This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2021, and includes:

Each section is arranged in alphabetical order by area of law so you can more easily find the decisions relevant to your practice. We have also included direct quotes from judgments or headnotes in some cases if they provide a useful summary for the reader.

For Leaves to Appeal granted, a hyperlink to the C.A. being appealed is also included.


Aboriginal Law: Flooding; Equitable Compensation

Southwind v. Canada, 2019 FCA 171; 2021; SCC 28 (38795)

The trial judge here valued flooded land based on its value in 1929, with 10 percent valued as waterfront land and 90 percent valued as bushland. He determined that because Canada was authorized to expropriate the land for a public work under the Indian Act provisions in force at the time, the land should be valued based upon an expropriation in 1929. Thus, the trial judge concluded that the First Nation was not entitled to be compensated for any value that the land provided to the hydroelectricity project itself. This approach to equitable compensation for breach of fiduciary duty is flawed. By looking solely at the amount the LSFN would have received if Canada had complied with the general law relating to expropriation, the trial judge gave no effect to the unique obligations imposed by the fiduciary duty. The trial judge improperly focused on what Canada would likely have done, as opposed to what Canada ought to have done as a fiduciary. The fiduciary duty imposes heavy obligations on Canada. The duty does not melt away when Canada has competing priorities. Canada was under an obligation to preserve and protect the LSFN’s interest in the Reserve. This included an obligation to negotiate compensation for the LSFN on the basis of the value of the land to the hydroelectricity project. Compensation must be assessed on that basis. The case is remitted back to the Federal Court for reassessment of the equitable compensation to include the value of the flooded land to the hydroelectricity project.

Aboriginal Law: Hunting Rights

R. v. Desautel, 2019 BCCA 151; 2021 SCC 17 (38734)

Whether a group is an Aboriginal people of Canada is, analytically speaking, a different question from whether the group has an Aboriginal right. This Court’s decision in Van der Peet was about the latter question. It set out a test for having an Aboriginal right, not for being an Aboriginal people of Canada. The Van der Peet test by itself is not, therefore, dispositive of this appeal. That said, evidence that is relevant to the question whether a group has an Aboriginal right may also be relevant to the question whether the group is an Aboriginal people of Canada. Whether a group is an Aboriginal people of Canada is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the Van der Peet test. But this threshold question does not arise in every case. In most cases there is no doubt that the claimant belongs to an Aboriginal people of Canada, so there is no need to address the threshold question. The threshold question is likely to arise only where there is some ground for doubt, such as where the group is located outside of Canada. It should not be construed as an additional burden on rights claimants that has to be satisfied in every case.  A consistent development of this Court’s s. 35(1) jurisprudence requires that groups located outside Canada can be Aboriginal peoples of Canada.  The two purposes of s. 35(1) are to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them. These purposes are reflected in the structure of Aboriginal rights and title doctrine, which first looks back to the practices of groups that occupied Canadian territory prior to European contact, sovereignty or effective control, and then expresses those practices as constitutional rights held by modern-day successor groups within the Canadian legal order. The same purposes are reflected in the principle of the honour of the Crown, under which the Crown’s historic assertion of sovereignty over Aboriginal societies gives rise to continuing obligations to their successors as part of an ongoing process of reconciliation.  On this interpretation, the scope of “aboriginal peoples of Canada” is clear: it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. As a result, groups whose members are neither citizens nor residents of Canada can be Aboriginal peoples of Canada.

Bankruptcy & Insolvency: CCAA; Priorities

Canada v. Canada North Group Inc., 2019 ABCA 314; 2021 SCC 30 (38871)

The CCAA generally empowers supervising judges to order super-priority charges that have priority over all other claims, including claims protected by deemed trusts. In all cases where a supervising court is faced with a deemed trust, the court must assess the nature of the interest established by the empowering enactment, and not simply rely on the title of deemed trust. In this case, when the relevant provisions of the Income Tax Act are examined in their entirety, it is clear the ITA does not establish a proprietary interest because the claim does not attach to any specific asset. Further, there is no conflict between the CCAA order and the ITA, as the deemed trust created by the ITA has priority only over a defined set of security interests. A super-priority charge ordered under s. 11 of the CCAA does not fall within that definition. On review of a supervising judge’s order, an appellate court should be cognizant that supervising judges have been given this broad discretion in order to fulfill their difficult role of continuously balancing conflicting and changing interests. Appellate courts should also recognize that orders are generally temporary or interim in nature and that the restructuring process is constantly evolving. These considerations require not only that supervising judges be endowed with a broad discretion, but that appellate courts exercise particular caution before interfering with orders made in accordance with that discretion.

Bankruptcy & Insolvency: Compensation/Set-off Between CCAA Debts

Montréal (City) v. Deloitte Restructuring Inc., 2020 QCCA 438, 2021 SCC 53 (39186)

This appeal raises an issue relating to compensation, or set off in a common law setting, between two debts in the context of proceedings under the CCAA. The question is whether compensation is permitted for debts between the same parties: on the one hand, a debt resulting from the Act to ensure mainly the recovery of amounts improperly paid as a result of fraud or fraudulent tactics in connection with public contracts (“Bill 26”), that predates an initial order made under the CCAA and, on the other hand, a debt between the same parties that postdates that order. This question thus affords the occasion to interpret, for the first time, certain provisions of Bill 26 as well as the regulation made under it, the Voluntary Reimbursement Program, CQLR, c. R, r. 1 (“VRP Regulation”). And in doing so clarify for public bodies the burden of proof that rests on them in seeking to establish that a claim arising from an agreement entered into under the Voluntary Reimbursement Program (“VRP”) is fraudulent. To answer the question with respect to compensation in the context of this appeal, the Court must first determine whether a claim arising from an agreement entered into under the VRP is necessarily a “claim that relates to” a “debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation” pursuant to s. 19(2)(d) of the CCAA. This question is answered in the negative. It cannot be presumed that a claim arising from the VRP falls within that provision where no evidence to this effect has been tendered. The S.C.C. concluded that a court should generally exercise its discretion to stay pre/post compensation, although it may, in rare cases, refuse such a stay. As well, the court may later lift the stay of the right to pre/post compensation in appropriate cases. In the case at bar, however, the S.C.C. concluded that the initial order stayed the right of the appellant Ville de Montréal to pre/post compensation and that it would not be appropriate to lift the stay in relation to the claims in issue.

Churches: Jurisdiction

Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2020 ONCA 10; 2021 SCC 22 (39094)

Jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. Here, the only viable candidate for a legal right justifying judicial intervention is contract. The finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required. In this case, evidence of an objective intention to enter into legal relations is missing. As such, there is no contract, there is no jurisdiction, and there is no genuine issue requiring a trial.

Civil Procedure: Limitation Periods

Grant Thornton LLP v. New Brunswick, 2020 NBCA 18; 2021 SCC 31 (39182)

This appeal turned on the standard to be applied in determining whether a plaintiff has the requisite degree of knowledge to discover a claim under New Brunswick’s limitation period statute, triggering a two-year limitation period in s. 5(1)(a). The Court of Appeal below adopted too high a standard. A claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. It follows from this standard that a plaintiff does not need knowledge of all the constituent elements of a claim to discover that claim. Here the Province discovered its claim against Grant Thornton on February 4, 2011. By then, the Province knew or ought to have known that a loss occurred and that the loss was caused in whole or in part by conduct which Grant Thornton had been retained to detect. Although the Province had this knowledge by February 4, 2011, it did not bring its claim until June 23, 2014. The claim is therefore statute-barred.

Civil Procedure: Open Court Principle; Sealing Orders

Sherman Estate v. Donovan, 2019 ONCA 465; 2021 SCC 25 (38695)

Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in the public interest of protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified. However herein, with this interest in mind, it cannot be said that the risk to privacy is sufficiently serious to overcome the strong presumption of openness; the same is true of the risk to physical safety. There will doubtless be cases where the information that poses a serious risk to privacy, bearing as it does on individual dignity, will be central to the case. But the interest in important and legally relevant information being aired in open court may well overcome any concern for the privacy interests in that same information. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection. The conclusion that the Trustees have failed to establish a serious risk to an important public interest ends the analysis. In such circumstances, the Trustees are not entitled to any discretionary order limiting the open court principle, including the sealing orders they initially obtained. The Court of Appeal rightly concluded that there was no basis for asking for redactions because the Trustees had failed at this stage of the test for discretionary limits on court openness. The decision to set aside the sealing orders rendered by the application judge is affirmed.

Civil Procedure: Court Record Access

MediaQMI inc. v. Kamel, 2019 QCCA 814; 2021 SCC 23 (38755)

In Québec, the Code of Civil Procedure gives members of the public the right to have access to court records: art. 11 C.C.P. No prior authorization is required: anyone can examine the content of such records. The Code also contains a provision dealing with the retrieval of exhibits filed in a court record: art. 108 C.C.P. In the course of a proceeding, the parties are authorized to retrieve their exhibits if all of them consent; once the proceeding has ended, they are obliged to do so, otherwise the exhibits may be destroyed by the court clerk after one year. The question at the centre of this appeal is whether art. 11 C.C.P. allows members of the public to consult exhibits that have been retrieved by the parties in accordance with art. 108 C.C.P. The right to have access to court records set out in art. 11 C.C.P. does not extend beyond what is in these records at the time they are consulted. This means that once the parties retrieve their exhibits at the end of a proceeding, members of the public will still be able to consult the record but will no longer have access to the exhibits that have been removed.

Constitutional Law: Carbon Tax; Division of Powers

Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (38663)(38781)(39116)

Parliament has jurisdiction to enact this law as a matter of national concern under the “Peace, Order, and good Government” clause of s. 91 of the Constitution. National concern is a well-established but rarely applied doctrine of Canadian constitutional law; the application of this doctrine is strictly limited to maintain the autonomy of the provinces and respect the diversity of Confederation, as is required by the principle of federalism. However, Parliament has the authority to act in appropriate cases, where there is a matter of genuine national concern and where the recognition of that matter is consistent with the division of powers. In this case, Parliament has acted within its jurisdiction.

Constitutional Law/Elections: Municipal Law; Unwritten Constitutional Principles

Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761; 2021 SCC 34 (38921)

The issue here is whether and how the Constitution of Canada restrains a provincial legislature from changing the conditions by and under which campaigns for elected municipal councils are conducted. The province acted constitutionally here. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2 (b). Nor did the Act otherwise violate the Constitution.

