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

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest Cases

  1. R. v. Sundman is out Thursday, July 21 and will address what constitutes unlawful confinement bumping second degree to first degree murder.
  2. R. v. Lafrance is out on Friday, July 22 about s. 10(b) Charter right to counsel.
  3. Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 was released July 15. The SCC dismissed the appeal finding that the Copyright Act only requires users to pay one royalty fee to stream works online.

Head over to Fantasy Courts to lock in your predictions for this week’s decisions or read more about the cases below.

Unlawful Confinement

As of right appeal from R. v. Sundman, 2021 BCCA 53

View the SCC webcast & read the factums

What Happened?

Before trial: Five people, including the appellant Darren Sundman and the victim Jordan McLeod, were in a truck driving through Prince George, B.C. An argument broke out and Sundman started pistol-whipping McLeod. As the vehicle slowed to turn off the highway, McLeod jumped out to flee. The truck stopped and the others chased McLeod on foot. Sundman and another man shot and killed McLeod.

At trial: At trial before judge alone, the appellant was acquitted of first degree murder but convicted of second degree murder. The trial judge found that Sundman could not be convicted of first degree murder pursuant to s. 231(5)(e) of the Criminal Code because, at the time of the shooting, the victim’s confinement had come to an end.

At the Court of Appeal: Both Sundman and the Crown appealed. A unanimous Court of Appeal dismissed Sundman’s appeal but allowed the Crown’s appeal, setting aside the conviction for second degree murder and entering a verdict of guilty for first degree murder. The Court of Appeal held that the trial judge erred in law in addressing the scope of the offence of unlawful confinement. Even if the trial judge’s conclusion that the act of confinement had ended moments before the killing was not an error, the trial judge nonetheless erred in law by requiring proof that the confinement and the killing occurred simultaneously. By doing so, the trial judge committed an error of law in applying R. v. Paré, [1987] 2 S.C.R. 618. The court held that on the factual findings made by the judge, Sundman was guilty of first degree murder and the judge erred in law by failing to come to this conclusion.

What Was Argued at the SCC?

Appellant: Sundman argued that whether there is a temporal and causal connection between unlawful confinement and murder is a factual conclusion from which the Crown cannot appeal. He also argued that the Crown was improperly allowed to raise a new theory of liability on appeal with respect to whether the deceased was still unlawfully confined after he jumped out of a vehicle.

Respondent: The Crown argued that whether there is a temporal and causal connection between unlawful confinement and murder is a question of mixed fact and law. If the trial judge applies the wrong legal principle to the facts, then it gives rise to a question of law and the Crown may appeal. It further argued that it didn’t raise a new issue on appeal because the only way the trial judge could have reached his conclusion was if he mistakenly believed that unlawful confinement requires the victim to be physically restrained in an enclosed space.

What Else Should You Know?

We’ve had 23 criminal law decisions so far in 2022. Twelve of those were from the bench with the remaining 11 being reserved judgments. It was a real mixed bag in terms of appeals being allowed or dismissed. In other words, it is difficult to put much weight on the fact that it was an appeal as of right and the SCC reserved its judgment. The facts of this case are particularly unhelpful for the appellant. While I expect the SCC may clear up the law of unlawful confinement in terms of getting away from the emphasis on temporal connection and focusing more on whether it’s a single transaction, I don’t see them allowing the appeal.

Right to Counsel

As of right appeal from R. v. LaFrance, 2021 ABCA 51.

View the SCC webcast & read the factums.

What Happened?

Before trial: The victim was stabbed in the neck. Shortly after the incident, police obtained a warrant to search the home of the respondent, Nigel Lafrance. Lafrance was a 19-year-old Indigenous man. He was asked to voluntarily provide a statement to police while the search was being executed. The respondent agreed to do so and was interviewed in March 2015. He was not arrested at that time and was not provided with his Charter rights. Following the interview, the respondent gave his fingerprints and a blood sample for DNA analysis, and he turned over his cell phone and some of his clothing. The respondent was subsequently arrested for murder in April 2015. He was given his Charter rights and the opportunity to contact legal counsel. After speaking to a lawyer, the respondent was interviewed and confessed to the murder.

At trial: He brought an application seeking the exclusion of the evidence obtained as a result of the interviews, alleging his s. 10(b) Charter right had been breached on both occasions. The trial judge dismissed the application. The respondent was found guilty by a jury of second-degree murder.

At the Court of Appeal: The respondent appealed his conviction. A majority of the Court of Appeal for Alberta allowed the appeal, set aside the respondent’s conviction and ordered a new trial. It found that the respondent’s s. 10(b) rights had been breached during both interviews, and held that the evidence obtained as a result of the interviews should be excluded under s. 24(2) of the Charter. In dissent, Wakeling J.A. would have dismissed the appeal.

What Was Argued at the SCC?

Appellant: The Crown argued that the majority of the Court of Appeal disregarded the standard of review and ignored the trial judge’s findings of fact. It further argued that the trial judge had used the proper test on the issue of detention and properly found that the clear instructions given by police here to the respondent were relevant. The majority’s decision would impose too high a burden on police with respect to providing s. 10(b) rights.

Respondent: LaFrance argued that in trying to get a confession, the RCMP trampled on his rights. The right to counsel is paramount in ensuring those detained understand the hurdles facing them. While the right to obtain and instruct counsel is often limited in scope, justice and fairness require exceptions in situations where it is necessary to achieve the purpose of s.10(b). This is one such case.

What Else Should You Know?

The Court heard this appeal together with R. v. Dussault, 2022 SCC 16. Dussault was released on April 29, 2022 and a unanimous court dismissed the Crown’s appeal. Moldaver J. wrote the decision and stated that police should have given Dussault a further opportunity to speak with his lawyer before interrogating him because police caused him to doubt his lawyer. However, the Court stressed it was a unique situation and it would be rare to get such a further opportunity. In contrast, from the questioning in the LaFrance hearing, it seemed that Moldaver J. had serious concerns about the Court of Appeal’s decision. The fact however that this decision didn’t come out with Dussault makes me suspect there’s a split and part of the Court is going the other way.

On July 15, 2022, the SCC released its decision in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30.

Held: Copyright Act does not require that users pay two royalties to access works online.

Key Points:

  • The Court explained copyright as follows: (1) If a work is streamed or made available for on˗demand streaming, the author’s performance right is engaged; (2) If a work is downloaded, the author’s reproduction right is engaged: (3) If a work is made available for downloading, the author’s right to authorize reproductions is engaged.
  • But importantly, if a work is made available for streaming and later streamed, the right is only engaged once. Merely making it available is not a separately protected and compensable activity.
  • Only 37% correctly predicted that the appeal would be dismissed.

-Tom Slade

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