This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2022, 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.

Appeals

Administrative Law: Delay; Standard of Review

Law Society of Saskatchewan v. Abrametz, 2020 SKCA 81; 2022 SCC 29 (39340)

Inordinate delay in administrative proceedings, as in other legal proceedings, is contrary to the interests of society. Decisions by administrative decision makers need to be rendered promptly and efficiently. Administrative delay undermines a key purpose for which such decision-making authority was delegated — expeditious and efficient decision-making. However, there are important reasons why Jordan does not apply to administrative proceedings. Jordan deals with the right to be tried within a reasonable time under s. 11(b). No such Charter right applies to administrative proceedings. As such, there is no constitutional right outside the criminal context to be “tried” within a reasonable time. Where delay has not affected the fairness of a hearing, the test to determine if the delay amounts to an abuse of process has three steps:

  1. First, the delay must be inordinate; this is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and
  2. Second, the delay itself must have caused significant prejudice;
  3. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established; this will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.

When an abuse of process is found, various remedies are available. In rare cases, where going ahead with the proceeding results in more harm to the public interest than if the proceedings were halted, a permanent stay of proceedings will be justified. When this threshold is not met, other remedies exist, including reduction of sanction and a variation in any award of costs.

Bankruptcy and Insolvency: Arbitration Agreements

Peace River Hydro Partners v. Petrowest Corp., 2020 BCCA 339; 2022 SCC 41 (39547)

The civil claim brought by the Receiver on behalf of Petrowest and the Petrowest Affiliates may proceed. Permitting a court‑appointed receiver to avoid arbitration on the basis that it is not a party to the debtor’s pre‑existing agreement to arbitrate is inconsistent with a proper reading of s. 15 (B.C. Arbitration Act), ordinary principles of contract law, party autonomy, and the S.C.C.’s longstanding jurisprudence with respect to arbitration. Nor can disclaimer or the doctrine of separability permit receivers to unilaterally render otherwise valid arbitration agreements “inoperative” or “incapable of being performed” within the meaning of s. 15. Only a court can make a finding that an arbitration agreement is inoperative or incapable of being performed. Although s. 15 is engaged, the chambers judge was entitled to refuse to grant a stay under s. 15(2). An otherwise valid arbitration agreement may, in some circumstances, be inoperative or incapable of being performed. The fact that a party has entered receivership or insolvency proceedings or is financially impecunious is not, on its own, a sufficient basis for a court to find an arbitration agreement inoperative. The party seeking to avoid arbitration must establish, on a balance of probabilities, that a stay in favour of arbitration would compromise the integrity of the parallel insolvency proceedings. The following non‑exhaustive list of factors may assist in the court’s analysis: (a) the effect of arbitration on the integrity of the insolvency proceedings, which are intended to minimize economic prejudice to creditors; (b) the relative prejudice to the parties to the arbitration agreement and the debtor’s stakeholders; (c) the urgency of resolving the dispute; (d) the effect of a stay of proceedings arising from the bankruptcy or insolvency proceedings, if applicable; and (e) any other factors the court considers material in the circumstances. A court may find an arbitration agreement inoperative where arbitration would compromise the orderly and efficient resolution of a receivership. Accordingly, there is no conflict between the provincial Arbitration Act and the federal BIA giving rise to paramountcy concerns. The S.C.C. interpretation of s. 15(2) of the Arbitration Act recognizes that the legislative and judicial preference for the enforcement of arbitration agreements is not set in stone. Rather, in limited circumstances, the BIA provides courts with jurisdiction to find an arbitration agreement inoperative in the face of parallel insolvency proceedings. A court may find an arbitration agreement “inoperative” within the meaning of s. 15(2) of the Arbitration Act where enforcing it would compromise the orderly and efficient resolution of insolvency proceedings, including a court‑ordered receivership under s. 243 of the BIA.

Civil Litigation/Aboriginal Law: Advance Costs

Anderson v. Alberta, 2020 ABCA 238; 2022 SCC 6 (39323)

For advance costs, a First Nation government that has access to resources may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. While the impecuniosity requirement is guided by the condition of necessity, pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of that First Nation government. A court may therefore consider the broader context in which a First Nation government sets priorities and makes financial decisions, accounting for competing spending commitments, restrictions on the uses of its resources, and fiduciary and good governance obligations. In appropriate cases, a First Nation government may succeed in demonstrating impecuniosity despite having access to resources whose value equals or exceeds its litigation costs. However, the threshold of impecuniosity remains high and is not easily met. Bearing in mind the constraints on the judicial role imposed by the separation of powers, the extraordinary nature of the remedy and the importance of accountability for the expenditure of public funds it entails, the court’s analysis must be firmly grounded in the evidence. The court must be able to (1) identify the applicant’s pressing needs; (2) determine what resources are required to meet those needs; (3) assess the applicant’s financial resources; and (4) identify the estimated costs of funding the litigation.

Civil Litigation: Public Interest Standing

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2020 BCCA 241; 2022 SCC 27 (39430)

The Court of Appeal below was wrong to conclude that the principles of legality and access to justice merit “particular weight” in the Downtown Eastside analysis. This Court’s case law, and in particular the existing Downtown Eastside framework, already addresses these factors in both implicit and explicit fashion. When standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence. That would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. Generally, however, a mere undertaking or intention to adduce evidence will not be enough to persuade a court that an evidentiary basis will be forthcoming. Some examples of considerations a court may find relevant when assessing whether a sufficiently concrete and well-developed factual setting will be produced for trial: Stage of the proceedings: the court should take account of the stage of the proceedings at which standing is challenged; Pleadings: the court should consider the nature of the pleadings and what material facts are pled; Nature of the public interest litigant: the court may also consider whether the litigant — if it is an organization — is composed of or works directly with individuals who are affected by the impugned legislation; Undertakings: Courts rigorously enforce undertakings, which must be “strictly and scrupulously carried out”; Actual evidence: though a party is not required to do so, providing actual evidence — or a list of potential witnesses and the evidence they will provide — is a clear and compelling way to respond to a challenge to standing at a preliminary stage. Standing is fact- and context-specific. Rather than using the “blunt instrument” of denying standing, it is appropriate to use various litigation management tools — like the possibility of revisiting standing — to ensure that the evidence in question is in fact tendered promptly.

Civil Litigation/Transportation Law: Disclosure

Canada (Transportation Safety Board) v. Carroll-Byrne, 2021 NSCA 34; 2022 SCC 48 (39661)

One of the defendants in the class action, Airbus S.A.S., brought an interlocutory motion before the Supreme Court of Nova Scotia seeking an order that the Transportation Safety Board release the cockpit voice recorder (“CVR”) containing the flight crew’s communications — part of the so called “black box” from the aircraft — as well as the transcripts made of the recorded data. The Board, a stranger to the litigation, had the only copy of the CVR and used it in the preparation of its report. The defendant Airbus, the aircraft manufacturer, said the release of the device was necessary for a fair trial, in particular to resolve the causation issue that would be central to the civil action. The Board opposed the motion for disclosure. It was joined by the defendant airline, Air Canada, and its pilots, who are alleged to have acted negligently. For the Board, the CVR was subject to a statutory privilege and consequently could not be produced in evidence in the civil action. The S.C.C. upheld the chambers judge’s discretionary decision to permit production and discovery of the CVR at trial and dismiss the appeal. First, the chambers judge correctly identified, as a matter of law, the underlying purposes of pilot privacy and public safety in air transportation relevant to weighing the “importance of the privilege” as recognized by Parliament. Second, he did not adopt an interpretation of the counterweighted “public interest in the proper administration of justice” that undermined the statutory privilege bearing on the CVR. He did not, for example, suggest that the importance of the privilege could be outweighed merely because the CVR was relevant and trustworthy. The judge was satisfied that the information in the privileged onboard recording could not be produced in evidence by any other reasonable means. He thus ordered disclosure of the CVR not just because it was highly probative but, first and foremost, because it was necessary to resolve the civil action. To exclude it could have precluded a fair trial on a matter central to the dispute.

Copyright: Royalties

Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2020 FCA 100; 2022 SCC 30 (39418)

The S.C.C. disagrees with the Board’s interpretation of s. 2.4(1.1). The reading most consistent with the text, structure, purpose and context of s. 2.4(1.1) is s. 2.4(1.1) clarifies that: s. 3(1)(f) applies to on-demand streams; a work is performed as soon as it is made available for on-demand streaming. This interpretation of s. 2.4(1.1) gives effect to Canada’s obligations under art. 8. There is no way to download a work, stream a work, or make a work available for on-demand streaming or downloading that does not engage one of the author’s exclusive rights in s. 3(1). This interpretation is also technologically neutral. Similar to offline distributions, downloading or streaming works will continue to engage only one copyright interest and require paying one royalty — a reproduction royalty for downloads or a performance royalty for streams. If a work is downloaded or made available for downloading, s. 3(1)(f) is not engaged. A work made available for streaming and later streamed, s. 3(1)(f) is only engaged once. The value of these rights is not in issue herein. Setting the appropriate royalties to compensate authors when these rights are engaged is a matter for the Board to decide. Similarly, the considerations that a court might have regard to in assessing monetary remedies for infringement is a matter to be decided if and when such a case arises.

Criminal Law: Conditional Sentencing

R. v. Sharma, 2020 ONCA 478; 2022 SCC 39 (39346)

It is undisputed that a sentencing judge must take account of the particular circumstances of Indigenous offenders, as that is what Parliament has directed in s. 718.2(e). How this is to be done may take various forms and the Criminal Code provides judges broad discretion to craft a proportionate sentence, given the offender’s degree of responsibility, the gravity of the offence and the specific circumstance of each case (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58). For instance, sentencing judges may consider other non-carceral options such as suspended sentences and probation. They may also reduce sentences below the typical range. It is true that suspended sentences are “primarily a rehabilitative sentencing tool”, whereas conditional sentences “address both punitive and rehabilitative objectives” (Proulx, at para. 23). Suspended sentences are not irrelevant to applying s. 718.2(e). Proulx does not prohibit judges from using suspended sentences “to endeavour to achieve a truly fit and proper sentence in the particular case” (Gladue, at para. 33). Where conditional sentences are unavailable, judges may give effect to s. 718.2(e) by considering suspended sentences with openness and flexibility. s. 718.2(e) does not guarantee that Indigenous offenders will not receive carceral sentences. To the extent the Court of Appeal pointed to Ms. Sharma’s circumstances as demonstrative of Parliament’s overreach, it collapsed the concept of seriousness of the offence into the concepts of circumstances of the offender and particulars of the crime. The S.C.C. accepts entirely that the circumstances which led Ms. Sharma to import drugs are tragic and that her moral culpability was thereby attenuated (which was reflected in a sentence of 18 months rather than the six years initially proposed by the Crown). But those facts do not make importation of a Sch. I substance, particularly in the quantity she carried (1.97 kilos), any less serious.