Constitutional Law: Invalidity Declarations

R. v. Albashir, 2020 BCCA 160; 2021 SCC 48 (39277)(39278)

In Bedford [2013] 3 S.C.R. 1101, the S.C.C. found s. 212(1)(j) of the Criminal Code which prohibited living on the avails of sex work, to be unconstitutionally overbroad because it criminalized non-exploitative actions that could enhance the safety and security of sex workers. By criminalizing, for example, legitimate bodyguards, the offence violated the rights of sex workers under s. 7 of the Charter. This declaration was suspended for one year. The S.C.C. did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension. Parliament enacted remedial legislation before the suspension expired. The former s. 212(1)(j) was replaced with a new provision that prohibits obtaining a material benefit from sexual services but exempts legitimate, non-exploitative conduct. The new legislation did not include any transitional or retroactive provisions. The purpose animating the suspension in Bedford was to avoid the deregulation of sex work (thus maintaining the protection of vulnerable sex workers) while Parliament crafted replacement legislation. In light of that purpose, the declaration of invalidity was purely prospective, effective at the end of the period of suspension. Thus, the appellants were liable under s. 212(1)(j) for their conduct during the suspension period, and could be charged and convicted under this provision even after the suspension expired. As the Bedford declaration applied purely prospectively, the appellants could be charged and convicted after the suspension expired and the declaration took effect for committing the offence of living on the avails during the suspension period. Because the trial judge found them to be abusive and exploitative, it cannot be said that they were prejudiced by the constitutional infirmity identified in Bedford.

Contracts: Duty to Exercise Contractual Discretion

Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2019 BCCA 66; 2021 SCC 7 (38601)

The duty to exercise contractual discretion is breached only where the discretion is exercised unreasonably, which here means in a manner unconnected to the purposes underlying the discretion. For example, where the exercise of discretion is arbitrary or capricious. The duty of good faith at issue here constrains the permissible exercise of discretionary powers in contract but, in so doing, it does not displace the detailed, negotiated bargain as the primary source of justice between the parties. Importantly, the good faith duty at issue does not require the respondent to subordinate its interests to those of the appellant, nor does it require that a benefit be conferred on the appellant that was not contemplated under the contract or one which stands beyond the purposes for which the discretion was agreed. Here, the appellant decries conduct that is self-interested, to be sure, and that, it says, made it impossible to achieve the fundamental benefit for which it had bargained. But in seeking damages for this loss, the appellant does not allege that the respondent committed any actionable wrong in exercising the discretion provided for under the contract.

Contracts: Non-liability Clauses

6362222 Canada inc. v. Prelco inc., 2019 QCCA 1457; 2021 SCC 39 (38904)

Createch breached its fundamental obligation under the contract, namely to inquire into Prelco’s specific operating needs and requirements and to propose an approach to implementing an integrated management system that would be capable of satisfying them.  Although the Court of Appeal was right to refer to public order and absence of a cause in support of its analysis of the validity of the clause at issue, the appeal should be allowed. Neither of the legal bases for the doctrine suffices to negate the non-liability clause to which the parties freely consented, as neither public order nor the non-existence of the obligation can be successfully argued here. The clause should be found to be valid despite the breach of a fundamental obligation alleged against Createch. In summary, given that neither of the bases for the doctrine of breach of a fundamental obligation applies and that none of the respondent’s arguments are accepted, the trial judge and the Court of Appeal erred in law in finding that the limitation of liability clause was inoperative; that clause is not ambiguous, and the trial judge could not annul it; the will of the parties had to be respected.

Contracts: Releases

Corner Brook (City) v. Bailey, 2020 NLCA 3; 2021 SCC 29 (39122)

There is no special interpretive principle that applies to releases. The “Blackmore Rule” has been overtaken by the general principles of contract law in Sattva. The Blackmore Rule has outlived its usefulness and should no longer be referred to. Any judicial tendency to interpret releases narrowly is not a function of any special rule, but rather a function of releases themselves. In the instant case, the application judge interpreted the release broadly to include Mrs. Bailey’s third party claim in accordance with Sattva, and his reasons should have been reviewed on a palpable and overriding error standard. As the application judge made no reviewable error in his interpretation of the release, the appeal is allowed and the order reinstated.

Courts: Jurisdiction

Reference re Code of Civil Procedure (Qué.), art. 35, 2021 SCC 27 (38837)

Factors to be looked at: scope of the jurisdiction granted by art. 35 para. 1 C.C.P., exclusivity of the grant, high monetary limit, available appeal mechanisms, absence of a societal objective capable of justifying the legislation. The weighing of the relevant factors means the grant to the Court of Québec of exclusive jurisdiction over civil disputes concerning contractual and extracontractual obligations up to a value of less than $85,000 unduly compromises the position of s. 96 courts and is unconstitutional. The scope of the jurisdiction granted by art. 35 para. 1 C.C.P., combined with the various features of the institutional context in which that jurisdiction is exercised, transforms the Court of Québec into a prohibited parallel court and impermissibly infringes on the core jurisdiction of the Superior Court. This necessarily undermines the crucial role the Québec Superior Court plays in the Canadian judicial system.

Courts/Media: Publication Bans

Canadian Broadcasting Corp. v. Manitoba, 2019 MBCA 122; 2021 SCC 33 (38992)

The Court of Appeal here had ordered a continuing publication ban in its judgment on the merits without a hearing to determine whether the open court principle is limited in the circumstances; they should instead have considered whether it was appropriate to set aside its publication ban on motion by the CBC. The matter is remanded to the Court of Appeal to decide the CBC’s motion; that court is best placed to decide the discretionary and fact specific issues raised. The Court of Appeal’s interpretation of functus officio was unnecessary to protect the values of finality and orderly appellate review, and instead had an adverse impact on the opportunity of the media to make representation; the better view is that the Court of Appeal retained jurisdiction to oversee its record even after the certificate of decision in the underlying proceeding on the merits was entered.

Criminal Law: Inconsistent Verdicts

R. v. R.V., 2019 ONCA 664; 2021 SCC 10 (38854)

The Crown can seek to reconcile apparently inconsistent verdicts by showing, to a high degree of certainty, an acquittal was the product of a legal error in the jury instructions, the legal error did not impact the conviction, and the error reconciles the inconsistency by showing the jury did not find the accused both guilty and not guilty of the same conduct. If the Crown discharges that burden, appellate intervention is not warranted because the verdicts are not actually inconsistent and therefore not unreasonable on the basis of inconsistency.

Criminal Law: Jury Selection

R. v. Chouhan, 2020 ONCA 40; 2021 SCC 26 (39062)

Parliament, in abolishing peremptory challenges, sought to give greater effect to provincial initiatives to increase jury representativeness, which in turn should enhance the diversity of jury composition. Provinces are free and even encouraged to act to increase the diversity of those who appear for jury duty, including by pursuing the measures identified in the Iacobucci Report (see also Kokopenace, at paras. 126-27). In all cases, however, the provinces’ constitutional obligation requires them to make “reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross section of society, and (2) deliver jury notices to those who have been randomly selected” (Kokopenace, at para. 61).

Criminal Law: Jury Selection Process; Curative Proviso

R. v. Esseghaier, 2019 ONCA 672; 2021 SCC 9 (38861)

The curative proviso in s. 686(1) (b)(iv) can be applied to cure jury selection errors, as here where both statutory requirements in s. 686(1) (b)(iv) are met: (1) the trial court had jurisdiction over the class of offence, as the offences at issue were indictable and the Ontario Superior Court of Justice has jurisdiction over all indictable offences; and (2) there was no prejudice to the accused.

Criminal Law: Parties to Offences; Issue Estoppel

R. v. Cowan, 2020 SKCA 77; 2021 SCC 45 (39301)

The trial judge committed an error of law in his analysis of party liability, which had a material bearing on the acquittal. The appropriate remedy is therefore to set aside the acquittal and order a new trial; however, the new trial must be a full retrial; while appellate courts have broad powers under s. 686(8) of the Criminal Code to “make any order, in addition, that justice requires”, this does not include the power to limit the scope of a new trial to a particular theory of liability on a single criminal charge. For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. An accused’s guilt is the same regardless of the way in which they participated in the offence –– the person who provides the gun is guilty of the same offence as the person who pulls the trigger. Sections 21 and 22 of the Criminal Code set out the various ways in which an accused may participate in and be found guilty of a particular offence. Those provisions codify both liability for an accused who participates in an offence by actually committing it, under s. 21(1)(a) (principal liability); and liability for an accused who participates in an offence by, for example, abetting or counselling another person to commit the offence, under s. 21(1)(c) or s. 22(1) (party liability). Where, as here, an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party. This principle applies where an accused is prosecuted as either an abettor or counsellor. The essential elements of abetting are well established. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence. As for the mens rea, it has two components: intent and knowledge. The abettor must have intended to abet the principal in the commission of the offence and known that the principal intended to commit the offence. Although the jurisprudence setting out the elements of abetting refers to encouraging “the principal”, intending to abet “the principal”, and knowing that “the principal” intended to commit the offence, the Crown is not required to prove the identity of “the principal” or their specific role in the commission of the offence for party liability to attach. While one of the requisite elements of counselling is the actual participation in the offence by the person counselled, that person can participate not only as a principal, but also as a party. This is reflected by the wording of s. 22(1), which states that an accused is a party if they “counse[l] another person to be a party to an offence and that other person is afterwards a party to that offence”. The precise manner of participation is irrelevant, since whether the person counselled is a principal or a party, “[t]he focus on a prosecution for counselling is on the counsellor’s conduct and state of mind, not that of the person counselled” (Hamilton, at para. 74). Sections 21 and 22 do not create multiple offences; rather, they merely provide alternative paths to the same destination by setting out different ways in which an accused may participate in and be found guilty of an offence. In the present case, no issue can be said to have been finally decided in the first trial because the result of that trial — the acquittal on the single charge of armed robbery — has been entirely set aside. As the trial judge committed a legal error that had a material bearing on the acquittal, the verdict is necessarily invalid. The findings in the first trial that led to his acquittal must therefore be set aside and cannot form the basis of a claim of issue estoppel.

Criminal Law: Prosecutorial Immunity

Ontario (Attorney General) v. Clark, 2019 ONCA 311; 2021 SCC 18 (38687)

One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police. The police’s role is to investigate crime. The Crown prosecutor’s role, on the other hand, is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused.  Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’s compliance with his or her public duties. Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically “separate and distinct” roles.

