sought exclusion of the evidence obtained from both the March and April 2015 interviews by alleging breaches of his ss. 8, 9 & 10(b) Charter rights. The trial judge dismissed the application, finding that the accused had not been unlawfully detained during the first interview, that the statements made during both interviews had been voluntary, and that the various searches of the respondent’s property were lawful. Mr. Lafrance was ultimately tried by jury and convicted of the lesser included offence of second-degree murder.
Mr. Lafrance appealed his conviction to the Court of Appeal of Alberta, the sole issue being whether the trial judge had engaged in reviewable error by concluding that none of Mr. Lafrance’s Charter rights had been breached. The appellate court concluded that Mr. Lafrance’s s. 10(b) rights, both to be informed of his right to counsel, and to exercise that right, had been breached during both police interviews. Further, the court held that the evidence obtained as a result of the interviews should have been excluded under s. 24(2) of the Charter. Ultimately, a majority of the Court of Appeal of Alberta allowed the appeal and remitted the matter for retrial on the charge of second-degree murder, subject to limits on evidence to be tendered by the Crown.
Justice Wakeling dissented and would have dismissed the appeal.
The Crown appealed the Court of Appeal of Alberta’s decision to the Supreme Court of Canada as of right.
The respondent, Patrick Dussault, was charged with both second-degree murder and arson. At the police station, Mr. Dussault chose to speak to Mr. Benoit, a lawyer he did not know, whom he selected from a list provided by police. During the initial phone call, Mr. Benoit informed Mr. Dussault, that in light of the serious nature of the charges, he, Mr. Benoit, would come to the station and speak to Mr. Dussault in person. Nevertheless, Mr. Dussault began to speak to Mr. Benoit in confidence by telephone. Just over an hour later, Mr. Benoit arrived at the police station, but was not permitted to speak with Mr. Dussault because, in the opinion of investigators, the respondent had already exercised his right to counsel during the initial phone call. The investigators consulted with prosecuting counsel, who advised them that, in her opinion, Mr. Dussault had in fact exercised his right to counsel. The investigators maintained their initial position and did not allow further consultation between Mr. Dussault and Mr. Benoit at the station. Thereafter, Mr. Dussault was interrogated and made an incriminating statement to police.
Prior to trial, at a voir dire, Mr. Dussault moved to exclude said statement under s. 24(2) of the Canadian Charter of Rights and Freedoms, alleging a violation of his s. 10(b) Charter right to counsel. The trial judge admitted the statements into evidence and a jury found Mr. Dussault guilty of second-degree murder.
The narrow issue on appeal was whether Mr. Dussault had exhausted his right to counsel at the conclusion of his initial telephone call with his lawyer, or whether Mr. Dussault should have been allowed to consult with Mr. Benoit, in person, at the police station, in order to fully exhaust his right to counsel. The Quebec Court of Appeal unanimously allowed the appeal and quashed the jury’s guilty verdict.
The Crown was granted leave to appeal to the Supreme Court of Canada.
L’intimé est accusé de 18 chefs relatifs à des crimes de nature sexuelle commis dans les années 70 et 80 sur quatre victimes alors mineures incluant sa fille, son fils, sa nièce et son neveu. Son procès débute en mars 2015 devant le juge Beaulieu. Cependant le procès est interrompu lorsque le juge tombe malade. Seule la plaignante C.D. a alors été entendue.
Les parties comparaissent afin de reporter le dossier pour qu’un nouveau juge soit désigné en vertu de l’al. 669 pour le procès. Ainsi, à réouverture du procès, les avocats des parties, d’un commun accord, versent les notes sténographiques du témoignage de la plaignante C.D. et le juge les admet comme preuve au fond.
L’intimé est déclaré coupable par le juge Chevalier de 9 des 18 chefs d’accusation portés contre lui. Lors du prononcé de son verdict, ce dernier relève plusieurs contradictions et invraisemblances qu’il a notées dans la transcription du témoignage de C.D. rendu devant le juge Beaulieu, ce qui l’amènera à acquitter l’intimé de six des huit chefs concernant cette plaignante. L'intimé se voit imposer une peine d’emprisonnement ferme de 70 mois.