Criminal Law: Confessions

R. v. Beaver, 2020 ABCA 203; 2022 SCC 54 (39480)(39481)

The S.C.C. agreed with the lower courts that Beaver’s confession was voluntary and thus admissible under the common law confessions rule, and that the police had reasonable and probable grounds to arrest the appellants for murder. However, the homicide detectives made a “fresh start” from the Charter breaches arising from the appellants’ unlawful detention for Lambert but not for Beaver. Thus, only Beaver’s confession was obtained in a manner that breached the Charter. Balancing the lines of inquiry under s. 24(2) of the Charter, admitting Beaver’s confession into evidence would not bring the administration of justice into disrepute. The appellants’ convictions for manslaughter are confirmed.

Criminal Law: Confessions

R. v. Tessier, 2020 ABCA 289; 2022 SCC 35 (39350)

Insisting on a caution in all circumstances where a suspect is questioned by police, or requiring that the Crown prove what amounts to a waiver of that caution, are not conditions of voluntariness. Where knowledge can be shown, courts have forgiven the lack of caution, but just as the caution is not obligatory, proof of actual knowledge of the right to silence or the consequences of speaking to prove voluntariness is not either. That high standard applied in all cases in the pre detention phase of an investigation could upset the balance of individual and social interests upon which the confessions rule rests. In summary, the confessions rule always places the ultimate burden on the Crown to prove beyond a reasonable doubt that a statement made by an accused to a person in authority was made voluntarily. When an accused brings a voluntariness claim with respect to police questioning that did not include a caution, the first step is to determine whether or not the accused was a suspect. If the accused was a suspect, the absence of a caution is prima facie evidence of an unfair denial of choice but not dispositive of the matter. It is credible evidence of a lack of voluntariness that must be addressed by the court directly. Depending on the circumstances, it is potentially relevant to different Oickle factors as well as any other considerations pertinent to voluntariness. However, the absence of a caution is not conclusive and the Crown may still discharge its burden, if the totality of the circumstances allow. The Crown need not prove that the accused subjectively understood the right to silence and the consequences of speaking, but, where it can, this will generally prove to be persuasive evidence of voluntariness. If the circumstances indicate that there was an informational deficit exploited by police, this will weigh heavily towards a finding of involuntariness. But if the Crown can prove that the suspect maintained their ability to exercise a free choice because there were no signs of threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to discharge the Crown’s burden that the statement was voluntary and remove the stain brought by the failure to give a caution.

Criminal Law: Entrapment

R. v. Ramelson, 2021 ONCA 328; 2022 SCC 44 (39664)

In assessing whether an online space is sufficiently precise to ground the police’s reasonable suspicion, then, the Internet’s unique features must be considered. The space must be viewed with particular attention to its functions and interactivity to ensure that the space has been “carefully delineate[d] and tightly circumscribe[d]” (Ahmad, at para. 39). The factors discussed by this Court in Ahmad — in particular, the number of activities and people affected, the interests of privacy and free expression, and the availability of less intrusive investigative techniques — may assist in that assessment. They may be key to ensuring that the purview of an online police investigation was no “broader than the evidence allow[ed]” (para. 41). On the correct analysis, the police here had reasonable suspicion over a sufficiently precise space and the offences the police offered were rationally connected and proportionate to the offence they reasonably suspected was occurring. Mr. Ramelson was therefore not entrapped. Courts assessing whether an online police investigation was bona fide must pay close attention to the space’s functions and interactivity — that is, to the permeability, interconnectedness, dynamism and other features that make the Internet a distinctive milieu for law enforcement. Even tailored online investigations may represent a broad and profound invasion into peoples’ lives. Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny. How the police act on the Internet may matter as much or more as where they act. Bona fide inquiries must satisfy two criteria before the police may offer an opportunity to commit an offence: the police must have (1) a reasonable suspicion over a sufficiently precise space; and (2) a genuine purpose of investigating and repressing crime (Ahmad, at para. 20).

Criminal Law: Entrapment

R. v. Dare, 2021 ONCA 327; 2022 SCC 47 (39871)

Mr. Dare adopts the appellant submissions made in Ramelson and Haniffa, stating that “the facts in the present case are sufficiently similar, so that the same conclusions ought to follow”. For the reasons given in Ramelson, Project Raphael was a bona fide inquiry, the appeal is dismissed.

Criminal Law: Entrapment

R. v. Haniffa, 2021 ONCA 326; 2022 SCC 46 (39803)

In this appeal, Mr. Haniffa adopts the questions in issue as set out in the appellant’s factum in Ramelson. Many of his arguments mirror those raised in Ramelson, but he raises some additional points. Inspector Truong’s evidence, he says, was insufficient to ground reasonable suspicion: it was based too heavily on his personal experiences, failed to show the targeted offences were prevalent, and failed to explain how a user would actually locate a juvenile sex worker through the website, given its parameters. And given the potential breadth of investigations into spaces, the police should be limited, in the context of bona fide inquiries, to offering the same offences they suspect are occurring; they should not be entitled to offer those that are only rationally connected and proportionate (see R. v. Mack, [1988] 2 S.C.R. 903, at p. 958). For the reasons given in Ramelson, the S.C.C. did not accede to these arguments. As explained there, the police had reasonable suspicion over a sufficiently precise space and the Mack standard of “rationally connected and proportionate” applies and was satisfied. Project Raphael was thus a bona fide inquiry. Mr. Haniffa was not entrapped.

Criminal Law: Entrapment

R. v. Jaffer, 2021 ONCA 325; 2022 SCC 45 (39676)

In this appeal, Mr. Haniffa adopts the questions in issue as set out in the appellant’s factum in Ramelson. Many of his arguments mirror those raised in Ramelson, but he raises some additional points. Inspector Truong’s evidence, he says, was insufficient to ground reasonable suspicion: it was based too heavily on his personal experiences, failed to show the targeted offences were prevalent, and failed to explain how a user would actually locate a juvenile sex worker through the website, given its parameters. And given the potential breadth of investigations into spaces, the police should be limited, in the context of bona fide inquiries, to offering the same offences they suspect are occurring; they should not be entitled to offer those that are only rationally connected and proportionate (see R. v. Mack, [1988] 2 S.C.R. 903, at p. 958). For the reasons given in Ramelson, the S.C.C. did not accede to these arguments. As explained there, the police had reasonable suspicion over a sufficiently precise space and the Mack standard of “rationally connected and proportionate” applies and was satisfied. Project Raphael was thus a bona fide inquiry. Mr. Haniffa was not entrapped.

Criminal Law: Extreme Intoxication/Automatism

R. v. Brown, 2021 ABCA 273; 2022 SCC 18 (39781)

The law in Canada is that intoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent. In sum, the effect of s. 33.1 is to invite conviction even where a reasonable doubt remains about the voluntariness or the fault required to prove the violent offence, contrary to the presumption of innocence under s. 11(d). At the end of the day, Parliament’s own accountability objective was undone by the very means it chose to pursue it. In holding the extreme self intoxicated offender to account, s. 33.1 does not require objective foreseeability of the risk of falling into a state of automatism, much less the risk of consequential harm. Parliament’s goal may have been to impose personal responsibility for the creation of the risk of harm, but in the absence of a requirement of reasonable foreseeability, that goal is frustrated. The fundamental flaw of s. 33.1 is the risk of wrongful convictions it presents. By denying even a small fraction of accused persons the ability to raise a reasonable doubt as to the voluntariness or mens rea elements of the offence charged, s. 33.1 permits an individual to be convicted, and subject to the stigma, liberty restrictions and other consequences of a criminal conviction, for involuntary conduct.

Criminal Law: Extreme Intoxication/Automatism; “Horizontal” Stare Decisis

R. v. Sullivan, 2020 ONCA 333; 2022 SCC 19 (39270)

R. v. Brown, 2022 SCC 18, released concurrently, concludes that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1). That conclusion is equally applicable to the Crown’s appeals in the cases at bar. A trial judge is not strictly bound by the prior declaration by a court of coordinate jurisdiction by virtue of s. 52(1). A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining a question of law, in this case with respect to the consistency of a law with the requirements of the Charter. Questions of law are governed by the normal rules and conventions that constrain courts in the performance of their judicial tasks. The ordinary principles of stare decisis govern the manner in which a declaration issued by a court under s. 52(1) affects how courts of coordinate jurisdiction in the province should decide future cases raising the same issue. But important to clarify the situations when a superior court may depart from a prior judgment of a court of coordinate jurisdiction; the standard is not that the prior decision was “plainly wrong”; a superior court judge in first instance should follow prior decisions made by their own court on all questions of law, including questions of constitutional law, unless one or more of the exceptions in Spruce Mills are met.

Criminal Law: Hearsay

R. v. Schneider, 2021 BCCA 41; 2022 SCC 34 (39559)

Three questions. First, whether what the witness overheard had meaning, such that it was relevant to an issue at trial. Second, whether what the witness overheard was admissible under an exception to the general exclusionary rule against hearsay. Third, whether the trial judge appropriately refused to exclude the evidence on the basis that the probative value outweighed the prejudicial effect. Each question is answered in the affirmative. What the witness overheard the accused say on the phone was capable of non-speculative meaning such that it was relevant; it was admissible under the “party admission” exception to hearsay; and there is no basis to disturb the trial judge’s decision to admit the evidence. Party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. Witnesses often have imperfect recollection and express uncertainty in their testimony. To the extent that these are matters related to admissibility (rather than the weight that the trier of fact gives to the evidence), they are properly to be considered by the trial judge when balancing probative value against prejudicial effect. Thus, the fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance. Of course, parties are not permitted to “bootstrap” their argument on the admissibility of a party admission to any and all evidence. The party seeking to admit the proposed evidence should limit their submissions to the evidentiary context that is relevant to determining the meaning of the statement at issue. In a criminal case, the Crown may not argue that any evidence pointing towards the accused’s guilt provides relevant context. The focus should remain on whether the jury can give meaning to the witness’s testimony in a manner that is non-speculative, not the overall strength of the Crown’s case. In summary, judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. A trial judge’s determination that evidence is hearsay but falls within an exception from the general exclusionary rule is a question of law, reviewable on a standard of correctness. Finally, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect. Judges sitting with juries should consider the extent to which any prejudicial effect can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. In addition, evidence can be excluded where there was a significant unfairness associated with obtaining it, such that it would render the accused’s trial unfair.  No such consideration arises in the circumstances of this case. The trial judge provided the jury with clear and effective instructions on proper use of the brother’s testimony. The instructions gave the jury the guidance needed to weigh the evidence in accordance with legal principles. As such, the instructions effectively and adequately limited the possibility of prejudicial use.