Criminal Law: Self-defence

R. v. Khill, 2020 ONCA 151; 2021 SCC 37 (39112)

In March 2013, Parliament’s redesigned Criminal Code provisions on self-defence came into force. These changes not only expanded the offences and situations to which self-defence could apply, but also afforded an unprecedented degree of flexibility to the trier of fact. This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused’s response by reference to a non-exhaustive list of factors, one of which is “the person’s role in the incident”. Herein, this jury was not instructed to consider the effect of Mr. Khill’s role in this incident on the reasonableness of his response; this was an error of law that had a material bearing on the jury’s verdict. The ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. Fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it; they need to consider whether the accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

Criminal Law: Sentencing; Starting Points; Ranges

R. v. Parranto, 2019 ABCA 457; 2021 SCC 46 (39227)

Starting points for sentencing are to be properly treated as non-binding guidance by both sentencing and appellate courts. There are risks inherent in using any form of quantitative sentencing guidance, including sentencing ranges; but these risks can be avoided if appellate courts adhere to the deferential standard of review in sentencing appeals, and if the S.C.C. provides clear direction on how appellate courts should account for starting points when reviewing sentences for errors in principle and demonstrable unfitness. There is no need to disavow the starting point approach to sentencing. Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence. It is not for the S.C.C. to dictate which of these tools can or cannot be used by appellate courts across the country. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code, and with the proper appellate standard of review. Quantitative appellate guidance — whether in the form of a range or a starting point — may draw on sentences imposed in past cases, or it may be intended to change the existing approach to sentencing for a particular offence. In some cases, however, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders; as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences. An appellate court may derive a starting point in whole or in part from past sentencing decisions. It may also choose to depart from past trends to recalibrate how the gravity of the offence is weighed in the proportionality analysis. Like established ranges, then, starting points may reflect “collective court experience” by drawing on an overview of the case law for a range of sentences imposed, but they may also represent a departure based on a “consensus view of [all] the social values and policy considerations relating to the category of crime in question” (Arcand, at para. 104). Ranges and starting points are simply different paths to the same destination: a proportionate sentence. Courts of Appeal have discretion to choose which form of guidance they find most useful and responsive to the perceived needs of their jurisdiction, which may vary across the country.

Criminal Law: Sexual Assault by Young Person; Appeals as of Right

R. v. C.P., 2019 ONCA 85; 2021 SCC 19 (38546)

This is a challenge to the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which denies young persons rights of appeal available to all adults convicted of indictable offences, namely an automatic right to appeal to the Supreme Court of Canada when there is a dissent in the Court of Appeal on a question of law or when the Court of Appeal enters a finding of guilt on a Crown appeal from an acquittal at trial. Under the YCJA, they are not available to young persons in the criminal justice system. The limitation in s. 37(10) constitutes a prima facie breach of s. 15 that cannot be justified under s. 1:

    • The fact that the overall purpose of the legislation is ameliorative is of no relevance in determining whether a particular limitation represents a prima faciebreach of s. 15 . It may factor contextually into the justificatory analysis in s. 1, but what is at issue at the breach stage is the impact of the limitation on the claimant group, not the purpose of the legislation as a whole. The crucial fact remains that the YCJA does not provide any analogous procedural substitute for a guaranteed right to appeal to the S.C.C.
    • The objective of timeliness is not a justification for denying access to a procedural protection that has historically served to guard against miscarriages of justice. There is no justification for a speedy resolution if the resolution is based on an unfair trial.

Criminal Law: Sexual Assault; Capacity to Consent; Sufficiency of Reasons

R. v. G.F., 2019 ONCA 493; 2021 SCC 20 (38801)

Only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go further and ask whether that consent is otherwise vitiated. Vitiation was not at issue in this case; the only live issue was whether the complainant subjectively consented. The S.C.C. has consistently reiterated the importance of a functional and contextual reading of the trial judge’s reasons. The duty of the appellate court is to determine whether the aggrieved party understands what the trial judge decided and why, and whether the reasons permit appellate review. In this case, the trial judge’s reasons were sufficient to satisfy this purpose.

Criminal Law: Young Accuseds; Bail

R. v. T.J.M., 2021 SCC 6 (38944)

A superior court justice has jurisdiction to hear and decide a bail application by a young person charged with an offence listed in s. 469 of the Criminal Code. And that jurisdiction is held concurrently with the judges of the designated youth justice court for the province. A word of caution: this appeal concerns only the question of bail jurisdiction before trial; once trial has started, it will typically be the case that a bail application would be brought before the trial judge; whether it must be brought before the trial judge, however (for example, where the trial has adjourned) is a question that need not be decided here.

Family Law: Child Support; Decrease/Arrears

Colucci v. Colucci, 2019 ONCA 561; 2021 SCC 24 (38808)

Does the framework for retroactive decreases reflect the flexible and discretionary approach applied to retroactive increases in D.B.S. With certain modifications, it should. A payor who has established a past decrease in income is not automatically entitled to a retroactive decrease of support back to the date of the decrease. Discretionary factors parallel to those considered in D.B.S. may justify departing from the presumptive date in favour of a longer or shorter period of retroactivity. For consistency, this presumption-based approach should be mirrored where the recipient seeks a retroactive increase. Once a past material change in income is established, a presumption is triggered in favour of retroactively increasing support to a certain date, with the D.B.S. factors guiding the court’s exercise of discretion in deciding whether to depart from that date. Given the informational asymmetry herein between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication. Indeed, effective notice in this context is only “effective” when there has been disclosure of the changed financial circumstances. At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity.

Family Law: Mediation; Confidentiality

Association de médiation familiale du Québec v. Bouvier, 2020 QCCA 115, 2021 SCC 54 (39155)

Confidentiality is necessary in any mediation to allow for frank discussions between the parties in order to encourage settlements. It is also true that, unlike in the case of civil or commercial mediation, negotiations following the breakdown of a relationship often take place during a period of personal upheaval that may heighten the vulnerability of either spouse. However, the protection of vulnerable individuals is assured not by absolute confidentiality, but by a set of special norms — some of which are legislated, while others reflect usages in practice or are found in the standard mediation contract. The interpretation of the standard mediation contract widely used in Québec, and of the contract signed by the spouses in this case, supports the conclusion that parties to such a process do not exclude from the outset the settlement exception from Union Carbide. Therefore, where spouses enter into a settlement at the end of a mediation process governed by the standard contract, the settlement exception can apply and allow them to file in evidence the communications that are necessary to establish the existence or terms of their agreement. Even though the settlement exception applies in family mediation governed by the standard contract scheme, proof that the parties actually entered into an agreement must still be made in accordance with the rules of the law of evidence. The summary of mediated agreements provided to the parties by the mediator at the end of the family mediation process is not a contract that can serve to prove such an agreement, but simply a working tool for the spouses. Prepared by the mediator on the basis of the spouses’ discussions during mediation, the summary cannot satisfy the requirement that there be an agreement of wills for the formation of a valid contract, because, at the time it is given to the parties, it does not reflect firm offers to contract or firm acceptances by the spouses. That being said, nothing prevents the parties from entering into a contract whose terms are identical to those recorded by the mediator in the summary of mediated agreements. They can do so by signing the summary or by consenting expressly or tacitly after it has been given to them. Because the parties are encouraged to obtain independent legal advice after receiving that document, they may also decide to bind themselves contractually on different terms, or not to bind themselves at all. In any event, the unsigned summary of mediated agreements given to the spouses is not a contract, because it is not a juridical act that results from an agreement of wills between the spouses and that is intended to produce legal effects.

Human Rights: Discrimination

Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2019 QCCA 2042; 2021 SCC 43 (39041)

Very often, discrimination complaints are made in the context of employment, housing, or goods and services available to the public. In this case, the complaint that gave rise to the appeal is quite different, as it concerns a professional comedian who mocked a public figure with a disability. However, the complaint underlying this appeal led not to an action in defamation based on the comments made, but rather to a discrimination claim based on those comments. Could the Human Rights Tribunal conclude that the discrimination complaint was well founded? The S.C.C. held the answer must be no, because the elements of a discrimination claim under the Québec Charter are not established.  Briefly stated, a complainant must, in order to succeed, establish all the elements of discrimination, as required by s. 10 of the Québec Charter. The complainant must show (1) a distinction, exclusion or preference; (2) based on one of the grounds listed in the first paragraph of s. 10; (3) that has the effect of impairing the right to full and equal recognition and exercise of a human right or freedom.

Insurance: Imputed & Constructive Knowledge

Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2019 ONCA 800; 2021 SCC 47 (38949)

Where an insurer is shown to be in possession of facts demonstrating a breach, an inference may be drawn that the insurer, by its conduct, intended to alter its legal relationship with the insured ⸺ notwithstanding the fact that the insurer did not realize the legal significance of the facts or otherwise failed to appreciate the terms of its policy with the insured. Here, it is undisputed that, when RSA defended, it did not know of the fact of consumption of alcohol prior to the accident, which fact, if known, would have demonstrated policy breach. The argument that RSA constructively knew of the breach, and is thus taken to know what it ought to or should have known is premised on RSA’s alleged breach of a duty to diligently investigate the claim against its insured. This argument was rejected, and with it the possibility of recognizing constructive knowledge arising from a breach of a duty to investigate as grounding promissory estoppel, for two reasons. First, this argument entails a significant — and unwise and unnecessary — modification of the obligation an insurer owes to the insured in the context of a liability claim. This duty exists because insurers have strong economic incentives to deny coverage, which the S.C.C. has sought to moderate in the public interest. Secondly, there is no basis in law for a third‑party claimant to be able to ground an estoppel argument in any alleged breaches of an insurer’s duty to its insured. In other words, the duty to investigate fairly, in a balanced and reasonable manner, is owed only to the insured, not third parties.

Intellectual Property: Copyright

York University v. Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77; 2021 SCC 32 (39222)

The trial judge here found the interim tariff was enforceable against York and that neither its Fair Dealing Guidelines nor its actual practices constituted fair dealing. The Federal Court of Appeal allowed York’s appeal on the tariff enforcement action but dismissed its appeal on the fair dealing counterclaim. The court held that Board approved tariffs are voluntary for users. If a user who chooses not to be licensed under a tariff makes an unauthorized use of a work, the remedy is an infringement action which Access Copyright does not have standing to assert because it does not own the copyright in any of the works and is not an exclusive licensee or an assignee. While this disposed of the dispute between the parties, the court went on to evaluate York’s appeal on the fair dealing counterclaim. It concluded that York could not establish that all copying within its Guidelines is fair and refused to issue the Declaration. The S.C.C. agreed with the Federal Court of Appeal that the tariff is not enforceable against York University, but not grant York’s requested Declaration, nor endorse the fair dealing analysis conducted by the Federal Court and the Federal Court of Appeal.

Labour Law: Arbitrator Jurisdiction

Northern Regional Health Authority v. Horrocks, 2017 MBCA 98; 2021 SCC 42 (37878)

Where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and the Manitoba Labour Relations Act is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement. In its essential character the complaint herein alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes; it follows that the adjudicator did not have jurisdiction over the complaint.

Private International Law: Foreign Judgments

H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2020 ONCA 12; 2021 SCC 44 (39130)

To determine whether a defendant is carrying on business in a jurisdiction, the court must inquire into whether it has some direct or indirect presence in the jurisdiction, accompanied by a degree of business activity that is sustained for a period of time. Whether or not a corporation is “carrying on business” is a question of fact, and in order to determine whether this definition is met, the court should consider the ten indicia noted in the Adams case, and herein. Some kind of actual presence, whether direct or indirect, is required. A physical presence in the form of maintenance of physical premises will be compelling, and a virtual presence that falls short of an actual presence will not suffice. There is no error of law in the application judge’s interpretation of s. 3(b) of the REJA, nor is there any palpable and overriding error in his assessment of whether Antigua was carrying on business in British Columbia. In concluding that Antigua was not carrying on business in British Columbia, the application judge made five main findings of fact. All five of these findings of fact are supported by the evidentiary record and are without error.