L’intimé se pourvoit contre les déclarations de culpabilité et demande la permission d’appeler de la peine. Dans une décision unanime, la Cour d’appel accueille l’appel sur la base d’une des cinq questions en litige soulevées. Elle est d’avis que le juge de première instance, qui a continué le procès commencé devant un autre juge en vertu de l’art. 669.2(3) C.cr., n’aurait pas dû accepter que le témoignage de C.D. soit versé au dossier, sans s’assurer que le consentement de l’intimé était libre, éclairé et non équivoque et que le versement du témoignage de C.D. ne porterait pas atteinte à l’équité du procès. Elle ajoute que cette procédure ne devrait pas être admise lorsque la crédibilité est au cœur du litige.
La Cour d’appel ordonne alors la tenue d’un nouveau procès en ce qui concerne les chefs d’accusation relatifs aux plaignants C.D. et S.D, 7 des 9 chefs dont l’intimé a été déclaré coupable en première instance. Quant à la peine, la Cour d’appel accueille la requête pour permission d’en appeler de la peine, annule les peines liées aux chefs d’accusation relatifs aux plaignants C.D. et S.D. et confirme la peine sur les autres chefs.
Sa Majesté la Reine fait appel devant la Cour suprême du Canada.
The appellant, Mr. Sundman, was acquitted of first degree murder but convicted of the included offence of second degree murder. The trial judge found that Mr. Sundman could not be convicted of first degree murder pursuant to s. 231(5)(e) of the Criminal Code because, at the time of the shooting, the victim’s confinement had come to an end.
The Crown appealed the acquittals of first degree murder and Mr. Sundman appealed the conviction for second degree murder. A unanimous Court of Appeal dismissed Mr. Sundman’s appeal but allowed the Crown’s appeal from the acquittal of first degree murder, set aside the conviction for second degree murder and entered a guilty verdict for first degree murder. The Court of Appeal held that the trial judge erred in law in addressing the scope of the offence of unlawful confinement. It went on to explain that even assuming that the trial judge’s conclusion that the act of confinement to which Mr. Sundman was a party had ended moments before the killing did not give rise to an appealable error in law, the trial judge nonetheless erred in law by requiring proof that the confinement and the killing occurred simultaneously. The court held that on the factual findings made by the judge, Mr. Sundman was guilty of first degree murder.
Mr. Sundman appealed to the Supreme Court as of right.
In the early morning hours of March 16, 2007, the deceased’s body was discovered in a ditch near Calgary. The victim had been fatally shot in the head. Police determined that Mr. Russell Steven Tessier was a friend and business associate of the deceased, and asked Mr. Tessier to come in for an interview the following day.
Mr. Tessier agreed to the interview and met with police for almost 3 hours. At no point during this initial interview did police caution Mr. Tessier or advise him of his right to counsel. According to police, at that point in time, Mr. Tessier was not a suspect – police were simply trying to obtain a timeline and information about the deceased. At Mr. Tessier’s suggestion, he even took the interviewing officer to a truck to retrieve items that belonged to the deceased.
After the interview, Mr. Tessier called the police detachment, twice, with additional information. When no one returned his call, he re-attended at the station that same evening. Mr. Tessier told the officer that he had forgotten to tell him that he had retrieved his gun from a shooting range the day before and stored it in its case in his bedroom closet. The victim had been staying with Mr. Tessier for a few days before he died and had occupied that bedroom. Mr. Tessier asked the officer to accompany him to his apartment in Calgary to confirm that the gun was still there. Two police officers then drove to Calgary with Mr. Tessier. At this point, police had not informed Mr. Tessier that the victim had been shot in the head, and may not even have known that fact themselves.
When they arrived at the apartment, the gun was not in its case. Mr. Tessier appeared “shocked” and said that the victim must have taken the gun before he left. Police then “Chartered and cautioned” Mr. Tessier.
At trial, Mr. Tessier’s counsel sought to exclude all of his statements – both inculpatory and exculpatory – during his first and second police interviews on March 17, 2007. The trial judge rejected Mr. Tessier’s argument that he was psychologically detained. He found no evidence of threats or inducements, no atmosphere of oppression, and no reason to doubt that Mr. Tessier had an operating mind. Although Mr. Tessier had not been cautioned by police, he was not a person of interest at the time he gave the statements. The trial judge admitted both of Mr. Tessier’s statements.