Criminal Law: Homicide; Bodily Harm; Jury Charges

R. v. Goforth, 2021 SKCA 20; 2022 SCC 25 (39568)

The majority of the Court of Appeal below erred by failing to take a functional approach in its assessment of the jury charge. The S.C.C. has long held that an accused is entitled to a jury that is properly — and not necessarily perfectly — instructed. While the charge was not perfect, the jury was nonetheless properly instructed. Ultimately, when read as a whole, the trial judge’s instructions functionally conveyed the necessary legal principles. The trial judge did not make a clear distinction between the required foreseeability standard for s. 215 and the required foreseeability standard for manslaughter or unlawfully causing bodily harm. She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences. The imprecise juxtaposition of different mens rea requirements should be avoided. It could potentially confuse the jury and could potentially necessitate a new trial in a different set of circumstances. However, in the circumstances of this case, there is no reasonable possibility that the jury was confused about the required mens rea for s. 215 or misled about what the Crown had to prove in order for the jury to find either manslaughter or unlawfully causing bodily harm.

Criminal Law: Homicide

Sundman v. R., 2021 BCCA 53; 2022 SCC 31 (39569)

Section 231(5) requires: (1) an underlying crime of domination; (2) murder; (3) substantial cause; (4) no intervening act; and (5) the same transaction (Parris, at para. 45; McGregor, at para. 61). In some cases, the S.C.C. applied the “single transaction” test under s. 231(5) by asking whether the underlying offence of domination and the murder have a close “temporal and causal” connection (see Paré, at pp. 629 and 634; Pritchard, at paras. 19, 25, 33-35 and 38; Russell, at paras. 43 and 46-47). The S.C.C.’s decisions do not suggest the “single transaction” test articulated in Stevens and the temporal-causal connection approach involve different inquiries. They are simply different ways of addressing the “same transaction” element. These two approaches have been used interchangeably in the jurisprudence. Accordingly, properly applied, the single transaction test and temporal causal connection approach involve the same inquiry and will result in the same conclusion. When a single transaction is found, there will necessarily be a temporal causal connection. Likewise, when a temporal-causal connection is found, there will necessarily be a single transaction. Finally, the S.C.C. has previously ruled that the underlying offence of domination and the killing must involve two distinct criminal acts.

Criminal Law: Parole Ineligibility

R. v. Bissonnette, 2020 QCCA 1585; 2022 SCC 23 (39544)

Consecutive parole ineligibility is contrary to s. 12 of the Charter and is not saved under s. 1. It is therefore not necessary to consider the alleged infringement of s. 7. Section 12 prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.

Criminal Law: Right to Counsel

R. v. Dussault, 2020 QCCA 746; 2022 SCC 16 (39330)

In the unique circumstances of this case, the police were required to provide the accused with a further opportunity to consult counsel before questioning him. There were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided during the telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide a second opportunity to consult counsel. They failed to do so and thereby breached s. 10(b) rights.

Criminal Law: Right to Counsel

R. v. Lafrance, 2021 ABCA 51; 2022 SCC 32 (39570)

All three Grant factors — the circumstances giving rise to the encounter, the nature of the police conduct, and the particular characteristics or circumstances of the individual — weigh decisively here, on the facts of this case, in favour of finding that Mr. Lafrance was first detained when he, a young Indigenous man with minimal police exposure, was awoken in the early morning by the police inside his home, and commanded to get dressed and leave. He continued to be detained throughout the encounter, including outside the home, in the police van and in the interview room of the police station, all of which involved the near-continuous supervision and presence of the police, until the conclusion of his interview. It follows that police were required to inform Mr. Lafrance of his s. 10(b) right to counsel and to afford him the opportunity of exercising it, and breached that right by failing to do so. The police breached by refusing to provide another opportunity to consult with a lawyer despite there being reason to conclude that he had not understood his s. 10(b) advice, even after having spoken with Legal Aid. The evidence obtained as a result of the breaches of Charter rights must be excluded.

Criminal Law: Search & Seizure; Mistake of Law

R. v. Tim, 2020 ABCA 184; 2022 SCC 12 (39525)

The police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of the medication gabapentin. They then breached s. 8 by searching his person and car incident to the unlawful arrest. However, the subsequent pat-down search of the appellant was a lawful search incident to a parallel investigative detention for the traffic collision investigation. In addition, the strip search at the police station was a lawful search incident to arrest for possession of a prohibited firearm. Although all the impugned evidence was “obtained in a manner” that breached the Charter, it is not excluded it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. Weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute.

Criminal Law: Search Incident to Arrest

R. v. Stairs, 2020 ONCA 678; 2022 SCC 11 (39416)

Balancing the demands of effective law enforcement and a person’s right to privacy in their home, the common law standard for a search of a home incident to arrest must be modified, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply. However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:

  • the police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search; and
  • the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home.

Given the factual matrix herein, it is not necessary to decide whether reasonable suspicion also applies to investigation-related purposes, such as evidence preservation and evidence discovery. This issue is left for another day. The common law standard permits a search of the person arrested and the surrounding area of the arrest when (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation, or evidence discovery; and (3) the nature and extent of the search are reasonable. A search incident to arrest extends to the surrounding area of an arrest. However, this concept must be further calibrated to account for the unique considerations entailed by a search of a home. One must therefore distinguish between two subcategories within the surrounding area of an arrest:

  • the area within the physical control of the person arrested at the time of arrest; and
  • areas outside the physical control of that person, but which are part of the surrounding area because they are sufficiently proximate to the arrest.

The purpose of this distinction is to recognize that the more extensive the warrantless search, the greater the potential for violating privacy. The task of determining whether a particular area is part of the surrounding area of the arrest and which subcategory it falls under lies with the trial judge. Whether an area is sufficiently proximate to the arrest is a contextual and case specific inquiry.

Criminal Law: Sentencing; Fine in Lieu of Forfeiture

R. v. Vallières, 2020 QCCA 372; 2022 SCC 10 (39162)

The discretion conferred on courts by s. 462.37(3) of the Criminal Code does not allow them to limit the amount of a fine in lieu to the profit made from criminal activity. In accordance with the principles set out in Lavigne, judicial discretion applies first to the decision whether or not to impose a fine, and second to the determination of the value of the property (para. 35). Courts may divide the value of property among several co-accused in order to avoid a risk of double recovery. This risk arises where the Crown seeks to have a fine in lieu imposed on more than one offender in relation to the same proceeds of crime. At the stage of imposing a fine in lieu, one can speak only of a “risk” of double recovery, for it may well be that this scenario will never materialize given the fact that some co-accused might be unable to pay their fine within the time allotted. However, this possibility does not prevent a court from apportioning the fine between co-accused if there is a risk of double recovery, if apportionment is requested by the offender and if the evidence allows this determination to be made. A fine in lieu must, in principle, be equal to the value of the property of which an offender had possession or control at some point in time. The exception to this principle, whereby an offender may be ordered to pay less than the total value of the property that was in their possession or under their control, is justified by a concern for avoiding double recovery of the value of the same property from a number of co-accused.

Criminal Law: Sentencing; Higher than Crown Recommendation

R. v. Nahanee2021 BCCA 13;2022 SCC 37 (39599)

The public interest test adopted by the S.C.C. in Anthony-Cook does not, and should not, apply to contested sentencing hearings following a guilty plea, regardless of the amount of prior negotiation between the parties culminating in the plea. In such cases, however, if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions — failing which, they run the risk of having the harsher sentence overturned on appeal for any one of the following three errors in principle:

  • the appellant establishes there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence;
  • the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or
  • the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence.

Criminal Law: Sexual Assault; Consent

R. v. Kirkpatrick, 2020 BCCA 13; 2022 SCC 33 (39287)

The legal question here is: should condom use form part of the “sexual activity in question” to which a person may provide voluntary agreement under s. 273.1(1) of the Criminal Code. Or alternatively, is condom use always irrelevant to the presence or absence of consent under s. 273.1(1), meaning that there is consent but it may be vitiated if it rises to the level of fraud under s. 265(3)(c)? When consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.

Criminal Law: Sexual Offences; Complainants’ Records

R. v. J.J., 2020 BCSC 349; 2022 SCC 28 (39133)(39516)

Section 278.92(2)(b) establishes that private records are only admissible if “the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.” Similarly, this admissibility threshold is one of the conditions for s. 276 evidence, codified in s. 276(2)(d) (as directed now by s. 278.92(2)(a)) and constitutionally upheld in Darrach. The right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. Section 278.92 does no such thing. With respect to private record applications, the admissibility threshold in s. 278.92(2)(b) and the factors in s. 278.92(3) require the judge to weigh the potential prejudice arising from the proposed evidence, including whether it is myth-based or unjustifiably intrusive on a complainant’s privacy, against the extent of its probative value. It follows that the admissibility threshold in s. 278.92(2) does not breach ss. 7 or 11(d) of the Charter. To encourage the reporting of sexual offences and promote the truth-seeking function of a trial, the record screening regime is designed to catch records which both implicate complainants’ privacy and dignity in sexual offence cases and which have the potential to engage truth-distorting myths. Interpreted properly, the class of records subject to screening is tailored to Parliament’s objective, and the logic underlying the record screening regime does not apply more broadly to other types of defence evidence. It is permissible to require screening of this evidence because of the potential prejudice that could result from its admission. S. 278.93 is constitutional under ss. 7 and 11(d); the accused is not compelled to testify and, therefore, s. 11(c) is not engaged; there is no absolute rule against defence disclosure. The screening of private records is appropriate because the evidence has a high potential for prejudice; it does not constitute a disguised form of self-incrimination. Ultimately, the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice”. Rather, the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system. The impugned provisions strike a balance that protects fundamental justice for accused persons and complainants.

Criminal Law: Sex Offender Registry

R. v. Ndhlovu, 2020 ABCA 307;2022 SCC 38 (39360)

The Sex Offender Information Registration Act was not enacted with complete or total registration as an end in itself. It was enacted to help police prevent and investigate sex offences. The purpose of both challenged measures in the Criminal Code is closely tied to this overall purpose. The specific purpose of s. 490.012 is to capture information about offenders that may assist police to prevent and investigate sex offences. The means to achieve this purpose is mandatory registration. Section 490.013(2.1) was similarly designed to give police a longer period of access to information on offenders at a greater risk of reoffending. The means to achieve this purpose is lifetime registration for sex offenders who commit more than one designated offence. The extent to which requiring all offenders to register is necessary due to the difficulties in assessing risk is an argument grounded in enforcement practicality or administrative convenience. It relates to justification rather than overbreadth. While mandatory registration has the attraction of simplicity and ease, the convenience of requiring every sex offender to register does not make it constitutional. The Crown’s evidence on the challenged measures’ benefits is insufficient to meet its burden under s. 1. Section 490.013(2.1) is declared invalid. Because the declaration affects all those impacted by the enactment of the provision since 2011, offenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration.