Tax: Foreign Accrual Property

Canada v. Loblaw Financial Holdings Inc., 2020 FCA 79; 2021 SCC 51 (39220)

Does a parent corporation conduct business with its controlled foreign affiliate when it provides capital and exercises corporate oversight? The answer is a straightforward no. Re interpreting the precise words of the arm’s length requirement — “the business (other than any business conducted principally with persons with whom the affiliate does not deal at arm’s length)” — found in the financial institution exception, in accordance with the ordinary rules of statutory interpretation, when these words are read in their grammatical and ordinary sense, in harmony with their context and the ITA’s objects, it becomes clear that they do not encompass an assessment of capital contributions or corporate oversight. The necessary inference to be drawn from the express language of s. 95(2.4)(b) is that Parliament chose not to include a competition element in the financial institution exception. As for the Crown’s allegation that the purpose of the arm’s length requirement is anti-avoidance, this similarly amounts to an attempt to create a specific anti-avoidance rule absent any expressed legislative intent. To permit this argument to succeed would require the S.C.C. to rewrite the legislation. If taxpayers are to act with any degree of certainty, then full effect should be given to Parliament’s precise and unequivocal words. The grammatical and ordinary meaning of the words “business conducted”, read in the context and in light of the purpose of the foreign accrual property income regime, clearly shows that Parliament did not intend capital injections to be considered.

Tax: Treaties; GAAR

Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43; 2021 SCC 49 (39113)

The principles of predictability, certainty, and fairness and respect for the right of taxpayers to legitimate tax minimization are the bedrock of tax law. In the context of international tax treaties, respect for negotiated bargains between contracting states is fundamental to ensure tax certainty and predictability and to uphold the principle of pacta sunt servanda, pursuant to which parties to a treaty must keep their sides of the bargain. Section 245 of the Income Tax Act, known as the general anti-avoidance rule (“GAAR”), acts as a legislative limit on tax certainty by barring abusive tax avoidance transactions, including those in which taxpayers seek to obtain treaty benefits that were never intended by the contracting states. C.R.A. is asking the S.C.C. to use GAAR to change the result, not by interpreting the provisions of the Treaty through a unified textual, contextual, and purposive analysis, but by fundamentally altering the criteria under which a person is entitled to the benefits of the Treaty, thus frustrating the certainty and predictability sought by the drafters. In raising GAAR, C.R.A. is now seeking to revisit its bargain in order to secure both foreign investments and tax revenues. But if GAAR is to remain a robust tool, it cannot be used to judicially amend or renegotiate a treaty. C.R.A. has not discharged the burden of proving abusive tax avoidance. Tax avoidance is not tax evasion, and there is no suggestion by either party that the transaction in this case was evasive. In addition, tax avoidance should not be conflated with abuse. Even if a transaction was designed for a tax avoidance purpose and not for a bona fide non-tax purpose, such as an economic or commercial purpose, it does not mean that it is necessarily abusive within the meaning of GAAR. The courts’ role is limited to determining whether a transaction abuses the object, spirit, and purpose of the specific provisions relied on by the taxpayer. It is not to rewrite tax statutes and tax treaties to prevent treaty shopping when these instruments do not clearly do so.

Torts/Municipal Law: Negligence; Slip & Fall

Nelson (City) v. Marchi, 2020 BCCA 1; 2021 SCC 41 (39108)

In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, the S.C.C. explained that “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — must be shielded from liability in negligence. In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision. How to distinguish immune policy decisions from government activities that attract liability for negligence? The rationale for core policy immunity serves as an overarching guiding principle. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. Four factors that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. The separation of powers rationale animating the immunity guides how the factors weigh in the analysis. Here, on duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City owed a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, the S.C.C. is not well placed to determine the standard of care and causation issues, and so dismissed the appeal and ordered a new trial in accordance with these reasons.

Oral Judgments

Criminal Law: Delay

R. v. Lai, 2021 BCCA 105, 2021 SCC 52 (39577)

Moldaver J.: “R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32, states as follows:

    • Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered.

In this case, the appellant, Mr. Lai, had the statutory right to re-elect when he did — but he waited 15 months to re-elect after his trial dates were set in Provincial Court. This was despite being informed by Crown counsel that he could preserve his trial dates by re-electing earlier. Nonetheless, he waited 7 months after that warning to exercise his right to re-elect. This conduct had the direct result of losing the trial dates that were set in Provincial Court and causing an additional delay of 13 months. The trial judge rejected Mr. Lai’s explanation regarding the re-election. Based on the trial judge’s own findings and conclusions, the re-election was not done legitimately to respond to the charges. To that extent, the trial judge erred in not characterizing the delay as defence delay and deducting it as such. For these reasons, a majority of the Court would dismiss the appeal. Justice Côté is dissenting. She would have allowed the appeal substantially for the reasons of Butler J.A.”

Criminal Law: Delay

R. v. Yusuf, 2020 ONCA 220; 2021 SCC 2 (39110)

Moldaver J.: “This appeal comes to us as of right. The three appellants were convicted at trial on charges of assault causing bodily harm. Two of the appellants, Messrs. Jamis Yusuf and Jamal Yusuf, were also convicted of unlawful confinement. Following the release of the trial judge’s reasons for judgment, the appellants moved for a stay of proceedings on the basis that their right to be tried within a reasonable time under s. 11 (b) of the Canadian Charter of Rights and Freedoms was infringed. The trial judge agreed and stayed the proceedings against them. The Crown appealed from that order and in a unanimous decision, the Court of Appeal for Ontario, applying the appropriate standard of review, allowed the appeal and restored the convictions. We agree with the Court of Appeal in the result and would accordingly dismiss the appeal. In doing so, we have chosen to leave for another day various legal issues that arise from this Court’s decisions in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, including whether and in what circumstances multiple accused should be treated communally as opposed to individually when assessing defence delay under s. 11 (b); whether discrete events as defined in Jordan attributable to a particular accused should be deducted only from the accused responsible for those events or be deducted communally from the co-accused as well; and whether a s. 11 (b) application can be brought post conviction and if so, whether a remedy other than a stay of proceedings is available. In this case, we are of the view that none of these legal issues, taken alone or together, would have affected the resolution of this appeal. Our decision to leave these legal issues to another day is influenced by several matters, including the absence of interveners who could shed light on them; the fact that this is a transitional case in which 70% of the trial was completed before the release of Jordan; and the lack of meaningful efforts on the part of the three accused to move the trial process ahead in cooperation with the Crown and the trial court. As the Court of Appeal observed, correctly in our view, this trial was by any measure uncomplicated. Based on the foregoing, no proper application of Jordan would have resulted in a stay here.”

Criminal Law: Firearms Offences; Circumstantial Evidence

R. v. Dingwall, 2020 BCCA 108; 2021 SCC 35 (39274)

Rowe J.: “We would dismiss the appeal substantially for the reasons of Newbury J.A., at paras. 51 and 53. We would add that notwithstanding a misstatement of law with respect to circumstantial evidence set out by the trial judge in para. 9(b) of his reasons (2017 BCSC 1457 (CanLII)), the trial judge properly applied the law with respect to circumstantial evidence. Accordingly, no reliance need be placed on the curative authority under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Finally, we would note that while the Court of Appeal, in paras. 39 and 50, addressed the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, the scope and application of that rule is not before this Court.”

Criminal Law: Fraud; s.9 Canada Evidence Act

R. v. Sheikh, 2020 QCCA 1266; 2021 SCC 13 (39372)

The Chief Justice: “The Crown appeals as of right from a decision in which a majority of the judges of the Québec Court of Appeal acquitted the Respondent on charges of fraud against him. The Crown submits that the Court of Appeal erred in concluding that the verdict of guilty was unreasonable and that the trial was unfair because, in particular, of the Crown’s failure to have recourse to s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5, during the testimony of witness Vallières, and of an inadequate assessment of the circumstantial evidence. Essentially for the reasons of Schrager J.A., a majority of judges of this Court are not convinced that the Crown’s failure to have recourse to s. 9 of the Canada Evidence Act made the trial unfair, and they agree with Schrager J.A. that the verdict was not unreasonable. Kasirer J., essentially for the reasons of the majority of the Court of Appeal, would have dismissed the appeal. For these reasons, the appeal is allowed and the verdict of guilty restored.”

Criminal Law: Homicide

R. v. Deslauriers, 2020 QCCA 484; 2021 SCC 3 (39131)

The Chief Justice: “The Crown appeals as of right on questions of law further to the majority judgment of the Québec Court of Appeal setting aside the guilty verdict entered by Judge Joëlle Roy of the Court of Québec and ordering a new trial. A majority of this Court would dismiss the appeal for the reasons given by Chamberland J.A. Judge Roy erred in law in denying Mr. Deslauriers the right to obtain and, if need be, file documents relating to the existence of three criminal investigations and a report from the Centre jeunesse des Laurentides involving the victim. There was a likely and reasonable possibility that the information in question could assist Mr. Deslauriers in exercising his right to make full answer and defence. Moreover, Judge Roy erred in her interpretation and treatment of the evidence crucial to the accused, such as to cause a miscarriage of justice. Because of our reasons, however, it is not necessary to dispose of this question already decided by the Québec Court of Appeal. Judge Roy also erred in her treatment of the testimony given by an expert, Mr. Poulin, concerning Mr. Deslauriers’s conduct as a police officer, which was central to his defences. Finally, although it is not necessary to deal with the recusation aspect of the judgment under appeal, and insofar as the Crown wishes to continue the proceedings leading to a second trial, it will have to proceed before another trial judge. For these reasons, the appeal is dismissed. Abella and Brown JJ. are of the view that the documents sought by the defence do not meet the threshold of “likely relevance” within the meaning of R. v. O’Connor, [1995] 4 S.C.R. 411, and R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. They are also of the view that the expert, Bruno Poulin, strayed beyond the proper scope of his expert evidence and that his testimony was neither relevant nor necessary within the meaning of R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272. For these reasons, they would have allowed the appeal, set aside the Court of Appeal’s judgment and restored the guilty verdict.”

Criminal Law: Homicide; Foster Children

R. v. Goforth, 2021 SKCA 20 (39568)

The Chief Justice: “We are all of the view to allow the appeal, restore the convictions and order the case to be remitted to the Court of Appeal for consideration of the sentencing appeal. Reasons to follow.”

Criminal Law: Internet Child Luring

R. v. Ghotra, 2020 ONCA 373; 2021 SCC 12 (39215)

The Chief Justice: “We are all of the view to dismiss the appeal for the reasons of Justice Miller of the Ontario Court of Appeal.”