Mr. Tessier’s trial proceeded before a jury. He was found guilty of first degree murder. He appealed his conviction to the Court of Appeal for Alberta. The Court unanimously held that the trial judge erred in his analysis of whether Mr. Tessier made a meaningful choice to speak with police before he was cautioned. The Court set aside the conviction and ordered a new trial.
The Crown was granted leave to appeal to the Supreme Court of Canada
Le procès de M. Vallières a eu lieu en cour supérieur devant un jury qui l’a reconnu coupable d’infractions se rapportant à la fraude, au trafic et au vol de sirop d’érable de la Fédération des producteurs acéricoles du Québec.
Le point en litige devant la Cour suprême concerne la détermination de la peine pour la commission de ces infractions. De façon plus particulière, il s’agit en l’espère de la détermination du montant de l’amende compensatoire.
En première instance, la Cour supérieure est d’avis que les différents critères applicables à l’amende compensatoire, établis tant par le Code criminel que par la jurisprudence, sont ici rencontrés. La Cour supérieure considère qu’elle n’a ainsi d’autre choix que d’imposer une amende compensatoire, tenant compte qu’il est impossible de récupérer les biens qui ont été volés. La Cour estime que le pouvoir discrétionnaire du tribunal est limité et que le montant de l’amende doit être égal à la valeur du bien que l’accusé a eu en sa possession ou sous son contrôle. Elle ordonne le paiement d’une amende de 9 393 498$ (soit 10 000 000$ moins un montant de 606 501$US réclamé au niveau de l’ordonnance de blocage, laquelle n’est pas en cause).
La Cour d’appel trouve le montant imposé en premier instance excessif et préfère suivre l’approche adoptée par la Cour d’appel de l’Ontario dans Dieckmann (2017 ONCA 575), à savoir qu’un tribunal peut exercer son pouvoir discrétionnaire, en présence d’une preuve suffisante, afin de fixer une amende qui reflète la marge de profit dont le contrevenant a bénéficié dans le cadre de son activité criminelle pourvu que le double objectif de privation du gain et de dissuasion de l’organisation criminelle et des complices soit satisfait. La Cour d’appel considère qu’il y a lieu d’établir le montant de l’amende compensatoire à 1 000 000$, moins le montant de l’ordonnance de restitution (606 501 USD) conformément à la conversion de devises suggérée par le ministère public, pour un total de 171 397,57$
The complainant and the appellant met online, and up until March 2017 they had met in person on only a single occasion, for about two hours. On that occasion, they discussed sexual practices. The complainant told the appellant that she insisted on the use of condoms during sexual intercourse. The appellant agreed that such a practice was safest for all concerned. A few days later, the two decided to meet again. They engaged in intercourse on two occasions, but on the second occasion, unbeknownst to the complainant, the appellant did not wear a condom. The complainant testified that she had not consented to intercourse without a condom, and her evidence was that she would not have done so if asked. The appellant was charged with sexual assault.
At trial, following a successful no evidence motion, the appellant was acquitted of sexual assault. The trial judge found that there was no evidence that the complainant had not consented to the sexual activity in question. The trial judge also found that there was also no evidence to show that the appellant had acted fraudulently. The Crown appealed the decision.
The Court of Appeal for British Columbia unanimously allowed the Crown’s appeal. The Court held that a person could limit their consent to sexual intercourse on the condition that their partner wear a condom. Therefore, the complainant did not consent to the sexual activity.
The defendant appealed to the Supreme Court of Canada.
There is a publication ban in this case.
At trial, appellant, Matthew Brown, was acquitted of breaking and entering with commission of aggravated assault. The accused attended a party where he consumed alcohol and magic mushrooms. While intoxicated, he broke into two homes, assaulting the occupant in the first residence and causing damage to property in the other. The accused challenged the constitutionality of s. 33.1 of the Criminal Code, which prohibited him from raising the defence of non-mental disorder automatism by reason of self-induced intoxication where his conduct interferes with the bodily integrity of another person. The trial judge held that s. 33.1 infringed both ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and struck down that section. The trial judge then permitted Mr. Brown to raise the automatism defence and accepted the expert evidence that the accused was in a state of non-mental disorder automatism and acquitted him of all charges.