Criminal Law: Trial Continued by Another Judge

R. v. J.D., 2020 QCCA 1108; 2022 SCC 15 (39370)

This appeal affords the S.C.C. a first opportunity to interpret s. 669.2(3) of the Criminal Code  which lays down the rules that apply if a trial judge dies or is unable to continue when no adjudication has been made or verdict rendered. The key issue concerns the rules of evidence in a trial commenced again before a new judge sitting alone. There is no reason to require an inquiry that is not provided for by law where the parties have consented to the filing, in a trial that was commenced again, of a transcript of testimony given at a first trial. Such an inquiry would completely alter the judge’s role, minimize the judge’s ability to assess the transcript of prior testimony and run counter to the presumption of the competence of counsel.

Criminal Law: Trial Delay; Retrial Delay

R. v. J.F., 2020 QCCA 666; 2022 SCC 17 (39267)

An accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later, as is the case exceptionally on appeal. But, when an accused brings an application after an appeal court has ordered a new trial, the accused will no longer be able to raise the delay from their first trial. Only the retrial delay will be counted in calculating delay based on the presumptive ceilings applicable under the Jordan framework. The ceilings set in Jordan apply to retrial delay. Waiver must be proved by the prosecution (Askov, at p. 1229). For a court to find that delay has been waived, the accused must therefore take “some direct action from which a consent to delay can be properly inferred” (Askov, at p. 1229). The “mere silence of the accused is not sufficient to indicate a waiver of a Charter right” (Askov, at p. 1229; see also Mills, at p. 929). To be inferable, implicit waiver “requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver” (Morin, at p. 790).

Criminal Law: Trial Judge Management Powers

R. v. Samaniego, 2020 ONCA 439; 2022 SCC 9 (39440)

Under their trial management power, trial judges are permitted to control their courtroom and streamline the functioning of the trial. Exercises of trial management will generally not overlap with evidentiary rulings, but sometimes they do. This does not mean that erroneous evidentiary rulings can be justified under the guise of trial management. They cannot. Here, some of the impugned rulings involved trial management decisions, while others involved a mixture of evidentiary determinations and trial management decisions. Three of the impugned rulings were free from error. The fourth ruling was erroneous in part; however, it occasioned no substantial wrong or miscarriage of justice.

Family Law: Child Protection

B.J.T. v. J.D., 2020 PECA 14; 2022 SCC 24 (39558)

The S.C.C. set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the P.E.I. Child Protection Act. As to the applicable standard of review when assessing a hearing judge’s conclusions concerning custody in a child welfare context, Van de Perre v. Edward [2001] 2 S.C.R. 1014, at para. 11, citing Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12, governs: an appellate court is not entitled to intervene unless there has been “a material error, a serious misapprehension of the evidence, or an error in law”. The best interests of the child is the guiding principle in most custody matters. To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate the individual factors in slightly different ways. It is a highly contextual and fact driven exercise that involves a high level of judicial discretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process. An appellate court is not permitted to redo a lower court’s analysis to achieve a result that it believes is preferable in the best interests of the child. In addition to the supervisory function of the courts, a child protection agency’s conduct can provide crucial context for understanding the status quo and the position taken by the agency in the proceedings. Courts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whether arising from a private dispute, an adoption, or the state’s apprehension of children in need of protection. In sum, the applicable statutory factors herein do not direct a court to weigh biology in the assessment of a child’s best interests. Indeed, the omission signals that relatively less weight ought to be afforded this factor. But the statutory factors are non-exhaustive.

Family Law: Child Removal; Return Orders

F. v. N., 2021 ONCA 688; 2022 SCC 51 (39875)

The outcome of this appeal turns on whether the Ontario courts should exercise jurisdiction over the merits of a custody dispute involving an international child abduction. The dispute stems from the wrongful retention in Ontario by the appellant, the “Mother”, of two very young children who habitually reside in Dubai, in the United Arab Emirates (“UAE”). The children are retained in the province without the consent of the respondent, the “Father”, who remained in Dubai. What is at issue on appeal is not who, as between the parties, should be awarded the disputed custody rights in respect of the two children but instead which court — the Ontario court or a court in the UAE — should decide the matter. As with any decision affecting children, judges should consider the best interests of the child in exercising their s. 40 powers (C.A. reasons, at paras. 179 81, per Brown J.A.; M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 146). However, due to the interim nature of the powers, courts should not embark on a detailed analysis of the best interests factors set out in s. 24(3) of the CLRA at this stage. Brown J.A. rightly rejected the idea that consideration of the best interests of the child under s. 40 “must be performed in the same way as when determining custody (decision making responsibility/parenting time) under CLRA s. 24” (para. 182; see also paras. 183 84). Section 40 orders are not custody orders on the merits. Nevertheless, judges must ensure the order itself properly protects the child’s interests. Incorporating undertakings from the parties within the return order may effectively facilitate a child’s return by providing an answer to the anticipated risk of harm (Bolla, at paras. 140-45). Moreover, the S.C.C. shares the view of Chamberland J.A., writing in a Hague Convention case, that a left behind parent has no advantage in acting in bad faith and reneging from their commitments in the foreign jurisdiction; this is a fact that the foreign authorities deciding custody would consider on the merits, and those same authorities [translation] “would certainly hold against him in a context where the best interests of the children will be at the centre of the analysis” (Droit de la famille — 15751, at para. 36). In other words, when the ultimate custody and access determinations are made in a UAE court, the Father will have every interest in showing that he respected undertakings made in the best interests of the children. It was not unreasonable for the trial judge to rely on the undertakings here.

Family Law: Post-Trial Evidence; Mobility

Barendregt v. Grebliunas, 2021 BCCA 11; 2022 SCC 22 (39533)

The Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of new evidence on appeal. Instead, it applied a different test and admitted the evidence. It erred in doing so. The evidence did not satisfy the Palmer criteria. The respondent sought to overturn an unfavourable trial outcome by adducing evidence on appeal that could have been available at first instance, had he acted with due diligence. Effectively, he was allowed to remedy the deficiencies in his trial evidence on appeal — with the benefit, and guidance, of the trial reasons. This gave rise to considerable unfairness. And in any event, evidence in family law appeals that is tendered for the purpose of showing a material change of circumstances is more appropriately raised at a variation hearing. Palmer should not be used to circumvent a variation scheme that Parliament specifically designed to address such developments. Admission of this evidence on appeal was not in the interests of justice. A moving parent’s reasons for relocation and the “maximum contact factor” are relevant only to the extent they bear upon the best interests of the child; a parent’s testimony about whether they will move regardless of the outcome of the relocation application should not be considered; and family violence is a significant factor impacting the best interests of the child. Here, the trial judge did not err in his conclusion that relocation was in the best interests of the children. His factual findings and the weight he ascribed to factors bearing on the children’s best interests warranted deference on appeal. In the absence of any reviewable error, the Court of Appeal was wrong to intervene. The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate.

Municipal Law: Expropriation

Annapolis Group Inc. v. Halifax Regional Municipality, 2021 NSCA 3; 2022 SCC 36 (39594)

The S.C.C. 2006 CPR case signifies that a constructive taking occurs where: a beneficial interest — understood as an advantage — in respect of private property accrues to the state, which may arise where the use of such property is regulated in a manner that permits its enjoyment as a public resource; and the impugned regulatory measure removes all reasonable uses of the private property at issue. The jurisprudence — upon which the CPR test was expressly stated as resting — supports an understanding of “beneficial interest” as concerned with the effect of a regulatory measure on the landowner, and not with whether a proprietary interest was actually acquired by the government. Conversely, that same jurisprudence supports the view that “beneficial interest”, as that term appears in the first part of the test stated in CPR, refers not to actual acquisition of the equity that rests with the beneficial owner of property connoting rights of use and enjoyment, but to an “advantage” flowing to the state. CPR — properly understood — trains the court’s eye on whether a public authority has derived an advantage, in effect, from private property, not on whether it has formally acquired a proprietary interest in the land; to hold otherwise would be to erase the long standing distinction between de jure and de facto expropriation from Canadian law. The reviewing court must decide: whether the public authority has acquired a beneficial interest in the property or flowing from it (i.e. an advantage); whether the state action has removed all reasonable uses of the property. This gives effect to the S.C.C. acknowledgement of a common law right to compensation where the two-part CPR test is satisfied. It accords with imperatives of justice and fairness, which underpin the assessment of expropriation claims, and remedies situations where cases do not neatly fit within the expropriation legislative framework and would otherwise “fall between the cracks”.

Patents: Infringement; Accounting of Profits Remedies

Nova Chemicals Corp. v. Dow Chemical Co., 2020 FCA 141; 2022 SCC 43 (39439)

While in certain circumstances the hypothetical profits that an infringer could have earned by selling a non-infringing option are relevant to a calculation of an accounting of profits, this is not such a case. A “non-infringing option” is any product that helps courts isolate the profits causally attributable to the invention from the profits which arose at the same time the infringing product was used or sold, but which are not causally attributable to the invention. Whether there is a relevant non-infringing option that can assist the court in this calculation is a question of fact. The infringer has the onus of establishing that there is a relevant non-infringing option. On the basis of the record before the reference judge, there were no relevant non-infringing options to consider. Additionally, for the first time in Canadian law, the reference judge awarded “springboard profits” to Dow. Springboard profits are profits that arise post-patent-expiry but that are causally attributable to infringement of the invention during the period of patent protection; an extension of the fundamental principle that, in calculating an accounting of profits, the infringer must disgorge all profits causally attributable to infringement of the invention. It is irrelevant when the profits arise, provided they are causally connected to infringement. Like non-infringing options, whether profits that arise post-patent-expiry are causally attributable to infringement of the invention, during the period of patent protection, is a question of fact. On the basis of the record before him, the reference judge determined that some of Nova’s post-patent-expiry profits were causally attributable to infringement of the invention: by infringing Dow’s patent, Nova had entered the market created by the invention early, built market share, and used that market advantage to earn profits post-patent-expiry that were causally attributable to infringement of the invention during the period of patent protection. There is no reason to disturb these factual findings. In sum, (1) springboard profits are legally permissible; (2) whether post-patent-expiry profits are causally attributable to patent infringement is a question of fact and Nova has not shown palpable and overriding error in the reference judge’s findings; and (3) for the reasons given above, Nova is not entitled to deduct the profits it could have earned from pail and crate plastics.