Criminal Law: Joint/Co-principal Liability

R. v. Strathdee, 2019 ABQB 479; 2021 SCC 40 (39556)

Rowe J.: “Mr. Strathdee appeals as of right to this Court under s. 691(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46, on the basis that the Alberta Court of Appeal overturned his acquittal for unlawful act manslaughter and entered a conviction. The trial judge, sitting as judge alone, had acquitted Mr. Strathdee after considering joint/co-principal liability and abetting under s. 21(1)(a) and 21(1)(c), respectively, of the Criminal Code (2019 ABQB 479). The charges against Mr. Strathdee stemmed from a group assault in which several victims sustained multiple injuries and one victim, Mr. Tong, sustained a single stab wound which caused his death. We agree with the Court of Appeal that there is no basis for the view that the stabbing of Mr. Tong was a distinct act outside the scope of the group attack. Having regard to the findings of fact in paras. 137 and 156-59 (CanLII) of the trial decision, and the statement of law set out by the Court of Appeal at paras. 61, 66 and 68 of its decision, this Court affirms the result of the Alberta Court of Appeal that Mr. Strathdee is guilty of unlawful act manslaughter. We also wish briefly to clarify a statement of law in R. v. Cabrera, 2019 ABCA 184, 95 Alta. L.R. (6th) 258, aff’d R. v. Shlah, 2019 SCC 56. Any implication from Cabrera that joint/co-principal liability is automatically eliminated if the evidence demonstrates application of force by only a single perpetrator is not accurate. Joint/co-principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, is fully consistent with the foregoing. Accordingly, we would dismiss the appeal.”

Criminal Law: Prior Inconsistent Statements

R. v. Smith, 2020 BCCA 271; 2021 SCC 16 (39401)

Brown J.: “We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. In particular, we agree with Dickson J.A. that the trial judge’s failure to deal properly with the prior inconsistent statements does not mean that she failed to consider or give effect to them (R. v. Burns, [1994] 1 S.C.R. 656, at p. 665). Further, and even if the trial judge did not consider the statements in assessing the complainant’s credibility and reliability, that error did not cause a miscarriage of justice. Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221). It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7). While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard. In this case, we agree with Dickson J.A. that the inconsistencies — assuming they are inconsistencies — between the complainant’s statements to her friend shortly after the assault and her trial testimony are not significant. While it may have been preferable for the trial judge to address them, her failure to do so does not cast doubt on her assessment of the complainant’s credibility and reliability or the safety of the conviction. Consequently, the threshold for a miscarriage of justice has not been met.”

Criminal Law: Search Warrants

R. v. Reilly, 2020 BCCA 369; 2021 SCC 38 (39531)

Moldaver J.: “We would dismiss this appeal, substantially for the thorough reasons of Justice Griffin on behalf of the majority of the Court of Appeal. We agree that the trial judge erred in his analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms by considering Charter-compliant police behaviour as mitigating. We also agree that the trial judge erred by improperly conducting the overall balancing — whether including the evidence would bring the administration of justice into disrepute — within the first two factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The language of Grant is clear: this overall balancing occurs at the end (para. 85). Judges must first consider whether each of the three factors weigh in favour of inclusion or exclusion of the evidence before asking whether — having regard to all factors — inclusion of the evidence would bring the administration of justice into disrepute. Conducting overall balancing within the first two Grant factors waters down any exclusionary power these factors may have. This type of analysis undermines the purpose and application of s. 24(2). With respect, however, we are unable to agree with the majority of the Court of Appeal that the trial judge properly considered all relevant Charter-infringing state conduct under the first Grant factor. The trial judge considered the Charter-infringing state conduct related to only two of the three s. 8 breaches. Failing to consider state conduct that resulted in the third breach — the clearing search — was an error. Regardless of whether the third breach was caused by the first two breaches, and regardless of the fact that it was considered necessary in the wake of Constable Sinclair’s unlawful entry, it was nonetheless a breach of Mr. Reilly’s s. 8 Charter-protected rights and must be considered under the first Grant factor. Trial judges cannot choose which relevant Charter-infringing state conduct to consider. The trial judge committed errors that required the majority of the Court of Appeal to conduct a fresh s. 24(2) analysis. In our view, we do not lack jurisdiction to consider alleged errors in the majority’s fresh analysis. We see no reason to interfere with their fresh analysis. Accordingly, we would dismiss the appeal and affirm the exclusion of evidence and the order for a new trial.”

Criminal Law: Sexual Assault; R. v. (W.)D.; Similar Fact Evidence

R. v. Gul, 2020 QCCA 1557; 2021 SCC 14 (39414)

The Chief Justice (Moldaver and Kasirer JJ. concurring): “The appellant appeals as of right from a decision in which a majority of the Québec Court of Appeal upheld a verdict of guilty entered by the trial judge. A majority of judges of this Court would, for the reasons of Savard C.J.Q. and Schrager J.A., and in particular for the reasons set out at para. 44 of the Court of Appeal’s decision, dismiss the appeal.” Rowe J. (Brown J. concurring): “The Crown acknowledges, and we agree with the Québec Court of Appeal, that the trial judge erred in characterizing a prior event as [translation] “probative evidence of past misconduct” (2018 QCCQ 7257, at para. 21 (CanLII)). However, unlike our colleagues, we are of the view that the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, cannot apply. At para. 21 of his reasons, the trial judge explained that the evidence in question was probative to “demonstrate similarity of conduct, determine the credibility of the accused, establish the identity of the offender and enhance the credibility of the complainant, because her version is contradicted by that of the accused”. In our view, because the assessment of the credibility of the accused and of the complainant was central to the case, this is not a situation in which the Crown’s evidence was overwhelming and conviction was inevitable. As this Court held in R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82, whether the evidence against an accused is overwhelming is a higher standard than the requirement that the Crown prove its case beyond a reasonable doubt. For these reasons, we would therefore have allowed the appeal and ordered a new trial on the same charges.”

Criminal Law: Sexual Offences re a Minor

R. v. Ramos, 2020 MBCA 111; 2021 SCC 15 (39466)

The Chief Justice: “We are all of the view, for the reasons of Justice Mainella of the Court of Appeal of Manitoba, to dismiss the appeal.”

Criminal Law: Sexual Offences

R. v. J.D., 2020 QCCA 1108; 2021 CanLII 112491 (39370)

The Chief Justice: “We are all of the view that the appeal should be allowed, the convictions on counts 1 and 2 concerning C.D. and 9 to 13 concerning S.D. restored, the sentences on counts 1 and 2 and 9 to 13 restored, and J.D. ordered to report to prison authorities in the next 48 hours. Reasons to follow.”

Criminal Law: Sexual Offences

R. v. W.O., 2020 ONCA 392; 2021 SCC 8 (39245)

Côté J.: “We are all of the view that the appeal should be dismissed, substantially for the reasons of Hoy A.C.J.”

Criminal Law: Sexual Offences; Criminal Harassment

R. v. Morrow, 2020 ABCA 407; 2021 SCC 21 (39456)

Moldaver J. (Karakatsanis, Rowe and Kasirer JJ. concurring): “A majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court of Appeal at paras. 16 and 17 of its judgment. As the majority observed, the record clearly supports the inference drawn by the trial judge that Mr. Morrow’s conduct represented an attempt to dissuade the complainant, by corrupt means, from giving evidence. Mr. Morrow knew he had recently been charged with criminal harassment and that he was bound not to contact the complainant. Despite this, he attended her home uninvited and engaged her in a prolonged and distressing discussion about the process for withdrawing the charges and her reasons for bringing them. The complainant testified that the exchange made her feel “[p]ressured to please” Mr. Morrow and to get him out of the house (A.R., vol. II, at p. 30). Shortly thereafter, Mr. Morrow sexually assaulted her, which served to exacerbate her concerns. On the basis of this evidence, it was open for the trial judge to find that Mr. Morrow’s intention was to apply pressure on the complainant and ultimately to manipulate her into dropping the charges against him. The fact that Mr. Morrow may have also been motivated by a desire to rekindle his relationship with the complainant did not undermine the availability of this finding. There was also evidence that contradicted Mr. Morrow’s position that he was simply responding to a request for information. The complainant made no such request to Mr. Morrow and she did not expect, nor was she interested in, the information he provided. In these circumstances, and having regard to the fact that survivors of domestic abuse are particularly vulnerable to acts of intimidation and manipulation, the trial judge’s verdict was reasonable. There is no basis for appellate intervention.”  Côté J. (in dissent): “The wording of the charge required evidence that the appellant attempted to dissuade the complainant “by threats, bribes or other corrupt means from giving evidence” (A.R., vol. I, at p. 2). There is no such evidence here. The appellant’s behaviour cannot, in this case, be characterized as a “corrupt means” within the meaning of s. 139(3) of the Criminal Code, R.S.C. 1985, c. C-46. Appealing to or preying on affection are means of persuasion just like appealing to or preying on reason. Nothing in the circumstances of this case makes these means of persuasion “corrupt”. The trial judge erred in finding otherwise. His reliance on R. v. Crazyboy, 2011 ABPC 369, was inapposite for two reasons. First, no finding of “corrupt means” was made in that case, as the wording of the charge did not require any. Second, Mr. Crazyboy attempted to manipulate the complainant and incited her to adopt an illegal behaviour by fleeing from her home so that she would not be brought before the court to give evidence. Here, the appellant merely provided information as to the process for withdrawing charges. Like Slatter J.A., I am of the view that the conviction for attempting to obstruct justice is not made out on this record, and that the conviction is unreasonable. I would therefore allow the appeal and enter a verdict of acquittal.”

Criminal Law: Sexual Offenders

R. v. Waterman, 2020 NLCA 18; 2021 SCC 5 (39214)

Moldaver J.: “The only issue on this unreasonable verdict appeal is whether the inconsistencies in the complainant’s testimony are so significant that a conviction registered on the basis of his evidence is unreasonable as a matter of law. Although some of the inconsistencies are troubling, a majority of the Court is satisfied that the jury acted reasonably in believing the complainant. The complainant accepted that his testimony was inconsistent with his prior statements. These inconsistencies were the focus of vigorous cross-examination, forceful closing submissions and a comprehensive jury charge, which the parties agree was free of errors. For his part, the complainant explained that counselling had helped improve his memory since his initial police statement. In the majority’s view, it was for the jury to decide whether this explanation neutralized any reasonable doubt caused by the inconsistencies. In these circumstances, the lens of judicial experience causes us to yield to the wisdom of the jurors who had the advantage of hearing the complainant testify. We decline to second guess this determination. With respect, the majority disagrees that the Crown had to either lead further evidence on the complainant’s counselling sessions or adduce expert evidence on the role that counselling can play in refining memory. For these reasons, the majority would allow the appeal, set aside the acquittals and restore the convictions. Justices Brown and Rowe, dissenting, would dismiss the appeal, substantially for the reasons of Justice White.”

Criminal Law: Trafficking; Video Evidence

R. v. Murtaza, 2020 ABCA 158; 2021 SCC 4 (39134)

The Chief Justice: “A majority of the Court would dismiss the appeal substantially for the reasons of Rowbotham J.A. They would simply add that when the evidence of the buy officer and the surveillance officer is considered in conjunction with the concession of defence counsel that the person arrested on July 27, 2015, was the appellant, there was sufficient admissible evidence supporting the trial judge’s conclusion that the appellant and the suspect were one and the same. Justice Brown would have allowed the appeal substantially for the reasons of Veldhuis J.A. and would have ordered a new trial.”