A unanimous Court of Appeal of Alberta allowed the Crown’s appeal and set aside the declaration of invalidity of s. 33.1. The Court set aside the acquittal and entered a conviction on the lesser and included offence of aggravated assault. No conviction was entered for break and enter as it was specific intent offence not covered by s. 33.1. Justice Slatter held that there was no risk of here convicting the morally innocent because those who voluntarily became intoxicated, where it was objectively foreseeable that while intoxicated, they might act in dangerous manner, were not morally innocent. Justice Hughes, concurring in result, reasoned that s. 33.1 does not provide a substitution for the mental element of the offence but rather another type of fault, which meets the principles of fundamental justice. Justice Khuller, also concurring in result, ruled that s. 33.1 breached the principles of fundamental justice but was constitutional as it was saved under s. 1 of the Charter.
Matthew Brown appealed to the Supreme Court of Canada as of right.
Mr. Samaniego and his co-accused were convicted by a jury of possession of a loaded restricted firearm. It was alleged that Mr. Samaniego had brought the firearm to a nightclub and used it to threaten a security guard. The only evidence linking Mr. Samaniego to the firearm was the testimony of a security guard, who was a friend of the co-accused.
The security guard’s credibility was central to the Crown’s case. The trial judge made several mid-trial rulings which had the effect of preventing Mr. Samaniego’s counsel from cross-examining the security guard on his prior statements to police and on his testimony at the preliminary inquiry. The trial judge also directed the jury that the security guard had made prior consistent statements but did not require those statement to be put into evidence.
A majority of the Court of Appeal for Ontario upheld Mr. Samaniego’s conviction, finding that the trial judge’s rulings were within her proper discretion and were entitled to defence. The majority found that the trial judge’s rulings did not deprive Mr. Samaniego of material evidence necessary for his defence and did not impact the fairness of the trial. In dissent, Justice Paciocco would have allowed the appeal and ordered a new trial.
Matthew Stairs, was charged with assault, breach of probation, and possession of methamphetamine for the purpose of trafficking.
At trial, Mr. Stairs brought a ss. 8 and 9 Charter application to exclude evidence under section 24(2) of the Charter. He argued that he was the subject of cascading Charter breaches, starting with an unlawful entry into his home and ending with an unlawful search. The application was dismissed, and the appellant was found guilty of all three charges.
Mr. Stairs appealed only his conviction of possession for the purpose of trafficking. The appeal rested on a challenge to the Charter ruling. A majority of the Court of Appeal for Ontario dismissed the appeal. It held that the trial judge did not err in concluding that the police had sufficient grounds to arrest him and in concluding that a Feeney warrant was not required to make the arrest inside of the home. The majority also held that the trial judge did not err in concluding that the discovery and seizure of the methamphetamine was not a s. 8 Charter breach. The fact that the methamphetamine was sitting out in plain view meant that it could be seized.
Justice Nordheimer dissented, stating he would have allowed the appeal. He agreed with the majority’s analysis and conclusion concerning the police entry into the residence, that the police had valid grounds to arrest the appellant, and that the police did not require a Feeney warrant. He strongly disagreed with the majority’s s. 8 Charter breach analysis and conclusion. In his view, the officers did not have sufficient objectively reasonable grounds to conduct a safety search of the basement living area, where the methamphetamine was found.
Justice Nordheimer indicated that in order to be justified, the safety search must be reasonably necessary in light of the prevailing circumstances. A search is reasonably necessary when police officers have reasonable grounds to believe that there is an imminent threat to their safety. The officers did not have any basis for a reasonable ground to believe that there was an imminent threat to them. In fact, the officers did not even have a basis for a reasonable ground to suspect that there was an imminent threat to them. The warrantless search breached the s. 8 rights of the appellant and he would have excluded the evidence under s. 24(2) of the Charter. As there was no other evidence on the drug charge, he would have set aside the conviction and entered an acquittal for the count in issue.
Justice Nordheimer expressed concern that the majority’s decision had potential to provide the police with a broad licence to undertake warrantless searches, inconsistent with the protections intended to be subsumed with s. 8 of the Charter.
Justice Nordheimer’s dissent created an appeal as of right, to the Supreme Court of Canada.