Tax: Rescission; Retroactive Planning

Canada (Attorney General) v. Collins Family Trust, 2020 BCCA 196; 2022 SCC 26 (39383)

The S.C.C. has previously barred access to rectification where sought to achieve retroactive tax planning (Canada (Attorney General) v. Fairmont Hotels Inc. 2 S.C.R. 720, at para. 3). Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done (Fairmont Hotels, at paras. 23‑24, citing Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622, at para. 45). At issue in this appeal is whether taxpayers are also barred from obtaining other equitable relief ⸺ here, rescission of a series of transactions ⸺ sought to avoid unanticipated adverse tax consequences arising from the ordinary operation thereon of the Income Tax Act. Equity has no place here, there being nothing unconscionable or otherwise unfair about the operation of a tax statute on transactions freely undertaken. It follows that the prohibition against retroactive tax planning should be understood broadly, precluding any equitable remedy by which it might be achieved, including rescission.

Tax: Stock Options

Des Groseillers v. Quebec (Agence du revenu), 2021 QCCA 906; 2022 SCC 42 (39879)

The S.C.C. dismissed the appeal, in a brief judgment, quoting the Qué. C.A.:

  • “First, section 50 A. [Québec Taxation Act] provides for two things. To begin with, it indicates the time at which a benefit received because of an agreement referred to in section 48 T.A. will be taxed. In addition, by treating the transfer as employment income, section 50 creates an exception to the general rule that the disposition of property gives rise to a capital gain or loss. Subparagraph 422(c)(ii) T.A., in attributing a value to the consideration, has no impact on these legal fictions. That being said, there is, in my view, no actual conflict between section 50 and section 422.
  • Second, the very broad formulation of the rule set out in section 422 suggests that the legislature’s purpose was to attribute to any disposition of property by a person a value equal to the fair market value of the property for the purposes of computation of income. Moreover, the legislature did not explicitly exclude the Division of the statute relating to employee stock options from the application of section 422 when it enacted the Taxation Act in 1972 or when subsequent amendments were made thereto. Its silence in this regard is telling, because there are several express references in the A. to the non applicability of section 422.”

Like the Court of Appeal, the S.C.C. concluded Mr. Des Groseillers was properly assessed. pursuant to s. 50 T.A., for the benefit received. In this case, and on the basis of s. 422(c)(ii) T.A., the value of the consideration received is deemed to be equal to the fair market value of the stock options at the time of the gift.

Oral Judgments

Criminal Law: Arrest; Strip Search

R. v. Ali, 2020 ABCA 344; 2022 SCC 1 (39590)

Moldaver J. (Brown, Rowe and Jamal JJ. concurring): “Mr. Ali appeals as of right to this Court. A majority of the Alberta Court of Appeal affirmed his conviction for possession of cocaine for the purpose of trafficking. They found that the trial judge did not err in determining that the police’s strip search of Mr. Ali, incident to his lawful arrest, complied with s. 8 of the Canadian Charter of Rights and Freedoms in accordance with the principles governing strip searches set out by this Court in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. A majority of this Court agrees with the conclusion of the majority of the Court of Appeal and would dismiss the appeal. Where a strip search is conducted as an incident to a person’s lawful arrest, there must be reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest (see Golden, at para. 99). These grounds are met for the strip search where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest (see Golden, at paras. 94 and 111). Like the majority of the Court of Appeal, we are satisfied that there were reasonable and probable grounds justifying the strip search: the police had confidential source information that their target was in possession of a large quantity of cocaine and that he kept most of his drugs on his person; Mr. Ali was found next to a table with drugs, other than cocaine, and with items consistent with drug trafficking, including a scale, money, and a ringing cell phone; Mr. Ali’s pants were partially down as he was being arrested; and one of the officers reported seeing Mr. Ali reaching towards the back of his pants. Viewed in its totality, this was clearly some evidence suggesting the possibility that Mr. Ali had concealed drugs, particularly cocaine, in and around the area of his buttocks. We would not give effect to Mr. Ali’s argument that a hearsay error arose because the officer who requested the strip search, Cst. Darroch, testified that he was told by another officer, Cst. Odorski, that Mr. Ali was reaching towards the back of his pants, and Cst. Odorski did not refer to this in his testimony at trial. Mr. Ali now concedes that Cst. Darroch’s testimony was not inadmissible hearsay because it was not entered for the truth of its contents; the question, he maintains, was whether Cst. Darroch could reasonably rely on the information from Cst. Odorski as a factor in deciding whether he had reasonable and probable grounds to request the strip search. Defence counsel chose not to cross examine either officer about this information. It stood uncontradicted. This tactical choice undermines Mr. Ali’s submission that it was unreasonable for Cst. Darroch to rely on Cst. Odorski’s information. For these reasons, we would dismiss the appeal.”  Côté J.: “I agree with the majority’s disposition of the appeal, but for different reasons. In my view, the respondent Crown failed to discharge its burden of establishing the legal basis for the strip search of Mr. Ali in accordance with the principles set out by this Court in Golden. As such, I find that Mr. Ali’s s. 8 Charter rights were violated, substantially for the reasons of Veldhuis J.A., at paras. 27-61. However, I part ways with Veldhuis J.A. with respect to the proper remedy. Relying on Golden, at paras. 118-19, Mr. Ali argues that this Court should substitute an acquittal because conducting an analysis under s. 24(2) of the Charter would be a mere theoretical exercise. I disagree. As in Golden, I acknowledge that Mr. Ali has already served his custodial sentence. Nevertheless, he remains subject to restrictions to his liberty, including a firearms prohibition and a DNA order. As such, determining whether the evidence ought to be admitted will have tangible consequences, both for Mr. Ali and for the public. Moreover, the facts of this case are plainly distinguishable from Golden. The strip search in Golden was coercive and forceful, conducted in a public area without authorization from a senior officer, and may have jeopardized the accused’s health and safety. The search of Mr. Ali has none of these characteristics. It is undisputed that it was conducted in a reasonable manner. In my view, it is worthwhile to assess whether admitting evidence obtained as a result of the Charter breach would do further damage to the repute of the justice system. I further acknowledge that, as the courts below found no breach of s. 8 in this case, they did not consider whether the evidence should be excluded under s. 24(2). However, I accept the Crown’s submission that the record before this Court is sufficient to determine whether the admission of the evidence would bring the administration of justice into disrepute. Therefore, I see no utility in sending the matter back for redetermination. In these circumstances, it is open to this Court to conduct its own first-instance s. 24(2) analysis (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 75). Applying the three lines of inquiry from R. v. Grant, [1993] 3 S.C.R. 223, I would not exclude the evidence. First, the seriousness of the police conduct in this case was at the lowest end of the spectrum. Cst. Darroch believed in good faith that he had the requisite grounds to strip search Mr. Ali. He relayed his grounds to his superior officer, who authorized the search at the police station. I see no basis to suggest that the police wilfully disregarded Mr. Ali’s Charter rights. This factor favours admission. Second, the impact of the strip search on Mr. Ali’s privacy interests, while serious, was somewhat attenuated by the reasonable manner in which it was conducted. At trial, counsel for Mr. Ali noted the search was “as humane as possible given the circumstances” (trial transcript, A.R., at p. 173). In my view, this factor tips only moderately in favour of exclusion. The final Grant inquiry strongly favours admission. Mr. Ali was in possession of 65 grams of crack cocaine. The Crown would have no case without this evidence. There is a strong societal interest in adjudicating this case on its merits. On balance, I conclude that excluding the evidence would bring the administration of justice into disrepute. To be clear, I would emphatically re-affirm the principles arising from Golden and the high threshold the Crown must meet to justify a warrantless strip search. However, while the Crown failed to meet that threshold in this case, the conduct of the police did not undermine the integrity of the justice system. Therefore, I would not exclude the evidence. For the foregoing reasons, I would dismiss the appeal and affirm the conviction.”

Criminal Law: Delay

R. v. Boulanger, 2021 QCCA 815; 2022 SCC 2 (39710)

Kasirer J.: “The Crown appeals from a majority decision of the Québec Court of Appeal upholding, in favour of the respondent, a stay of proceedings entered because of the violation of his constitutional right to be tried within a reasonable time. The majority found a net delay of 35 months and 2 days (1,066 days), which exceeds the ceiling set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The issue in the appeal is whether two particular delays — a first period of 84 days and a second of 112 days — must be attributed to the defence because of its conduct. With regard to the period of 84 days, we agree with Chamberland J.A., dissenting in the Court of Appeal, that the delay between March 1 and May 24, 2018 resulted from illegitimate defence conduct and must therefore be attributed to the respondent. It is true that the characterization of delay is a question of law and that the trial judge was not bound by the respondent’s admission in this regard. However, the trial judge did not provide any explanation, even an implicit one, to clarify why he was rejecting the admission for this period (reasons of Chamberland J.A., at para. 173). Since he chose to go against the parties’ suggestion, and in the absence of submissions by them on this specific point, it was especially important that the trial judge provide reasons explaining what he had decided and why (see R. v. G.F., 2021 SCC 20, at paras. 71‑74). With respect, he did not do so. Moreover, as the dissenting judge suggested, it is not sufficient that the step taken by the respondent be legitimate for the delay not to be attributable to him. In this case, it is the manner in which the defence conducted itself with respect to its motion for an unredacted copy of the information that was illegitimate, particularly because of how late that motion was brought. It was not until 15 months after being given the redacted document that the defence decided to bring its motion, even though the parties had already been debating the redaction of other documents for several months (reasons of Chamberland J.A., at paras. 179‑84, properly relying in particular on R. v. Rice, 2018 QCCA 198, at para. 60 (CanLII); see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32). In the circumstances, the entire 84‑day delay between March 1 and May 24, 2018 is attributable to the defence. The motion for an unredacted copy of the information in support of the search warrant and the motion challenging the warrant itself were intrinsically connected, since, according to the defence, it was not possible to hear the challenge to the warrant without settling the debate over redaction. By delaying the filing of the motion for an unredacted copy of the information, the respondent necessarily delayed the hearing on the challenge to the warrant. He must therefore be held responsible for the delay between the day he raised the issue of an unredacted copy of the information (March 1, 2018) and the day the motion challenging the warrant was finally to be heard (May 24, 2018). With regard to the second period in issue, namely the period of 112 days between May 21 and September 10, 2019, the Crown’s ground of appeal must be dismissed. The majority was correct to intervene, because this delay could not be attributed entirely to the respondent despite the fact that his counsel was unavailable on certain dates. This Court did of course explain in Jordan that where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence (para. 64). All participants in the criminal justice system, including the defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root causes (Cody, at para. 36). That being said, in some cases, the circumstances may justify apportioning responsibility for delay among these participants rather than attributing the entire delay to the defence. Here, the parties had asked the judge as early as November 2018 to add a third trial date to the two dates already scheduled in January 2019. Their request was denied. On the first day of the trial in January 2019, it became clear that the two scheduled dates would not be enough, in part because of the prosecution’s changes in strategy. Even though they discussed potential dates for the continuation of the trial and counsel for the respondent informed the judge and the prosecution that she would be unavailable on certain dates in May 2019, the judge proposed and insisted on a date in September 2019 without considering the possibility of continuing the trial on an earlier date when both parties were available. The judge had therefore known since November 2018 that an additional day would be needed, and in January 2019, when he was assessing potential availability for the continuation of the trial, proximity to the Jordan ceilings had to be taken into consideration (R. v. K.G.K., 2020 SCC 7, at para. 61). That being said, it was not until August 7, 2019 that the respondent informed the prosecution of his intention to file a motion under s. 11(b) of the Canadian Charter of Rights and Freedoms. Therefore, in addition to the conduct of defence counsel and the prosecution’s changes in strategy, it was because of institutional delay and the court’s lack of initiative that no other date was offered sooner (reasons of Cournoyer J.A., at para. 148). In the particular circumstances of this case, we are of the view that it is “fair and reasonable” to apportion responsibility for the 112‑day delay and to attribute up to half of the delay between June 1, 2019 (the day after the last date on which counsel for the respondent was unavailable) and September 10, 2019 (the actual date on which the trial continued) to the defence (R. v. K.J.M., 2019 SCC 55, at para. 96). Even calculating from this premise, since the total delay between these two dates is 101 days, we attribute 51 days (June 1 to July 22, 2019) to the defence. A delay of 10 days (between May 21 and 31, 2019) should also be attributed to the respondent given the concession he made in the Court of Appeal (reasons of Cournoyer J.A., at para. 150, fn. 83). In the end, in addition to the period identified by the majority of the Court of Appeal, a delay of 84 days (period of March 1 to May 24, 2018) and a delay of 61 days (from May 21 to 31, 2019 and from June 1 to July 22, 2019) are attributable to the defence. This brings the total number of days attributable to the defence to 225, and the net delay to 950 days, or more than 31 months. The 30‑month Jordan ceiling has therefore been exceeded and the delay is presumed to be unreasonable. No exceptional circumstance has been raised to justify exceeding the ceiling. It should be noted that the respondent was charged in June 2016, close to the date on which the decision in Jordan was rendered. The expectation today is that such a situation would not happen again. For these reasons, the Court dismisses the appeal and upholds the stay of proceedings entered by the trial judge.”