Family Law: Children’s Primary Residence

Barendregt v. Grebliunas, 2021 BCCA 11; 2021 CanLII 124350 (39533)

The Chief Justice:  “A majority of this Court would allow the appeal, set aside the decision of the Court of Appeal, and restore paras. 1 to 6 of Justice Saunders’ order regarding the primary residence of the children, with costs in this Court and the courts below. Reasons to follow. Justice Côté dissents.”

Family Law: Custody

Richardson v. Richardson, 2019 ONCA 983; 2021 SCC 36 (39123)

Kasirer J.: “The dispute regarding the custody of the parties’ two children involved in this appeal turns on a proper appreciation of their best interest. When leave to appeal was granted, among the matters in dispute was whether the parties’ 16-year-old daughter and their 10-year-old son should live principally with the appellant in Ottawa or with the respondent in Niagara. On October 6, 2021 — one week before this hearing —, the parties wrote a joint letter to the Registrar to advise the Court of what they described as “changes with respect to the children that affect the record in this matter”. These included a statement that the parties’ daughter has resided in Ottawa for over a year and that, given her age, the respondent does not intend to take further steps to enforce the trial judge’s order regarding that child. We note further that the parties have not filed a motion for new evidence before this Court regarding the current best interests of the children. In the unusual circumstances of this appeal, and given the state of the record which the parties acknowledge as incomplete, we are of the unanimous view that the appeal should be dismissed, without costs before this Court. The appropriate forum for identifying and resolving whatever ongoing dispute may subsist between the parties is the Superior Court where, should the legal requirements be met, a variation order relating to custody and access could be sought. Given the tenor of the parties’ joint letter and the state of the record, we are unable to provide meaningful guidance on the best interests of the children in the circumstances. In the result, the appeal is dismissed, without costs before this Court.”

Family Law: Custody

B.J.T. v. J.D., 2020 PECA 14; 2021 CanLII 124357 (39558)

The Chief Justice: “We are all of the view to allow the appeal and set aside the decision of the Prince Edward Island Court of Appeal. We would affirm the decision of Justice Key to award custody to the appellant, subject to the following: the child is to remain with the respondent until March 21, 2022, unless otherwise agreed by the parties, at which time the child is to be returned to the appellant at the expense of the Director of Child Protection for the Province of Prince Edward Island. Paragraphs 3 to 7 of the order of November 27, 2020, of the Prince Edward Island Court of Appeal will be given effect. This order is made without prejudice to any rights that either party may have to make an application to the Supreme Court of Prince Edward Island relating to custody and access. Costs throughout to the appellant. Reasons to follow.”

Family Law: Custody; Spousal Maintenance; Family Property

Kreke v. Alansari, 2020 SKCA 1222021 SCC 50 (39567)

The Chief Justice: “Even if the fresh evidence were admitted, a majority of this Court is of the view that there was no reviewable error made by the trial judge. Therefore, the appeal is allowed and the trial judge’s orders dated July 4, 2019, and July 17, 2019, are restored with costs throughout. Justice Côté, dissenting, would have dismissed the appeal on the ground that it is moot since she would have admitted the fresh evidence, and in light of this, would remand the matter to the Court of Queen’s Bench.”

Torts: Medmal

Armstrong v. Ward, 2019 ONCA 963; 2021 SCC 1 (39049)

The Chief Justice: “The appeal is allowed for the reasons of Justice van Rensburg, with costs throughout. The judgment of the Court of Appeal is set aside and the trial judgment is restored.”

Leaves to Appeal Granted

Bankruptcy & Insolvency: Disclaimer of Arbitration Agreements

Peace River Hydro Partners v. Petrowest Corporation, 2020 BCCA 339 (39547)

Petrowest Corporation and affiliated companies were in receivership. Their receiver and manager commenced an action against Peace River Hydro Partners et al., claiming amounts owed pursuant to agreements that contain arbitration clauses. Peace River Hydro Partners, et al., applied under s. 15 of the Arbitration Act to stay the action in favour of arbitrations. The motions judge dismissed the application. The B.C.C.A. dismissed an appeal.

Civil Litigation: Workplace Safety; Due Diligence Defence

Sudbury (City) v. Ontario (Labour), 2021 ONCA 252 (39754)

Following a fatal accident at a work site where a contractor was conducting road repairs for the City of Greater Sudbury, the Ministry of Labour charged the City as an employer and a constructor with violations of the Construction Projects, pursuant to the Occupational Health and Safety Act. The City was acquitted and an appeal to the Ontario Superior Court of Justice was dismissed. The Ont. C.A. allowed an appeal and remitted the matter to the Superior Court of Justice to determine an appeal from a finding the City had proven due diligence.

Civil Procedure: Advance Costs

Anderson v. Alberta (Attorney General), 2020 ABCA 238 (39323)

The Applicant Beaver Lake Cree Nation filed a claim against Alberta and Canada in 2008, seeking various declarations of rights, injunctions, and damages for the cumulative effects of resource developments allowed on their traditional lands protected by Treaty 6. The trial is currently scheduled for 2024. Thus far, Beaver Lake has spent approximately $3M in legal fees, of which approximately one half has been paid from its own funds; it presently pays $300K in legal fees per year. Beaver Lake filed an application for advance costs in the amount of $5M to allow them to proceed with their claim.  The case management judge at the Alberta Court of Queen’s Bench awarded partial advance costs to Beaver Lake, ordering Alberta and Canada to each pay $300K per year towards Beaver Lake’s legal fees, until such time as the trial is concluded or the litigation is resolved. The Alta. C.A. reversed this decision and set aside the case management judge’s order of partial advance costs as being unreasonable, finding Beaver Lake had failed to satisfy the “impecuniosity” branch of the test for advance costs, and Beaver Lake in fact had access or potential access to several million dollars in order to continue funding the litigation.

Civil Procedure: Public Interest Standing

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2020 BCCA 241 (39430)

The Council of Canadians with Disabilities commenced an action with two individual co plaintiffs. The action raised claimed mental health legislation in B.C. that alleged non-consensual psychiatric health care treatment infringed ss. 7 and 15 of the Charter and is unconstitutional. The individual co-plaintiffs discontinued their claims. The Council of Canadians with Disabilities sought to continue the litigation without the co-plaintiffs. The Attorney General of B.C. applied for summary judgment dismissing the action, arguing the test for public interest standing is not made out. Hinkson C.J. granted the motion and dismissed the action. The B.C.C.A. allowed an appeal, struck Hinkson C.J.’s order dismissing the action, and remitted the matter of public interest standing to the B.C.S.C. for reconsideration.

Copyright: “Making Available”

Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al., 2020 FCA 100 (39418)

The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed proposed tariffs for the communication to the public by telecommunication of work in its repertoire through an online music service. However, before the Board considered it, the Copyright Modernization Act amended the Copyright Act. In particular, it added three “making available” provisions to the Copyright Act in ss. 2.4(1.1), 15(1.1)(d) and 18(1.1)(a). For example, s. 2.4(1.1) provided, for the purposes of the Copyright Act, “communication of a work or other subject matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”. Then, a few days after the Copyright Modernization Act was enacted, but before it came into force, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (“ESA”), was released. It held the transmission of a musical work over the Internet that resulted in a download of that work is not a communication by telecommunication. (See also Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, at para. 2.) As a result, royalties were not available for those downloads. When the meaning of the “making available” provisions was brought before the Board in relation to SOCAN’s proposed tariffs, the Board decided the matter was legal and would be of interest more widely than just to the tariff in question. A separate proceeding was initiated, and the Board invited written submissions from anyone with an interest in the interpretation of the “making available” provisions. Having received submissions from more than 30 organizations, the Board found s. 2.4(1.1) of the Copyright Act deems the act of making a work available to the public a “communication to the public” within s. 3(1)(f) of that Act and, thus, an act that triggers a tariff entitlement. However, in the related matter, it declined to assess a tariff based on lack of evidence: 2020 FCA 101. Judicial review of the latter decision was requested and denied, and leave to appeal was not sought. The Fed. C.A. quashed the Board’s decision regarding the meaning of the “making available” provisions.

Criminal Law: Admissibility of Witness Statement

R. v. Tessier, 2020 ABCA 289 (39350)

A man’s body was found in a ditch. He had died from gunshot wounds to the head. Police investigating the murder began establishing a victimology and determining the victim’s movements before he was shot. Police ascertained Mr. Tessier was a friend and business associate of the victim. They asked Mr. Tessier for an interview. Mr. Tessier was interviewed twice by police. Police later testified Mr. Tessier was viewed and treated as a witness and not a suspect. The second interview was followed by a voluntary trip to his apartment, at Mr. Tessier’s suggestion, to show the officer where his gun was stored. The officer testified Mr. Tessier only became a suspect and was cautioned at the apartment when it was determined his gun was missing. Mr. Tessier challenged the admissibility of his statements to the police during the interviews on the basis they were obtained in breach of ss. 7, 10(a) and 10(b). They were admitted into evidence. A jury convicted Mr. Tessier of first degree murder. The Alta. C.A. allowed an appeal and ordered a new trial.

Criminal Law: Aiding & Abetting

Cowan v. R., 2020 SKCA 77 (39301)

Following a trial before a judge sitting alone, Mr. Cowan (appellant on the appeal as of right/Respondent on the leave application) was acquitted of armed robbery and of having his face masked with intent to commit robbery. The theories of the Crown (Respondent on the appeal as of right/Applicant on the leave application) at trial where Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory. A majority of the Sask. C.A. allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial on the robbery charge. Although it dismissed the Crown’s arguments under the principal theory, the majority was satisfied the trial judge made a legal error in the application of s. 21(1)(c) and s. 22(1) of the Criminal Code, by restricting himself to consideration of whether the Crown had proven Mr. Cowan abetted or counselled the principal offender(s). That error had a material bearing on Mr. Cowan’s acquittal, because it led the trial judge to overlook relevant and probative evidence which strongly supported a finding of guilt. The majority then considered remedy and held a new trial should be ordered. It said the Crown’s appeal with respect to the acquittal on the principal theory was dismissed, so the new trial should proceed only on the question of whether Mr. Cowan was guilty of robbery as a party, on the basis of abetting or counseling. Jackson J.A., dissenting, would have dismissed the Crown’s appeal in its entirety. She agreed with the majority that the Crown had not discharged the burden upon it to justify a new trial on the basis the trial judge made an error of law when he concluded Mr. Cowan had not personally committed the offence of robbery. However, she also concluded the trial judge did not err by limiting himself to considering two named individuals only as being principals only to the offence, as he was responding to the evidence and submissions. If the trial judge did commit an error of law, Jackson J.A. was of the view it was not of sufficient materiality for the court to overturn the acquittal and order a new trial.