The issue before the Supreme Court of Canada the grounds that must exist to allow the police to search within a residence under their common law power of search incident to arrest.
This is a two-part episode for two appeals that were jointly heard by the Court, A.S. vs Her Majesty the Queen and Her Majesty the Queen v. J.J.
In A.S. vs Her Majesty the Queen, Shane Reddick was charged with sexual assault as a result of events that allegedly took place at a party in Toronto. At the party, the Complainant, A.S, was captured on two video recordings engaging in sexual activities. At trial, Mr. Reddick intended to cross-examine A.S on the contents of the two videos, but to do so he had to comply with s. 276(2) and ss. 278.92 through 278.94. Mr. Reddick brought an application to find that those sections violated his ss. 7 and 11(d) Charter rights.
As it relates to the procedural sections that govern the disclosure of records to the Complainant, Justice Akhtar found that although the purpose of these sections was legitimate the implementation of the amendments trampled upon the principles of the Charter. Justice Akhtar opined that the procedural provision of s. 278.92 and disclosure of the accused’s application and affidavit to the Complainant was overbroad and infringed the accused’s s. 7 and 11(d) Charter rights.
As it relates to the participation of the Complainant under s. 276, Justice Akhtar found that the effect of the amendments to s. 276 is to elevate the complainant from the role of a witness in the Crown's case to that of a party who is entitled to advance disclosure of records pertaining to an accused's line of questioning as well as their defence. He noted that this is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused's constitutional protections by providing their defence to a witness prior to trial.
In Her Majesty the Queen v. J.J., The respondent, J.J., was charged with sexual assault. His lawyer is in possession of communications between J.J. and the complainant. His lawyer wants to use those communications on cross-examination of the complainant; however, he says those communications meet the definition of a record in s. 278.1 of the Criminal Code and as a result he must apply to have the communications admitted as relevant to an issue at trial pursuant to a Criminal Code amendment. The application must be made on seven days’ notice to the Crown, unless the trial judge permits a shorter period. =
Duncan J. held that the seven-day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1. Duncan J. “read down” the provision to: (1) remove the seven day notice requirement in s. 278.93(4) only as it applies to s. 278.92 applications; and (2) provide that s. 278.92 applications should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. J.J. was acquitted of sexual assault by a jury. The Crown appeals the constitutional ruling but not the jury’s verdict.
This is a two-part episode for two appeals that were jointly heard by the Court, A.S. vs Her Majesty the Queen and Her Majesty the Queen v. J.J.
In A.S. vs Her Majesty the Queen, Shane Reddick was charged with sexual assault as a result of events that allegedly took place at a party in Toronto. At the party, the Complainant, A.S, was captured on two video recordings engaging in sexual activities. At trial, Mr. Reddick intended to cross-examine A.S on the contents of the two videos, but to do so he had to comply with s. 276(2) and ss. 278.92 through 278.94. Mr. Reddick brought an application to find that those sections violated his ss. 7 and 11(d) Charter rights.
As it relates to the procedural sections that govern the disclosure of records to the Complainant, Justice Akhtar found that although the purpose of these sections was legitimate the implementation of the amendments trampled upon the principles of the Charter. Justice Akhtar opined that the procedural provision of s. 278.92 and disclosure of the accused’s application and affidavit to the Complainant was overbroad and infringed the accused’s s. 7 and 11(d) Charter rights.
As it relates to the participation of the Complainant under s. 276, Justice Akhtar found that the effect of the amendments to s. 276 is to elevate the complainant from the role of a witness in the Crown's case to that of a party who is entitled to advance disclosure of records pertaining to an accused's line of questioning as well as their defence. He noted that this is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused's constitutional protections by providing their defence to a witness prior to trial.
In Her Majesty the Queen v. J.J., The respondent, J.J., was charged with sexual assault. His lawyer is in possession of communications between J.J. and the complainant. His lawyer wants to use those communications on cross-examination of the complainant; however, he says those communications meet the definition of a record in s. 278.1 of the Criminal Code and as a result he must apply to have the communications admitted as relevant to an issue at trial pursuant to a Criminal Code amendment. The application must be made on seven days’ notice to the Crown, unless the trial judge permits a shorter period. =
Duncan J. held that the seven-day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1. Duncan J. “read down” the provision to: (1) remove the seven day notice requirement in s. 278.93(4) only as it applies to s. 278.92 applications; and (2) provide that s. 278.92 applications should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. J.J. was acquitted of sexual assault by a jury. The Crown appeals the constitutional ruling but not the jury’s verdict.
