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 6 minutes.

  1. On Friday, December 9, 2022, the SCC is releasing its decisions in R. v. Beaver and R. v. Lambert. At issue is whether police can cure an earlier Charter breach so that any subsequently obtained evidence would not offend s.24(2) of the Charter.
  2. On December 2, 2022, the SCC released its decision in F. v. N., 2022 SCC 51. In a 5:4 split, the Court ordered the return of children to UAE for a court there to decide custody issues.

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

Police Curing Charter Breaches

Appeal by leave from R v Beaver, 2020 ABCA 203

View the SCC webcast & read the factums (and here)

What Happened?

Before trial: The appellant 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 appellant admitted his participation as well.

At trial: At trial, the appellant sought a stay of proceedings or, alternatively, the exclusion of all evidence which derived from alleged violations of his rights protected by ss. 7, 9, 10(a) and 10(b) of the Charter. The appellant also alleged that the detective who arrested him at the station did not have reasonable and probable grounds to do so. The Crown conceded that the appellant’s Charter rights had been breached when he was detained under a non-existent law, but argued that the arrest at the station constituted a “fresh start” which insulated his confession from the previous breaches. The trial judge dismissed the application, finding that the police had reasonable and probable grounds to arrest the appellant for murder at the police station, and that the arrest constituted a “fresh start” which cured the previous breaches. He concluded that the appellant’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 that the confession would have been admitted, in any event.

At the Court of Appeal: The Court of Appeal unanimously dismissed the appellant’s appeal. A “fresh start” is a way to conceptualize an attempt by police to rectify or “cure” an earlier Charter breach so that any subsequently obtained evidence would not be “obtained in a manner” that infringed the rights of an accused under s.24(2) of the Charter. A “fresh start” is often, but need not be, considered in circumstances where some tainted evidence is initially gathered as a result of a Charter breach, after which investigators attempt to sever the link between the original breach and any subsequent evidence. The Court concluded, “In this case, there was little evidence of any significance gathered by the police officers at the time they improperly detained the appellants at the townhouse, but we nonetheless see no reason why the concept of a fresh start should not apply here. The important point is that the police attempted a ‘fresh start’ by trying to correct their earlier mistakes so as to insulate any subsequent evidence they might gather.”

What Was Argued at the SCC?

Appellant: The approach of the courts below is “more concerned with safeguarding police investigative powers than individual fundamental rights and freedoms. The Charter is entrusted to the courts to protect individuals from unjustified police intrusion. The lower courts’ approach cedes this role to the police and fails to achieve this purpose.”

Respondent: The courts below applied the correct tests and the Court of Appeal appropriately deferred to the trial judge’s findings of fact.

What Else Should You Know Before Making a Prediction?

Counsel had quite an active bench with many of the judges jumping in with questions. The fact these were both appeals by leave and the Court didn’t make an order from the bench at least suggests the answer is not particularly straightforward. It’s been a tough year at the SCC for defence counsel, but I’m expecting a close split.

Last SCC Decisions

On December 2, 2022, the SCC released its decision in F. v. N., 2022 SCC 51. The Court in a 5:4 split dismissed the appeal.

Held: The custody dispute should be resolved by the courts in the UAE where the children have their closest connection. The trial judge’s decision that the serious harm threshold was not met is entitled to deference.

Key Points:

  • The CLRA seeks to discourage child abductions and the wrongful removal and retention of children to Ontario. The statute is based on the premise that, following an abduction, the child’s best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence.
  • The onus to prove that the child would suffer serious harm upon return rests on the abducting parent. The burden is demanding and it is not enough to conclude that the return would have a negative impact on the child. It is also not enough to identify a serious risk of harm: the court must be satisfied, on a balance of probabilities, that the harm itself would be serious in nature.
  • When considering risks of harm flowing from separation, courts should recognize that if a child is separated from their primary caregiver, but is nevertheless returned to their capable left‑behind parent and other known caregivers, in a safe and familiar environment, the high threshold of harm may not be met.
  • There may be instances where foreign laws are so profoundly irreconcilable with Ontario law that remitting the matter to the foreign courts would constitute serious harm within the meaning of the CLRA.

-Tom Slade

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