Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, May 14, the Supreme Court of Canada is releasing its decision in R. v. G.F. At issue is when is it permissible for appellate courts to decide cases based on issues that were not raised by the parties. (Note: There’s a publication ban in this case.)

During a long weekend, the complainant and her family attended a camping trip with the respondents. On the last night, the complainant slept in the respondents’ trailer. The complainant had consumed alcohol and later vomited. The complainant testified that she woke up to one of the respondents pulling down her pants and that both respondents engaged her in sexual activity. The respondents were convicted of sexual assault.

On appeal, the respondents raised three grounds: (1) unreasonable verdict, (2) uneven scrutiny of the evidence, and (3) ineffective assistance of counsel. The Court of Appeal rejected the unreasonable verdict ground and ignored the other two grounds. Instead, the Court identified two different errors premised on deficiencies in the trial judge’s reasons. First, the trial judge failed to analyze the complainant’s degree of impairment in light of the jurisprudence on incapacity. Second, it was unclear whether the trial judge had considered the issue of consent separately from the issue of capacity. The Court of Appeal held that the verdict could not be upheld on the alternative basis of non-consent irrespective of capacity because (1) the Crown at trial had not invited the Court to convict on that basis, and (2), the judge’s reasons did not clearly indicate a finding of non-consent irrespective of capacity. The Court of Appeal allowed the appeals against conviction, set aside the convictions, and ordered new trials.

The Crown appealed to the SCC. It argued that the Court of Appeal misinterpreted the Mian decision which addresses when and how an appellate court can raise a new issue. The Crown essentially argues that it didn’t have the opportunity to speak to the issue that the Court of Appeal ultimately relied upon to allow the appeal. The respondents argue that the Court of Appeal did not misinterpret nor misapply Mian. Instead, the Crown made fulsome submissions on the issues that decided the appeal.

I’m leaning towards appeal allowed. Justice Moldaver and Brown in the majority and Justice Rowe in dissent. Justice Rowe seemed hung up on the failure of the trial judge to clearly set out and apply a test regarding incapacity. Justice Moldaver on the other hand seemed prepared to salvage the conviction on the basis of clear evidence as to a lack of consent.

Last SCC Decision

  • On May 7, 2021, the Supreme Court of Canada released its decision in v. C.P., 2021 SCC 19.
  • The overall result was clear: eight of the nine judges agreed that the young person’s appeal should be dismissed because the verdict was reasonable. 79% of you got it right!
  • On the issue of the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which bars automatic appeals to the SCC on the basis of a dissent at the Court of Appeal, it felt like a throw back to much older and more confusing SCC decisions. The headnote frames it as a 3:4:1:1 split.
  • A majority (Wagner C.J. and Moldaver, Brown and Rowe JJ.) found s. 37(10) of the YCJA consistent with ss. 7 and 15 of the Charter. Therefore, denying young offenders an automatic right to appeal to the SCC is constitutional.
  • Justices Abella, Karakatsanis and Martin found that the limitation in s. 37(10) of the YCJA constitutes a prima facie breach of s. 15 of the Charter that cannot be justified under s. 1 of the Charter, making s. 37(10) unconstitutional
  • Justice Kasirer found that the s. 37(10) is consistent with s. 7, but not s. 15, but the limit was saved by s. 1.
  • Justice Côté said it wasn’t necessary to answer the constitutional questions at all because they were moot – the SCC had granted leave in this case. However, she wrote reasons in dissent because she found the conviction for sexual assault is unreasonable.
  • The most confusing part is that it is technically a 4-4 draw on whether there’s a prima facie violation of s. 15 – the Court did achieve equality in one sense…
  • This appeal is a reminder how important each vote is and how the changing composition of the court (Abella J. is retiring this summer) can have a significant impact on appeals.
  • For a good, insider-informed look at who will be the next Supreme Court appointment, check out Sean Fine’s article for The Globe and Mail.

-Tom Slade