Criminal Law: Delay

R. v. Safdar, 2021 ONCA 207; 2022 SCC 21 (39629)

Brown J.: “The appellant, Syed Adeel Safdar, was tried for offences related to the abuse of his wife. At the conclusion of evidence and submissions, he applied for a stay based on a breach of his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. The trial judge heard the application while preparing his decision on the trial proper, then reserved that decision and granted the stay. In his reasons for ordering a stay, he also advised that he had completed his reserved trial decision, which remained under seal pending the outcome of any appeal from his stay order. The Crown appealed the stay order, arguing that, on the authority of this Court’s decision in R. v. K.G.K., 2020 SCC 7 (which was not available to the trial judge), the trial judge had erred by including as part of the total delay the period from the end of the evidence and argument to the release of the stay decision. Absent that error, the total delay fell under 30 months. The Court of Appeal for Ontario agreed, set aside the stay order and referred the matter back to the trial judge to release his decision on the trial proper. Mr. Safdar now appeals the Court of Appeal’s decision to this Court. We agree with the Court of Appeal that K.G.K. is dispositive of the central issue in this appeal. For the purposes of determining whether the total delay exceeded the Jordan presumptive ceiling, the time between the conclusion of evidence and argument, and the bringing of the s. 11(b) application in this case, should not have been counted (K.G.K., at paras. 31 and 33; R. v. J.F., 2022 SCC 17, at para. 27). Nor, in our view, and despite Mr. Hasan’s able submissions before us, has Mr. Safdar established that the total delay of 29.25 months was markedly longer than reasonable delay in the broader context of the trial (K.G.K., at paras. 3, 23 and 54-55), taking into account the length of time taken for the application, the moderate complexity of the case, and other institutional factors that he raises (K.G.K., at paras. 65 and 68-72). We also agree with the Court of Appeal’s disposition of the other issues raised by Mr. Safdar in this appeal, substantially for the reasons it gives. The appeal is dismissed.”

Criminal Law: Delay

R. v. Ste-Marie, 2020 QCCA 1118; 2022 SCC 3 (39381)

Kasirer J.: “The Crown appeals from a judgment of the Quebec Court of Appeal quashing four convictions and entering a stay of proceedings in favour of the respondents because of a violation of their right to be tried within a reasonable time. The appellant asks that the stay of proceedings be set aside and that the case be remanded to the Court of Appeal for a decision on the nine grounds of appeal that it chose not to address, as it found it unnecessary to do so in the circumstances. On September 14, 2009, the respondents were charged with laundering proceeds of crime, conspiracy and criminal organization offences. In 2014 and 2015, they filed motions for a stay of proceedings under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. On September 17, 2015, before this Court rendered its decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Court of Québec dismissed the motions, finding that a stay of proceedings was not an appropriate remedy. Because the judge found a 77‑month delay between the charges and the anticipated end of the trial, he held that s. 11(b) of the Charter had been infringed. However, he declined to enter a stay of proceedings on the ground that the accused had not been prejudiced by the delay. On this point, the judge held that [translation] “there is as much prejudice resulting from the charge, and not from the unreasonable delay”, and that there was a “clear and compelling” societal interest in having the accused stand trial (Court of Québec reasons, A.R., vol. I, at p. 60). The judgment of conviction was rendered on June 22, 2016. In the Court of Appeal’s view, the judge had no choice but to enter a stay of proceedings after finding an infringement of s. 11(b) (citing R. v. Rahey, [1987] 1 S.C.R. 588). The Court of Appeal declined to review the trial judge’s reasons concerning the infringement of s. 11(b), finding that the appeal record was not sufficiently complete to permit it to determine whether the judge’s assessment of the delays was inadequate or wrong. In this Court, the Crown acknowledges that the trial judge made an error, but it takes the view that the error was not determinative of the outcome. It argues that the Court of Appeal erred in entering a stay of proceedings in reliance on the trial judge’s erroneous and premature conclusion that s. 11(b) had been infringed. With respect, the trial judge erred in assessing the prejudice suffered by the accused at the remedy stage rather than considering it in determining whether s. 11(b) had been infringed, in accordance with the criteria applicable at the time set out in R. v. Morin, [1992] 1 S.C.R. 771. Despite that error, however, a functional analysis of his reasons shows that he considered the relevant factors and reached the correct conclusion, namely that the motions for a stay of proceedings should be dismissed. Although he was mistaken about the stage of the analysis at which prejudice had to be considered, his refusal to enter a stay of proceedings nonetheless makes it possible to conclude that s. 11(b) was not infringed based on the Morin criteria. The Court of Appeal failed to make this finding (paras. 17‑18). In the circumstances, we are all of the view that the Court of Appeal erred in entering the stay of proceedings that the judge had himself denied. With respect, the Court of Appeal erred in refusing to re‑examine the unreasonableness of the delays on the ground that the record before it was incomplete. On appeal, the Crown filed a statement of admissions by the parties — filed by the parties at trial under s. 655 of the Criminal Code, R.S.C. 1985, c. C-46 — that contained a detailed chronology of events, the content of which was not analyzed at all by the Court of Appeal. In our opinion, the evidence in the record allowed the appeal judges to carry out that analysis. It should be noted that a statement of admissions by the parties was not part of the appeal records in the cases on which the Court of Appeal relied, at para. 14 of its reasons, to justify its refusal to re‑examine the delays in this case. Although a court is not bound by admissions of law, a joint statement may be useful on appeal and may help reduce the delays leading to the infringement alleged by an accused (see, e.g., R. v. Bryant, 2021 QCCA 1807, at para. 3). The evidence in the record shows that the respondents directly caused most of the delays of which they complain and that they attempted to derail the trial by filing multiple applications, motions and interlocutory appeals, which were unsuccessful for the most part. These delays are largely but not exclusively attributable to the defence and must be subtracted from the total delay. The respondents also caused additional delays by insisting that a certain lawyer represent them despite a clear conflict of interest. In 2011, the preliminary inquiry judge found that Mélanie and Dax Ste‑Marie could not be represented by the same lawyer. As a result, they represented themselves. Despite the conflict of interest, they continued to insist that the lawyer retained by their father, Michel Ste‑Marie, represent all three of them. They maintained that position for more than two years. That course of conduct was of course untenable and caused additional delay. We reach the same conclusion with respect to Richard Felx. Although the conflict of interest did not directly involve him, he never expressed concern about the delays caused by his co‑accused. Moreover, the prosecution offered him his own preliminary inquiry several times, but he always refused. Jordan reaffirmed the principle, which is applicable in this case, that the defence should not be allowed to benefit from its own delay‑causing conduct or from its tactics aimed at causing delay (paras. 60 and 63; see Morin, at p. 802; R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1227‑28). The appellant argues that once the deductions are made, the net delay is 35 months at the most (A.F., at para. 41). The respondents Mélanie Ste‑Marie, Dax Ste‑Marie and Richard Felx refer to this same calculation in their factum (R.F., at para. 37). Assuming for the sake of argument that the residual delay exceeds the ceiling set in Jordan, the presumption of unreasonableness may be rebutted on the basis of the transitional exceptional circumstance (Jordan, at paras. 96‑97). The transitional exceptional circumstance may apply where it is shown that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 68). In R. v. Rice, 2018 QCCA 198, at para. 202 (CanLII), Vauclair J.A. noted that, for this purpose, the court may examine the conduct of the accused: [translation] “[t]he absence of haste is an indicator of the lack of concern the accused has for delays and may be helpful in assessing prejudice”. This is in line with the factual determination made by the trial judge in this case, who found that the prejudice complained of by the respondents did not result from delay. In this situation, in light of the transitional exceptional circumstance identified in Jordan, it should be concluded that s. 11(b) of the Charter was not infringed and that the trial judge was right to dismiss the motions for a stay of proceedings. For these reasons, we would allow the appeal, set aside the stay of proceedings and remand the case to a new panel of the Quebec Court of Appeal for consideration of the other grounds of appeal that remain outstanding.”