Criminal Law: Conspiracy to Launder

R. v. Ste-Marie, et al., 2020 QCCA 1118 (39381)

The four Respondents were charged with conspiracy to launder proceeds of crime, laundering proceeds of crime, and commission of an offence for a criminal organization. In the Court of Québec, the Respondents moved for a stay of proceedings for unreasonable delay. The Court of Québec found s 11(b) of the Charter had been infringed but declined to stay the proceedings. It convicted the Respondents of the offences charged. On appeal from the guilty verdicts, the Qué. C.A. had to determine whether the Court of Québec had erred in declining to stay the proceedings after finding unreasonable delay. The C.A. allowed the Respondents’ appeals, quashed the convictions and ordered a stay of proceedings.

Criminal Law: Constitutionality of Mandatory Minimums

R. v. Sharma, 2020 ONCA 478 (39346)

In 2016, the Respondent, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). At the time of the commission of the offence, the Respondent was 20 years old and had no prior criminal record. A Gladue report was prepared, and expert evidence was tendered on sentencing to explain the link between colonialism and racism to the criminalization of Indigenous women. After initially recommending a sentence in the range of 6 years, the Crown reduced its recommendation during the sentencing hearing to 18 months imprisonment. The Respondent sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two‑year mandatory minimum sentence under s. 6(3) (a.1) of the CDSA and of ss. 742.1 (b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found the two‑year mandatory minimum sentence under s. 6(3) (a.1) of the CDSA violated s. 12 of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1 (b), and he dismissed the s. 15 challenge to s. 742.1 (c). The Respondent was sentenced to 18 months imprisonment, less one month for pre‑sentence custody and other factors. The Respondent appealed and, with the Crown’s consent, also brought a constitutional challenge to s. 742.1 (e)(ii) of the Criminal Code. A majority of the Ont. C.A. allowed the appeal. Sections 742.1 (c) and 742.1 (e)(ii) were found to infringe both ss. 7 and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment.

Criminal Law: Constitutionality Re Parole Ineligibility

R. v. Bisonette, 2020 QCCA 1585 (39544)

On the evening of January 29, 2017, the Respondent, Mr. Bissonnette, who was 27 years old at the time, left home with two firearms and ammunition and headed to the Great Mosque of Québec. On arriving there, he fired on the worshippers who were present. He pleaded guilty on 12 counts, including six of first degree murder. Before the sentencing judge, the Respondent challenged the constitutional validity of section 745.51 of the Criminal Code, a provision under which, in the event of multiple murders, a judge may, in addition to imposing a life sentence, order parole ineligibility periods, to be served consecutively, of 25 years for each murder. The sentencing judge concluded the section in question infringes sections 12 and 7 of the Charter, and 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. The Qué. C.A. reached the same conclusions as regards the constitutionality of the provision, but it was of the view the constitutional incompatibility identified by the sentencing judge goes to the very heart of the provision and reading in is therefore not appropriate. It accordingly declared section 745.51 of the Criminal Code invalid and of no force or effect. As a consequence, it ordered a total period of parole ineligibility of 25 years in this case.

Criminal Law: Drive-by Shooting

Russell, et al. v. R., 2020 BCCA 108 (39274)

The three Applicants, Ms. Dingwall, Mr. Russell, and Mr. Richet, were convicted of aggravated assault and various firearm offences in connection to a drive-by shooting occurring outside a house in Mackenzie, British Columbia. At trial, the Crown’s case was based on circumstantial evidence. The trial judge concluded Mr. Russell and Mr. Richet were guilty as principals or aiders or abettors for all charges. Ms. Dingwall was found guilty as an aider or abettor for the charges relating to the drive-by shooting and as a principal or aider or abettor for the charges related to the burning of a truck. The three Applicants appealed their respective convictions. The majority at the B.C.C.A. dismissed the appeals. First, the majority held the verdicts were not unreasonable. There was agreement with the trial judge no inference other than guilt was available given the evidence and absence of evidence, assessed logically, and in light of human experience and common sense. The majority also disagreed with the arguments that (1) there was a failure to consider each accused separately; (2) the principle in R. v. Thatcher, [1987] 1 S.C.R. 652 is inapplicable in a trial before judge alone (this principle being the law is indifferent to whether the accused personally committed the offence as a principal or aided and abetted another, so long as the court is satisfied beyond a reasonable doubt the accused did one or the other); and (3) there was a failure to provide adequate reasons. In dissent, Butler J.A. disagreed with the disposition of Ms. Dingwall’s appeal relating to the drive-by shooting charges. He would have allowed her appeal with respect to counts 3, 4 (discharging a firearm with intent to wound), count 5 (intentionally discharging a firearm while being reckless as to the life or safety of another person) and count 6 (committing aggravated assault), and directed acquittals for those offences. In his view, the trial judge erred in concluding the only rational inference to be drawn from the evidence was Ms. Dingwall aided or abetted in the offences described under those counts. To Butler J.A., the trial judge failed to properly consider the lack of any evidence about Ms. Dingwall’s activities before and during the shooting offences, and failed to consider the absence of evidence given her potential liability as a party, rather than a principal, to those offences. As Ms. Dingwall’s participation in the offences was not the only rational inference on the evidence, the Crown could not be taken to have met its burden of proof and the trial judge’s verdict was therefore unreasonable.

Criminal Law: Entrapment; Delay; Kienapple

Haniffa v. R., 2021 ONCA 326 (39803)

The Applicant, Erhard Haniffa, was arrested charged with offences under ss. 172.1(1)(a) (child luring under 18), 172.1(1)(b) (child luring under 16), and 286.1(2) (communicating to obtain sexual services from a minor) of the Criminal Code. The charges arose out of “Project Raphael”, designed by the York Regional Police — an undercover investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”. As part of the investigation, the police posted fake advertisements in the “escorts” section of an online classified advertising website. When individuals responded to the ads, an undercover officer posing as an escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction; they were arrested and charged on arrival. The trial judge found the Applicant guilty on all three counts. In a post-trial application, the trial judge stayed the conviction under s. 172.1(1)(a) (child luring under 18) pursuant to Kienapple v. The Queen. The Applicant also applied for a stay of proceedings on the basis of entrapment, and made two different applications for a stay claiming delay in violation of s. 11(b). All three applications were dismissed in separate proceedings. The Applicant’s appeals from the conviction, from the Kienapple ruling on multiple convictions, from the entrapment application, and from the s. 11(b) applications, were dismissed. His sentence appeal was allowed.

Criminal Law: “Fresh Start” Arrests

Beaver v. R., 2020 ABCA 203 (39480)

The Applicant and his co-accused were convicted of manslaughter in relation to the death of their roommate. After being initially detained by officers at the scene under a non-existent Act, they were arrested by detectives for murder two hours later at the police station. Following a lengthy interview, the co-accused confessed to their involvement in the death of the roommate; when confronted with the confession, the Applicant admitted his participation as well. At trial, the Applicant sought a stay of proceedings or, alternatively, the exclusion of all evidence which derived from alleged violations of his rights protected by ss. 7, 9, 10(a) and 10(b). The Applicant also alleged the detective who arrested him at the station did not have reasonable and probable grounds to do so. The Crown conceded the Applicant’s Charter rights had been breached when he was detained under a non-existent law, but argued the arrest at the station constituted a “fresh start” which insulated his confession from the previous breaches. The trial judge dismissed the application, finding the police had reasonable and probable grounds to arrest the Applicant for murder at the police station, and the arrest constituted a “fresh start” which cured the previous breaches. He concluded the Applicant’s subsequent confession had not been tainted by the breaches. Nevertheless, the trial judge conducted a s. 24(2) analysis as set out in R. v. Grant, 2009 SCC 32, and concluded the confession would have been admitted, in any event. The Alta. C.A. dismissed the Applicant’s appeal.

Criminal Law: “Fresh Start” Arrests

Lambert v. R., 2020 ABCA 203 (39481)

Similar summary to that immediately above.

Criminal Law: Homicide; Conspiracy

R. v. J., et al., 2021 BCCA 34 (39635)

There is a publication ban in this case, as well as a sealing order; certain information is not available to the public, in the context of first degree murder and conspiracy.

Criminal Law: Mandatory Minimums

Hills v. R., 2020 ABCA 263 (39338)

Mr. Hills pled guilty to four charges from an incident where he swung a baseball bat and fired a shot with his rifle at an occupied vehicle, smashed the window of a parked vehicle and shot a few rounds into an occupied family residence. One of the charges was the intentional discharging of a firearm into or at a place, knowing or being reckless as to whether another person is present in the place under s. 244.2(1) (a) of the Criminal Code, which carries a minimum four‑year imprisonment sentence. Mr. Hills alleged the minimum sentence under s. 244.2(3)(b) of the Criminal Code violated the constitutional right to not be subjected to any cruel and unusual treatment or punishment by virtue of s. 12. The trial judge found the mandatory minimum sentence contravened s. 12 and could not be saved by s. 1. As a result, he declared s. 244.2(3)(b) of the Criminal Code to be of no force and effect. Mr. Hills was sentenced to a term of imprisonment of three and a half years. The Alta. C.A. overturned the trial judge’s finding the provision was unconstitutional and set aside the declaration of invalidity. The appeal against the sentence for discharging a firearm was allowed and Mr. Hills’ sentence increased to four years.

Criminal Law: Mandatory Minimums

R. v. Hilbach, 2020 ABCA 332 (39438)

Both Respondents pled guilty to charges stemming from armed robberies of convenience stores. Mr. Hilbach was sentenced to imprisonment of two years less a day for robbery while using a prohibited firearm, contrary to s 344(1)(a)(i), and having in his possession a prohibited firearm while banned by reason of an order pursuant to s 109, contrary to s 117.01(1) of the Code, on each count to be served concurrently. Mr. Zwozdesky was sentenced to three years’ imprisonment for robbery with a firearm and one year imprisonment for the second robbery, to be served consecutively. Both Respondents brought a constitutional challenge to the respective mandatory minimum sentences alleging the sentences breached section 12 of the Charter. Each sentencing judge declared the relevant mandatory minimum sentence to be unconstitutional and of no force and effect pursuant to section 52 of the Constitution Act, 1982.  The majority of the Alta. C.A. upheld the lower courts’ declarations of unconstitutionality. The appeal with respect to Mr. Zwozdesky was dismissed. The appeal with respect to Mr. Hilbach was allowed in part, and a sentence of three and one-half years was substituted. Justice Wakeling dissented and would have set aside the respective declarations of unconstitutionality.

Criminal Law: Prior Sexual Activity

A.S. v. R., 2020 ONCA (39516)

There is a publication ban in this case, in the context of constitutionality re prior sexual activity.

Criminal Law: Refusal to Blow

R. v. Breault, 2021 QCCA 505 (39680)

The Respondent, Mr. Breault, refused a number of times to provide a breath sample to a peace officer who demanded he do so at a time when an approved screening device was not in the officer’s possession. The Municipal Court found Mr. Breault guilty of failing to comply with a demand made to him by a peace officer, thereby committing the offence provided for in ss. 254(5) and 255(1) of the Criminal Code. In its view, the validity of the demand did not depend on a device being at the scene at the time when the demand was made. The Qué. C.A. instead held, because of the requirement a breath sample be provided “forthwith”, a delay greater than is necessary to properly operate the device or obtain a reliable test in light of the facts noted by the police officer cannot be justified. The demand was therefore invalid, and the refusal that followed did not constitute a criminal offence.