Mr. Strathdee was involved in a group assault at a downtown Edmonton apartment with at least four other men. Several victims were stabbed – one fatally so. He was charged with second degree murder, manslaughter, one count of break and enter, and three counts of aggravated assault.
At trial, he was acquitted of second-degree murder, manslaughter, and break and enter with intent. He was convicted on all three counts for aggravated assault as a party to the offence under section 21(2) of the Criminal Code, having been involved in a group assault.
With respect to the murder charge, the trial judge found as a fact that only one person could have caused the victim’s death and that no one else applied force to him. As such, under section 21(2)(a), Mr. Strathdee could not be found liable where the cause of death could have only been inflicted by one person. In that regard, an acquittal was entered.
The Crown appealed the acquittal on the homicide charge and the appellant cross-appealed his convictions for aggravated assault.
The Court of Appeal of Alberta found that the trial judge erred in her application of the law on joint participation, ultimately allowing the Crown’s appeal. The Court held that because of the judge’s finding of a group assault, she ought to have assessed Mr. Strathdee’s liability as a joint principal, and that the Crown was not required to prove that Mr. Strathdee personally applied force to the deceased. The acquittal was set aside and the Court substituted a conviction for manslaughter. Mr. Strathdee’s cross-appeal was dismissed.
Mr. Strathdee appealed his conviction for manslaughter as of right.
At issue before the Supreme Court of Canada is whether the trial judge erred in her application of the law of joint principals.
The Respondent, Liam Reilly was convicted of six counts of robbery and firearms-related offences. Police came to believe that the Respondent was involved in two armed robberies and attended his residence to arrest him. The Respondent was subject to an unrelated probation order that required him to present himself to the door for curfew checks. When the Respondent did not present himself one of the officers entered the residence through an unlocked rear sliding door, walked to the Respondent’s bedroom, knocked on the door, and arrested him.
Officers then performed a clearing search of the residence, during which they observed evidence related to the robberies. An information to obtain was subsequently drafted, and police obtained a search warrant, based in part on the observations made during their prior entry to the residence.
Before trial the respondent brought a charter application pursuant to s. 8 alleging that the ITO was facially invalid, and the search warrant should not have been issued. He sought the fruits of the search to be excluded under s. 24(2). Following the failure of this application the Respondent invited the court to convict him of the charges as alleged.
The Respondent appealed to the Court of Appeal for British Columbia. The majority held that while the trial judge did not err in law or principle in upholding the search warrant, they erred by considering the “charter compliant conduct” of the police as mitigating the seriousness of the breach and by failing to properly weigh the Grant factors. The majority then conducted a fresh s. 24(2) analysis, and found that despite society’s strong interest in the adjudication of the case on its merits that the admission of the evidence would bring the administration of justice into disrepute.
In dissent, Justice Willock held that the majority should have deferred to the trial judge’s s. 24(2) analysis, and disagreed that the inclusion of evidence would bring the administration of justice into disrepute.
The Crown appealed to the Supreme Court of Canada as of Right.
This matter involves two cases being heard together from the Court of Appeal for Ontario, that of Mr. Sullivan and of Mr. Chan. Mr. Sullivan attempted suicide using prescription drugs and, in a psychotic state, stabbed his mother. Mr. Chan voluntarily used magic mushrooms and, in a psychotic state, fatally stabbed his father and non-fatally stabbed his father’s partner. Mr. Sullivan was convicted of aggravated assault and assault with a weapon. Mr. Chan was convicted of manslaughter and aggravated assault.
Both accused tried to raise the defence of non-mental disorder automatism at trial and were denied due to s. 33.1 of the Criminal Code. This section limited the availability of that specific defence for violent crimes when the intoxication was self-induced. Mr. Chan’s trial judge found that s. 33.1 did infringe ss. 7 and 11(d) of the Charter, but the section was saved, and thus constitutional, due to s. 1 of the Charter.