Criminal Law: Hearsay

R. v. Furey, 2021 NLCA 59; 2022 SCC 52 (40038)

Karakatsanis J.: “We are of the view that the appeal should be allowed. The trial judge did not err in admitting the hearsay evidence on the voir dire. However, we would emphasize that the necessity of receiving hearsay evidence is never so great that the principled approach’s requirement of threshold reliability can be sacrificed. Admitting unreliable hearsay evidence against an accused compromises trial fairness, risks wrongful convictions and undermines the integrity of the trial process (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 47-49). This Court has recognized that necessity and reliability — making up the principled approach to hearsay evidence — “work in tandem”; in particular, “if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed” (R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 72). Indeed, “[i]n the interest of seeking the truth, the very high reliability of the statement [can] rende[r] its substantive admission necessary” (Khelawon, at para. 86, citing R. v. U. (F.J.), [1995] 3 S.C.R. 764). However, this Court has never said that reliability becomes more flexible as necessity increases. While the indicia of reliability required to address specific hearsay concerns may vary with the circumstances of each case (Khelawon, at para. 78), threshold reliability must be established in every case. As this Court affirmed in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, “the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents” (para. 32, citing Khelawon, at para. 49). Indeed, where this Court has considered the out-of-court statements of deceased declarants, we have consistently insisted on “circumstantial guarantee[s] of trustworthiness” (R. v. Smith, [1992] 2 S.C.R. 915, at pp. 937-38), or “a sufficient substitute basis for testing the evidence” (Khelawon, at para. 105). Thus, in all cases, whatever may be the degree of necessity, such evidence must meet the requirement of threshold reliability in order to be admissible. That said, we do not read the trial judge’s reasons as based on a relaxed threshold of reliability. Rather, they show that she applied the reliability threshold described by this Court in Bradshaw, at para. 31. She remarked that the statement was video-recorded, “reasonably contemporaneous with the events and was given to police without hesitation” (voir dire reasons, at paras. 28-29, reproduced in A.R., vol. I, at p. 12). She also considered corroborative evidence, and determined that the explanations alternative to the statement’s truth “would seem unlikely” (para. 44). Based on these considerations, she concluded “that contemporaneous cross-examination, while preferable as in any case, would not likely add much to the process of determining the truth of what [the declarant] said in his statement” (para. 46). Thus, we are satisfied that the trial judge’s reasons, read as a whole, show that she properly applied the law relating to the admission of hearsay evidence, and did not relax the minimum threshold of reliability. We agree with the dissent in the Court of Appeal that the references in the final paragraphs of the trial judge’s reasons do not undermine her previous conclusion that threshold reliability was established. For these reasons, we allow the appeal, set aside the order of the Court of Appeal, and restore the respondent’s convictions.”

Criminal Law: Homicide

R. v. Doxtator, 2022 ONCA 155; 2022 SCC 40 (40063)

Kasirer J.: “A majority of the Court would allow the appeal. The trial judge’s instructions for Mr. Doxtator properly left with the jury the reasonably available verdicts. As MacPherson J.A., dissenting, correctly observed in the Court of Appeal, the trial judge explicitly instructed the jury to consider Mr. Doxtator’s case separately from that of the co-accused. Nothing in the record on appeal permits this Court to depart from the assumption that juries generally follow explicit instructions: see R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 692-93. This is sufficient for the appeal to be allowed, to set aside the order for a new trial for the respondent Richard Doxtator and to restore his conviction for first degree murder. Justices Karakatsanis and Rowe, dissenting, would dismiss the appeal substantially for the reasons of Roberts J.A. in the Court of Appeal.”

Criminal Law: Homicide

R. v. Pope, 2021 NLCA 47; 2022 SCC 8 (39817)

The Chief Justice: “A majority of this Court, made of Justice Moldaver, Justice Karakatsanis, Justice Brown, Justice Kasirer and Justice Jamal, would dismiss the appeal, essentially for the reasons of the majority of the Court of Appeal, whereas myself, Justice Côté, Justice Rowe and Justice Martin would allow the appeal, essentially for the reasons of Justice Goodridge. The appeal is therefore dismissed.”

Criminal Law: “In-Dock” Identification Evidence

R. v. Clark, 2022 SKCA 36; 2022 SCC 49 (40090)

Karakatsanis J.: “We agree with Justice Leurer, in dissent, that a specific Hibbert type instruction (R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445) was required in the circumstances of this case. The appeal is allowed, substantially for the reasons of Justice Leurer. The conviction is set aside and a new trial ordered.”

Criminal Law: Ineffective Assistance of Counsel

R. v. White, 2021 NLCA 39; 2022 SCC 7 (39785)

Karakatsanis J.: “This appeal as of right comes to us based on the dissent of Hoegg J.A. in the Court of Appeal of Newfoundland and Labrador. For the following reasons, we are all agreed to allow the appeal. The respondent, Trent White, was charged with several offences following an incident on a fishing vessel off the coast of Labrador in 2017. The charges included aggravated assault, an offence for which Mr. White had a right to choose between a trial in the Provincial Court, a trial in the Supreme Court before a judge alone, and a trial in the Supreme Court before a judge and jury (Criminal Code, R.S.C. 1985, c. C-46, s. 536(2)). His trial counsel told the court that Mr. White was electing for a trial in Provincial Court. He was later convicted of assault, aggravated assault, and mischief. Mr. White appealed, seeking a new trial on the basis of ineffective assistance of counsel. According to him, his trial counsel had failed to advise him of his choices and had elected for a Provincial Court trial on his behalf without discussion or instructions. Mr. White did not indicate, however, that he would have considered a different election, or that he would elect differently on a retrial. A majority of the Court of Appeal of Newfoundland and Labrador accepted Mr. White’s uncontradicted evidence, allowed his appeal, and ordered a new trial. Reasoning that an election is one of the important rights of an accused, the majority concluded that his counsel’s failure to advise his client, or to seek his instructions on the choice, undermined trial fairness and resulted in a miscarriage of justice, satisfying the test for ineffective assistance of counsel (para. 23 (CanLII)). Citing the Ontario Court of Appeal’s decision in R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, it explained that Mr. White was “not required to establish further prejudice” (para. 12). We agree that the right to elect the mode of trial is an important right that should be exercised by the accused. But we do not agree that Mr. White has shown that the circumstances of this case resulted in a miscarriage of justice. Rather, we agree with Hoegg J.A., in dissent, that ineffective assistance of counsel was not made out. Ineffective assistance has a “performance component” and a “prejudice component”: for such a claim to succeed, the appellant must establish that (1) counsel’s acts or omissions constituted incompetence; and (2) that a miscarriage of justice resulted (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26). Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial. Even accepting Mr. White’s evidence that there was no discussion or consultation regarding his right of election, it did not rise to a miscarriage of justice in this case. In G.D.B., the Court explained that counsel’s failure to discuss and obtain instructions on fundamental decisions relating to an accused’s defence “may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice” (para. 34). Stark itself recognizes this at para. 32. However, the Court has never provided that the loss of those decisions alone warrants a new trial on ineffective assistance grounds. To the extent that Stark suggests otherwise, it is incorrect. The accused must, in most cases, demonstrate more than the loss of choice. Although it did not address ineffective assistance of counsel, the Court in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, explained that to withdraw a guilty plea on the basis that the accused was unaware of legally relevant consequences, an accused must show subjective prejudice. Subjective prejudice demanded that an accused demonstrate there was a “reasonable possibility” they would have acted differently (para. 6). The Court was unanimous that a mere failure to exercise an informed choice was insufficient. In our view, these principles also apply to an accused’s election of the mode of trial. Further, Mr. White’s request for a new trial cannot succeed on the basis of an appearance of unfairness. The standard for establishing a miscarriage of justice on this basis is high; the defect must be “so serious that it shakes public confidence in the administration of justice” (R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, quoting R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89). While the loss of his right to elect was serious, the facts of this appeal do not rise to that standard. Indeed, if Mr. White’s convictions were set aside, and he proceeded with the same election on retrial, that could undermine public confidence in the administration of justice. Finally, even if Mr. White’s loss of his election amounted to a procedural error under s. 536(2) of the Criminal Code, the Provincial Court retained jurisdiction to hear the matter, since the court had jurisdiction “over the class of offence” under s. 686(1)(b)(iv) of the Criminal Code (R. v. Esseghaier, 2021 SCC 9, at para. 48, fn. 2). For these reasons, we would allow the appeal and remand the matter to the Court of Appeal to address Mr. White’s remaining grounds of appeal, which were not addressed below.”

Criminal Law: Provocation

R. v. Alas, 2021 ONCA 224; 2022 SCC 14 (39654)

The Chief Justice: “Mr. Alas was convicted at trial of second degree murder after he stabbed the deceased six times during an altercation at a bar. A majority of the Ontario Court of Appeal (MacPherson J.A. dissenting) overturned this verdict and ordered a new trial. The Crown appeals to this Court as of right. The sole issue is whether there was an air of reality to the defence of provocation, such that the trial judge erred in failing to put the defence to the jury. This offence pre-dated the amendment to the provocation provision, which applies to offences committed on or after July 17, 2015. We find no error in the trial judge’s determination that there was no air of reality to the defence of provocation. The standard of review for whether there is an air of reality to the defence of provocation is correctness (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55). The key issue here is whether there is sufficient evidential basis as to the fourth element of the provocation defence — that the accused acted on the sudden. Taking the evidence at its highest for the accused, for present purposes, the subjective element of the test for provocation has not been met. The accused did not react “on the sudden” before there was time for his passion to cool. It is beyond the range of reasonable inferences to say that Mr. Alas’ reaction to the deceased making a punching/lunging motion at the women was “on the sudden”; rather, it was the culmination of an altercation that Mr. Alas both instigated and anticipated. … the appeal is allowed and the conviction is restored.”