Criminal Law: Right to Counsel

R. v. Dussault, 2020 QCCA 746 (39330)

The Respondent, Patrick Dussault, was arrested for murder and arson. Before his trial, he moved to exclude from the evidence an incriminating statement he had made to the police while being questioned; the reason he gave was the statement had been obtained as the result of a violation of his right to counsel protected by s. 10(b). A voir dire was held. The trial judge dismissed the motion and found the statement admissible in evidence. At trial, the jury found second degree murder. The Respondent appealed the verdict. He argued the trial judge had erred in dismissing the motion to exclude the incriminating statement and in finding his right to counsel under s. 10(b) had not been violated. The Respondent submitted, in his telephone conversation with his lawyer, the latter had started to advise him but had not finished doing so, and the refusal of the police to allow the Respondent to continue consultation when his lawyer arrived at the police station was a violation of the police duty to ensure the application of s. 10(b). The Qué. C.A. allowed the appeal, set aside the guilty verdict and ordered a new trial.

Criminal Law: Sexual Assault

E.N. v. R., 2020 ABCA 307 (39360)

There is a publication ban in this case, in the context of the constitutionality of ss. 490.012 and 490.013(2.1) of the Criminal Code, requiring the accused to register and report for life under the Sex Offender Information Registration Act, S.C. 2004, c. 10, as a result of his convictions for more than one designated offence.

Criminal Law: Sexual Assault

R. v. R., 2020 BCCA 136 (39287)

There is a publication ban in this case, in the context of non-consent to non-condom sex.

Criminal Law: Sexual Offences

R. v. J.D., 2020 QCCA 1108 (39370)

There is a publication ban on the party, in the context of sexual offences against minors.

Criminal Law: Sexual Offences

R. v. J.F., 2020 QCCA 666 (39267)

There is a publication ban in this case, in the context of a series of alleged sexual offences.

Criminal Law: Voyeurism

R. v. R., 2020 CACM 8 (39543)

There is a publication ban in this case, as well as a sealing order, in the context of alleged voyeurism by a military force’s member against another member.

Family Law: Child Protection; Custody

B.J.T., et al. v. J.D, 2020 PECA 14 (39558)

There is a publication ban in this case; certain information is not available to the public, in the context of a child protection matter as to custody of a child.

Family Law: Custody; Relocation; Support

Kreke v. Alansari, 2020 SKCA 122 (39567)

The parties separated after ten years of marriage. They had one child together and the Applicant had two children from a previous marriage. The Sask. C.A. overturned the trial judge’s decision that awarded joint custody of the one child, with primary care to the Applicant and allowed her to relocate within the province with that child. It also reduced the amount of spousal support awarded to her. A new trial was ordered on the issues of custody, access, primary care and relocation.

Family Law: Hague Convention

R. v. N., 2021 ONCA 688 (39875)

There is a publication ban in this case, in the context of Hague Convention issues.

Family Law: Mobility

Barendregt v. Grebliunas, 2021 BCCA 11 (39533)

The Court of Appeal overturned the trial judge’s decision to allow a mother of children to relocate with them to a distant community close to her family, the Court of Appeal allowing the admission of father’s new evidence of financial improvements occurring since the hearing of the appeal and overturning the relocation order. Whether the conditions under which new evidence may be admitted are unclear, particularly in custody disputes. How should the Palmer test to admit fresh or new evidence be applied in the “slightly relaxed” conditions of custody cases and should a different test be applied to applications involving “fresh” evidence as opposed to “new” evidence? The mother’s motion for a stay was granted Feb. 12, 2021 by Justice Karakatsanis.

Family Law: Mobility

Richardson v. Richardson, 2019 ONCA 983 (39123)

The parties were married in 2003 and divorced in 2015. They have both since remarried. Their daughter was born in 2005 and they had a son in 2011. They all resided in the Niagara region until 2017. In 2015, the parties participated in an assessment pursuant to s. 30 of the Children’s Law Reform Act. Ms. Richardson was seeking to have the children move with her to Ottawa, where she planned to relocate. The assessor recommended the children stay in the Niagara region and the parties have joint custody. The parties accepted this recommendation and settled the matter pursuant to a consent order in 2016. At the time both parties had residences in the Niagara region and Ms. Richardson was dividing her time between the Niagara region and the Ottawa area, where she had a home with her new spouse. In July 2017, Ms. Richardson sold her Niagara residence and moved to Ottawa. She brought a motion to change the consent order on the basis it would be in the children’s best interests to reside primarily with her in Ottawa. The parties could not settle the matter and it proceeded to trial. On the third day of the trial, counsel for the parties presented a proposed settlement to the trial judge that provided the children would move from their home in the Niagara region to Ottawa to live primarily with their mother. The trial judge did not accept the terms of the minutes of settlement and wanted to hear all of the evidence. The trial proceeded. The trial judge concluded the children would not relocate to Ottawa. This decision was upheld by the C.A.

Immigration and Refugees: Safe Third Country Agreement

Canadian Council for Refugees v. Canada (Minister of Citizenship and Immigration) et al., 2021 CAF 72 (39749)

Since the 2004 agreement between Canada and the United States known as the Safe Third Country Agreement, the U.S. has been designated a safe country pursuant to s. 159.3 of the Immigration and Refugee Protection Regulations. As a result, claimants arriving at a land port of entry to Canada from the U.S. are deemed to be ineligible for refugee protection in Canada pursuant to s. 101(1)(e) of the Immigration and Refugee Protection Act. The individual Applicants are among those claimants who were deemed ineligible. The Applicants ABC and her children are from El Salvador, claiming refugee status based on gang violence and gender-based persecution. The Homsi/Al Nahass Applicants are a Muslim family from Syria who left the U.S. following the issuance of the first travel ban by the U.S. government. The Applicant Ms. Mustefa is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the U.S. The Applicant organizations were granted the right to participate as public interest parties. The collective Applicants challenged the Canadian government’s failure to review the ongoing designation of the U.S. under s. 159.3 of the Regulations as rendering provision ultra vires and not in conformity with s. 101(1)(a), 102(2) ad 102(3) of the Act. They also claimed the designation and their ineligibility to claim refugee status infringed their rights guaranteed under sections 7 and 15 of the Charter and were not justified under s. 1. The Fed. Court rejected the ultra vires argument but held s. 159.3 of the Regulations and s. 101(1)(e) of the Act infringed s. 7 of the Charter and were not justified under s. 1. The court found it unnecessary to consider whether the provisions also infringed s. 15. The appellate court allowed the appeal, dismissed a cross-appeal on the ultra vires and s. 15 issues, set aside the Fed. Court decisions, and dismissed the applications for J.R.

Intellectual Property: Patents

Nova Chemicals Corporation v. Dow Chemical Company, et al., 2020 FCA 141 (39439)

There is a sealing order in this case, in the context of the juridical approach to damages and “springboard profits”.

Municipal Law: Expropriation

Annapolis Group Inc. v. Halifax Regional Municipality, 2021 NSCA 3 (39594)

Annapolis Group Inc. commenced an action against Halifax Regional Municipality. It claimed in part the municipality was obstructing its attempts to develop its land while at the same time encouraging the public to use its land as a park and this is de facto expropriation. Halifax Regional Municipality applied for summary judgment dismissing the de facto expropriation part of the claim. A motions judge denied the motion. The N.S.C.A. granted an appeal and dismissed the claim of de facto expropriation.

Professions: Discipline

Law Society of Saskatchewan v. Abrametz, 2020 SKCA 81 (39340)

This case arose from disciplinary proceedings pursued by the Applicant, the Law Society of Saskatchewan (“LSS”), against the Respondent lawyer, Peter V. Abrametz. Those proceedings, which began with an audit investigation initiated in 2012, resulted in a January 10, 2018, decision in which a Hearing Committee of the LSS found Mr. Abrametz guilty of four counts of conduct unbecoming a lawyer. The convictions were for breaches of the Law Society of Saskatchewan Rules and the version of the Code of Professional Conduct that was in effect. On January 18, 2019, the Hearing Committee ordered Mr. Abrametz disbarred, with no right to apply for readmission as a lawyer prior to January 1, 2021. In its November 8, 2018, stay decision, the Hearing Committee dismissed Mr. Abrametz’s application to stay the proceedings as a result of undue delay constituting an abuse of process. Mr. Abrametz appealed his conviction and the penalty decision to the Sask. C.A. pursuant to s. 56(1) of The Legal Profession Act. The C.A. allowed the appeal in part; it stayed the Law Society proceedings; set aside the imposed penalty and costs awards but findings of professional misconduct maintained.

Tax: Family Trusts

Canada (Attorney General) v. Collins Family Trust, 2020 BCCA 196 (39383)

Two incorporated businesses separately implemented similar plans to protect corporate assets from future creditors without incurring income tax liability. The plan took advantage of attribution rules and an inter-corporate dividend deduction in the Income Tax Act. The plan moved cash or retained earnings from the companies to family trusts without income tax being declared and paid. The effectiveness of the scheme depended on a widely accepted interpretation of s. 75(2) of the Income Tax Act. That interpretation was shared by CRA until the Tax Court of Canada held it was incorrect in Sommerer v. Canada, affirmed in 2012 FCA 207. The CRA issued notices of reassessment for each family trust’s 2008 and 2009 taxation years. The family trusts and the corporations petitioned for orders rescinding the series of transactions. The B.C.S.C. granted the petitions and rescinded the transactions. The B.C.C.A. dismissed appeals, allowing reliance on equitable rescission to avoid the unanticipated tax consequences.

Transportation Law: Disclosure re Accidents

Transportation Safety Board of Canada v. Carroll-Byrne, et al., 2021 NSCA 34 (39661)

Following the crash of an Air Canada flight from Toronto when it landed short of the runway of the Halifax International Airport during a snowstorm, some of the passengers commenced a class action asserting negligence on the part of various defendants, including Air Canada, the pilot and co‑pilot. The Applicant (Board) investigated the crash, taking into consideration the on-board cockpit voice recorder (CVR), and the Board’s report on its findings was produced to the parties. The Respondent Airbus S.A.S. moved for an Order requiring the Board to produce the audio data from the CVR and any transcripts. The plaintiffs and some other Respondents also sought production of the materials. The CVR and transcripts were in possession of the Board, who claimed a statutory privilege over the materials. It intervened to argue the court should not exercise its discretion to order production in the face of its privilege. A judge of the Supreme Court of Nova Scotia rendered an oral decision denying a motion by the Board to make further ex parte representations after his in-camera review of the CVR. He went on to order production of the CVR and transcripts, subject to restrictions. The N.S.C.A. granted leave to appeal and dismissed the appeal.