The issue before the Court of Appeal for Ontario was the constitutionality of s. 33.1 and the parameters around accessing the defence of non-mental disorder automatism. The Court ruled that s. 33.1 of the Criminal Code was unconstitutional Section 1 of the Charter could not save s. 33.1 because it sought to hold an accused accountable despite not proving the mens rea and actus reus of a codified offence. This is in direct conflict with core Charter principles
The Supreme Court of Canada granted leave to both cases.
Ms. Dingwall, Mr. Russell, and Mr. Richet, the three appellants, were convicted of aggravated assault and various firearm offences in connection to a drive-by shooting. At trial, the Crown’s case was based on circumstantial evidence. The trial judge concluded that Mr. Russell and Mr. Richet were guilty as principals or aiders or abettors for all charges. Ms. Dingwall was found guilty as an aider or abettor for the charges relating to the drive-by shooting and as a principal or aider or abettor for the charges related to the burning of a truck.
The three appellants appealed their respective convictions. The majority of the Court of Appeal for British Columbia dismissed the appeals. It held that the verdicts were not unreasonable.
In dissent, Butler J.A. disagreed with the disposition of Ms. Dingwell’s appeal related to the drive-by shooting charges. Ms. Dingwall’s participation in the offences were not the only rational inference on the evidence. The verdict was therefore unreasonable.
Ms. Dingwell appealed to the Supreme Court of Canada as of right.
The appellant was charged with offences related to the possession of a handgun, possession of fentanyl, and breach of an undertaking. He had been involved in a single-vehicle collision. An intervening police officer observed a small Ziploc bag containing a single yellow pill in his car. The officer believed the pill to be Gabapentin. The officer erroneously believed Gabapentin to be a controlled substance under the Controlled Drugs and Substances Act and placed the appellant under arrest for possession of a controlled substance. Further searches of the appellant and his vehicle yielded fentanyl and a loaded firearm.
At trial, the appellant sought exclusion of the evidence pursuant to s. 24(2) of the Charter on the basis that he had been arrested for a non-existent offence, resulting in a violation of his ss. 8 and 9 Charter rights.
The trial judge concluded that the arrest and subsequent searches were lawful, and dismissed the application.
A majority of the Court of Appeal of Alberta dismissed the appellant’s appeal. The officer had been mistaken in his belief that Gabapentin is a controlled substance, however that mistaken belief was reasonable and it did not invalidate the appellant’s arrest. As the appellant's arrest was lawful, the searches incidental to arrest were also lawful. In dissent, Veldhuis J.A. would have allowed the appeal, excluded the evidence, and entered acquittals on all counts.
At trial, the appellant was convicted of sexual assault, attempting to obstruct justice, and breach of bail conditions which prohibited him from contacting the complainant or attending at her residence, following a charge of criminal harassment. Shortly after the appellant had been charged and released in the criminal harassment file, the complainant contacted his father and asked if there was a way for her to withdraw the charges. In response, the appellant made inquries and went to the complainant’s home to tell her how to contact the Crown in order to have the charges against him dropped. While he was there, the appellant grabbed the complainant and forcibly kissed her.
The appellant appealed his conviction on a number of grounds, including that the trial judge’s reasons on the charge of attempting to obstruct justice were inadequate. A majority of the Court of Appeal of Alberta dismissed the appeal. It held that the trial judge’s inference that the appellant had applied pressure on the complainant for an improper purpose, thereby committing the offence of attempting to obstruct justice, was available on the record. In the majority’s view, the context clearly supported that inference, which is entitled to deference. Justice Slatter dissented.
The appellant appealed to the Supreme Court of Canada as of right.
A police search of Mr. Parranto on arrest and searches of his residence found fentanyl, other drugs, cash, weapons and drug paraphernalia. Mr. Parranto pleaded guilty to 8 offences including two counts of wholesale trafficking in fentanyl. On the two counts of wholesale trafficking in fentanyl, he was sentenced to 4 years and 5 years consecutive.
In six transactions, Mr. Felix sold fentanyl and cocaine to an undercover police. Mr. Felix pleaded guilty to four offences including two counts of wholesale and commercial trafficking in fentanyl. On the counts of trafficking in fentanyl, Mr. Felix was sentenced to two 7-year terms concurrent.
