Canada's Court: Oral Arguments from the SCC

Hello, my name is Monica Bharadwaj and I am a criminal defence lawyer practicing in downtown Toronto. This is the case of R. v. Jennifer Pan and all. In this infamous case, Jennifer Pan is alleged to have masterminded a plan for her parents to be killed, employing the assistance of her ex-boyfriend and his cohorts to carry out the attack. In her initial police statements, she described a home invasion by assailants whom she did not know. After a lengthy investigation and further statements by Ms. Pan, she was ultimately charged for her role. At trial, Ms. Pan and her co-accused were convicted by a jury of the first-degree murder of her mother, and the attempted murder of her father who survived the attack and who testified at trial. Ms. Pan and her co-accused appealed their convictions. The Court of Appeal remitted the first-degree murder count back for a new trial for all co-accused, citing that the failure to provide the jury with the option to convict on second degree murder or manslaughter, for the death of Ms. Pan's mother, was an error that deserved a new trial. The Court of Appeal upheld the conviction for the attempted murder of her father. The Crown appealed to Supreme Court, arguing that the conviction for the 1st degree murder of Ms. Pan's mother should also stand. Ms. Pan has cross-appealed, asking the Supreme Court to consider this legal conundrum: by sending one count back to trial and upholding another, what happens if the appellate court, on its own decision, creates the possibility of an inconsistent verdict? The Crown argues that it is implausible that Ms. Pan could have the specific intent to kill her father, as required for a conviction of Attempted Murder, whilst not having the specific intent to kill her mother, because, as the Crown argues, both her parents were equal targets of the attack. Countering this argument, the defence points out that The Court of Appeal was unanimous in its decision to remit the 1st degree murder charge back to the lower court for a new trial and made its decision on sound law. However, in recognizing the inconsistency in upholding the attempted murder conviction, in its cross-appeal the defence has asked the Supreme Court to intervene and to create a new test to prevent inconsistent verdicts provoked by appellate decisions under s. 686(1)(a) of The Criminal Code, ultimately arguing for a new trial on all counts.

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 RoiGabriel 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 RoiL'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 RoiMonsieur 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.

Bonjour et bienvenue à un autre épisode de Canada's Court présenté par l'Association des avocats de la défence. Je m'appelle Salematou Camara et je suis une avocate de la défense basée à Toronto. Je vous présente aujourd'hui le dossier de sa Majesté le Roi c. Yves Caleb Junior Charles.Au terme de son procès devant la cour du Québec, Monsieur Charles est déclaré coupable de trois chefs d'accusation, soit de voies de fait armés, l'utilisation d'une fausse arme à feu lors de la perpétration de voies de fait et d'avoir proférés des menaces. Un arrêt conditionnel des procédures est également déclaré pour un quatrième chef de voies de fait armés.Mr Charles a fait appel de sa condamnation de première instance et la question principale que la Cour d'appel du Québec devait décider était de savoir si le juge de première instance a commis une erreur révisable, en permettant à la poursuite d'admettre en preuve la déclaration extrajudiciaire d'un des témoins, et ce, après avoir trouvé que le seuil de fiabilité de la déclaration était atteint étant donné la preuve corroborante et les circonstances dans lesquelles la déclaration a été faite.La majorité de la Cour d'appel, représentée par les motifs des juges Doyon et Cournoyer, rejette l'appel de Mr Charles et déclare qu'une approche souple doit être privilégier pour la règle d'admissibilité du ouï-dire et une analyse au cas par cas doit être maintenue. La majorité déclare que s'il est vrai que le juge de première instance n'a pas rigoureusement distingué l'analyse de la fiabilité substantielle de celle de la fiabilité procédurale, il pouvait néanmoins considérer l'ensemble des circonstances pour conclure que la déclaration est admissible, et ce, même si certains éléments considérés séparément ne pourrait établir que l'un ou l'autre des seuils de fiabilité.Le juge Bachand, dissident, aurait accueilli l'appel et ordonné la tenue d'un nouveau procès. Il indique dans ses motifs que la déclaration du témoin n'atteint pas le seuil de fiabilité requis pour son admissibilité à titre de ouï-dire. Les circonstances de la déclaration ne permettent pas de conclure « irrésistiblement » de la véracité de la déclaration quant à la participation de l'appelant dans les faits reprochés.Mr Charles fait appel de plein droit à la Cour Suprême du Canada.

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 dossierL'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 QueenMr. 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. RamelsonAt 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 evidenceThe trial judge erred in assessing his alibi evidence, andThe 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.