On appeals from the sentences, the Court of Appeal of Alberta established a starting point of 9 years for sentences for wholesale trafficking in fentanyl. It sentenced Mr. Parranto to two 7-year terms consecutive for trafficking in fentanyl and Mr. Felix to two 10-year terms concurrent for trafficking in fentanyl.
On December 22, 2016, the appellant, Mr. Mohsenipour, was charged with several offences related to his operation of a commercial sex trade, including living on the avails of prostitution between March 15 and December 5, 2014. Despite finding factual guilt on all counts, the trial judge quashed the living off the avails counts as unconstitutional, relying on Canada v. Bedford, 2013 SCC 72. On December 20, 2013, in Bedford, the Court held that the offence of living off the avails of prostitution was overbroad and could not be saved under s. 1 of the Canadian Charter of Rights and Freedoms. The Court suspended the declaration of invalidity for a period of one year.
The British Columbia Court of Appeal allowed the Crown’s appeal and ordered that convictions be entered. Since Parliament replaced the offence with a new offence that largely mirrors its predecessor in substance but carves out a number of exceptions intended to address concerns over security of the person raised in Bedford within the period of the suspension, conduct captured by the former iteration of the offence during the suspended declaration of invalidity is prosecutable. During the suspension period, the offence was constitutionally valid. The retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation: the declaration of invalidity never came into effect to render the provision a nullity ab initio.
Mr. Cowan was acquitted of armed robbery and having his face masked with intent to commit robbery. The Crown’s theories at trial were that Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or that Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found that the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory.
A majority of the Court of Appeal allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial proceeding from the footing that the question to be determined is whether Mr. Cowan is guilty of robbery, as a party, on the basis of abetting or counselling.
Justice Jackson, dissenting, would have dismissed the Crown’s appeal because the legal error, if it existed, was insufficiently material for the court to overturn the acquittal.
Devant la Cour du Québec, l’intimé, M. Sheikh, est trouvé coupable d’un chef de fraude dépassant 5 000. Selon la théorie de la poursuite, l’intimé a entrepris frauduleusement un recours judiciaire civil contre un complice allégué qui était fondé sur des prêts factices pour en réclamer le remboursement au détriment de la Fédération des producteurs acéricoles du Québec.
La Cour d’appel du Québec, pour les motifs du juge Vauclair, auxquels souscrit la juge Bich, accueille l’appel de l’intimé, casse le jugement de culpabilité et ordonne l’inscription d’un jugement d’acquittement. La majorité explique que le raisonnement de la juge d’instance est problématique. Il ne respecte pas le principe fondamental de la présomption d’innocence voulant que l’accusé n’ait rien à prouver. La majorité souligne aussi que la manière de mener l’interrogatoire du complice allégué était hautement contestable. Le juge Schrager, dissident, aurait rejeté l’appel au motif que le verdict n’est pas déraisonnable. De plus, à son avis, le témoignage du complice est pertinent et ne démontre pas une propension pour la criminalité.
At trial, the respondent, Mark Smith, was found guilty of sexually assaulting the complainant, a woman he had just met at a party. The Crown sought to admit statements made by the complainant to her friend immediately following the alleged assault as prior consistent statements to rebut a notion of recent fabrication, and the defence sought to admit them as prior inconsistent statements for the purpose of challenging the complainant’s credibility. The trial judge did not expressly rule on the admissibility of the statements, nor did she explicitly comment on whether they were consistent or inconsistent with the complainant’s testimony. Ultimately, she found the complainant to be credible and reliable and convicted the respondent.
A majority of the Court of Appeal for British Columbia allowed the respondent’s appeal and ordered a new trial on the basis that the trial judge misapprehended the evidence in failing to address inconsistencies in the witnesses’ accounts. The majority also found that the trial judge’s failure to rule on the admissibility of the complainant’s prior statements, and, if admitted, to consider whether they were consistent or inconsistent with her testimony, was a misapprehension of the evidence. Justice Dickson dissented.
The Crown appealed to the Supreme Court of Canada.
This is the first episode of Canada’s Court, the first podcast to highlight select oral hearings from The Supreme Court of Canada. In this episode, we present R. v. Ghotra, 2021 SCC 12.
Presented by the Criminal Lawyers’ Association and available on all major podcast platforms. Visit podcast.criminallawyers.ca for more information.