Criminal Law: Role of Court of Appeal v. Trial Judge

R. v. Brunelle, 2021 QCCA 783; 2022 SCC 5 (39701)

The Chief Justice: “The Crown appeals as of right from a decision of the Québec Court of Appeal. It argues that the majority overstepped its appellate role by reassessing the evidence without identifying any error in the trial judge’s reasoning. The accused claims that he acted in self defence pursuant to s. 34 of the Criminal Code, R.S.C. 1985, c. C 46. As this Court recently noted in R. v. Khill, 2021 SCC 37, three components must be present for this defence to be successful: (1) the catalyst; (2) the motive; and (3) the response (para. 51). The trial judge rejected the theory of self defence. In her view, the second criterion for this defence was not met. She did not believe that the accused had used force to defend or protect himself from the use or threat of force. In light of her assessment of the evidence, she found rather that the accused had acted out of vengeance. She therefore convicted him of aggravated assault, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace. The majority of the Court of Appeal allowed the accused’s appeal, set aside the guilty verdicts and ordered a new trial on the ground that the trial judge had erred in analyzing the second criterion for self defence. Bachand J.A., dissenting, would instead have dismissed the appeal. Noting that the trial judge’s finding was supported by the evidence, he concluded that it was reasonable and entitled to deference. We are all of the view that the majority of the Court of Appeal erred in intervening in this case, and we agree in part with the reasons of Bachand J.A. When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3). While the unreasonableness of a verdict is a question of law, the assessment of credibility is a question of fact (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10). A trial judge’s assessment of the credibility of witnesses may be rejected only where it “cannot be supported on any reasonable view of the evidence” (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7). As Bachand J.A. correctly pointed out, the question in this case was therefore not [translation] “whether the finding that the [accused] acted out of vengeance was the only one reasonably open to the judge in light of the evidence adduced”, but rather “whether that finding is sufficiently supported by the evidence and involves no palpable and overriding error” (para. 58, citing Beaudry). Bachand J.A. completed his remarks by noting that the trial judge could find beyond a reasonable doubt that the respondent had acted out of vengeance and not for the purpose of defending himself. We are all of the view that the majority of the Court of Appeal failed to consider the trial judge’s privileged position in assessing the evidence (see Beaudry, at para. 62). The majority faulted the trial judge for failing to consider certain evidence, but it did so without clearly identifying a palpable and overriding error in her analysis. However, “[t]he mere fact that the trial judge did not discuss a certain point or certain evidence in depth is not sufficient grounds for appellate interference” (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72). The majority could not simply substitute its opinion for that of the trial judge with respect to the assessment of the credibility of witnesses (R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 23). In the absence of a reviewable error, it should have shown deference. Nor could the majority of the Court of Appeal assert that the trial judge’s finding on the second criterion for self defence was [translation] “vitiated by faulty underlying reasoning” (para. 54). A verdict may be considered unreasonable where it is based on illogical or irrational reasoning, such as where the trial judge makes a finding that is essential to the verdict but incompatible with evidence that is uncontradicted and not rejected by the judge (Beaudry, at para. 98; Sinclair, at para. 21). Here, the inference drawn by the trial judge from the evidence was not incompatible with the evidence adduced. On the contrary, her approach was coherent and supported by evidence that was neither contradicted nor rejected. There were no grounds for intervention. For these reasons, we are all of the view that the appeal should be allowed, the guilty verdicts entered by the Court of Québec restored, and the respondent Daniel Brunelle ordered to report to prison authorities within 72 hours of this judgment.”

Criminal Law: R. v. W.(D.); Credibility

R. v. Gerrard, 2021 NSCA 59; 2022 SCC 13 (39874)

Moldaver J.: “Mr. Gerrard appeals his 13 domestic violence-related convictions to this Court, as of right, based upon a dissenting opinion at the Nova Scotia Court of Appeal. A majority of the Court of Appeal rejected his submissions that the trial judge erred both in her application of R. v. W.(D.), [1991] 1 S.C.R. 742, and her assessment of the complainant’s credibility. We would dismiss the appeal. On the first issue, the trial judge instructed herself correctly on the W.(D.) test and its application. It is immaterial that the trial judge assessed the complainant’s credibility before the accused’s; this does not automatically demonstrate that she reversed the burden of proof (R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21). Rather, the trial judge’s reasons demonstrate that she did not evaluate the complainant’s evidence in isolation, but properly tested it against the evidence of other witnesses — including the accused — and offered cogent reasons for finding that the complainant’s evidence was credible without improperly marginalizing that of Mr. Gerrard’s or any of the other witnesses. Trial judges’ reasons must be read generously, as a whole, and with the presumption that the judge knows the law (R. v. G.F., 2021 SCC 20, at paras. 69 and 74). We see no reason to interfere with her analysis. On the second issue, we do not accept Mr. Gerrard’s submission that the trial judge made improper credibility findings about the complainant regarding lack of motive to lie, lack of embellishment, and reluctance to report to the police and testify. The trial judge properly considered each of these factors in assessing the complainant’s credibility as a direct response to Mr. Gerrard’s defence at trial, namely that the complainant had long threatened to report him to the police and finally followed through with this threat by fabricating allegations because he made a derogatory comment about her to her daughter. Put another way, he alleged that she had a motive to lie and was, in fact, lying. Credibility findings are owed significant deference on appeal (G.F., at para. 81). The trial judge’s reasons were responsive to live issues at trial — raised by Mr. Gerrard — and reveal no error justifying intervention. Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33). Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie. For these reasons, we would dismiss the appeal.”

Criminal Law: R. v. W.(D.); Villaroman

R. v. Vernelus, 2022 QCCA 138; 2022 SCC 53 (40072)

Kasirer J.: “The Court is of the view that the appeal should be dismissed for the reasons given by Moore J.A. for the majority of the Court of Appeal. We agree with the majority that it was reasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt (see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 71, cited by the majority in this case at para. 41 of its reasons). All of the grounds of appeal are without merit. First, the trial judge made no error in applying the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. She wholly rejected the defence evidence while concluding that it did not raise a reasonable doubt. Finding that there was strong circumstantial evidence relating to possession, the judge was faced with a lack of evidence that could counter the inference of guilt reasonably arising from the Crown’s evidence. Nothing in the judge’s reasons suggests that she used the rejection of the defence evidence as positive evidence of guilt. The majority of the Court of Appeal made the same observation at para. 36 of its reasons, finding that [translation] “the judge’s rejection of the appellant’s testimony, due to its inconsistencies, became determinative of and fatal to the outcome of his defence”. Second, the majority of the Court of Appeal did not err in applying Villaroman. The “only reasonable inference” criterion obviously does not mean that guilt had to be the only possible or conceivable inference. The dissenting judge on appeal stressed that it was [translation] “reasonable and not speculative to infer that Mr. Daniel may have placed the firearm in the bag” (para. 28 (footnote omitted)). This is indeed a plausible theory given the fact that Mr. Daniel was sitting beside the bag and that his DNA was found on the firearm. However, as the majority of the Court of Appeal noted, whether or not it was the appellant who placed the firearm in the bag [translation] “is immaterial” (para. 38). Insofar as the prosecution established that the firearm had not been placed there without the appellant’s knowledge or against his will, all of the elements of possession were present. The trial judge could therefore conclude that the only reasonable inference was that the firearm had been concealed in the bag with the appellant’s full knowledge. Third, the trial judge did not err in referring to the appellant’s calm reaction when he was arrested for possession of a firearm. As the majority noted, the judge did not use this to evaluate the appellant’s credibility during his testimony, but rather to assess, as one element of the circumstantial evidence, the appellant’s knowledge of the fact that the firearm was in his bag (majority reasons, at para. 37). For these reasons, the appeal is dismissed.”

Criminal Law: Sexual Assault

R. v. A.E., 2021 ABCA 172; 2022 SCC 4 (39699)(39703)

Moldaver J.: “We would dismiss the appeals and uphold A.E. and T.C.F.’s convictions for sexual assault. The trial judge erred in law, in that he essentially applied a principle of “broad advance consent” (R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 99). Consent must be linked to the sexual activity in question, it must exist at the time the activity occurs, and it can be withdrawn at any time (Barton, at para. 88; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 17). The trial judge failed to address the scope of the complainant’s consent to sexual activity and failed to consider whether her consent was withdrawn. Accordingly, the trial judge’s determination that the complainant had subjectively consented to the sexual activity in question was not entitled to deference. As this Court set out in R. v. Cassidy, [1989] 2 S.C.R. 345, in order to substitute a conviction on an appeal from acquittal, “all the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue” (pp. 354-55). The Cassidy test is met in this case, thereby permitting a substituted conviction under s. 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge’s explicit and implicit findings demonstrate that both A.E. and T.C.F. continued, and A.E. escalated the sexual interactions with the complainant even after she cried out “No”, without taking any steps to find out if she was withdrawing her consent. Specifically, A.E. slapped the complainant’s buttocks, and T.C.F. continued to engage the complainant in sexual activity and ordered her to perform fellatio. In the circumstances, T.C.F.’s assertion of an honest but mistaken belief in consent lacks an air of reality and is unsupported by any reasonable steps (Criminal Code, s. 273.2(b); Barton, at para. 122). Finally, in view of our conclusion that the Cassidy test is met here, we need not comment on Martin J.A.’s statement of the test for substituted convictions, found at para. 91 of his reasons. With respect to the allegations of bias raised by A.E., we are all of the view that nothing asserted by him called into any question the integrity and impartiality of the Court of Appeal of Alberta in this case. The appellant A.E. also asks this Court to stay his conviction for sexual assault under Kienapple v. The Queen, [1975] 1 S.C.R. 729, on the basis that it is a lesser included count within his conviction for sexual assault with a weapon. We would not give effect to this submission. In these circumstances, the offences involve different subsets of facts and address different forms of harm (see R. v. M. (R.), 2020 ONCA 231, 150 O.R. (3d) 369, at para. 52). Specifically, the charge of sexual assault with a weapon addresses the injuries that the complainant suffered as a result of the use of the toothbrush, as well as the elevated risk that it brought about. We note that the Court of Appeal of Alberta addressed other issues in obiter, including: T.C.F.’s liability for sexual assault with a weapon; whether surreptitious recording constitutes fraud vitiating consent; and whether consent to sexual activity can be given in situations involving intentional bodily harm. In the circumstances, it is unnecessary for us to address these issues. In the result, the appeals from conviction are dismissed and the matters are remitted to the Court of Queen’s Bench for sentencing.”

Criminal Law: Sexual Assault; Stereotypical Inferences

R. v. D.R., 2022 NLCA 2; 2022 SCC 50 (40039)

Rowe J.: “This is an appeal as of right from a decision of the Newfoundland and Labrador Court of Appeal setting aside acquittals and ordering a new trial in a case of sexual assault, among other offences. The accused is the grandfather of the complainant, who was between 7 and 10 at the time of the alleged offences. There was evidence that the complainant was happy to see the accused and exhibited no avoidant behaviour toward him. From this, the trial judge inferred that the complainant had a “strong and normal” relationship with the accused, which caused the trial judge to doubt the credibility of her testimony regarding the alleged offences. Writing for the majority, Hoegg J.A. observed that the trial judge “rested his reasonable doubt on his conclusion . . . that their strong and normal relationship meant that her grandfather could not have been sexually abusing her” (para. 34 (CanLII)). We agree with the majority of the Court of Appeal that this inference by the trial judge was rooted in stereotypical reasoning, rather than the entirety of the evidence, and that this constituted an error of law. While the trial judge set out other lines of reasoning relating to the complainant’s credibility, his reliance on stereotypical inferences undermines his assessment of her credibility and, thus, his verdict. The majority of the Court of Appeal decided, correctly in the circumstances, that the trial judge’s stereotypical reasoning had a material effect on the acquittal of the accused (see para. 61 and the heading for that paragraph). Accordingly, we would dismiss the appeal and order a new trial.”

Criminal Law: Spontaneous Utterances Re Identification

R. v. Badger, 2021 SKCA 118; 2022 SCC 20 (39844)

Moldaver J.: “A majority of the Court would dismiss the appeal, substantially for the reasons of the majority of the Saskatchewan Court of Appeal. Justices Karakatsanis and Martin would allow the appeal, substantially for the reasons of the dissenting judge of the Court of Appeal.”

Leaves to Appeal Granted

Aboriginal Law: Treaty Rights Interpretation

Canada (Attorney General), et al. v. Restoule, et. al., 2021 ONCA 779 (40024)

In 1850, the Respondents, the Anishinaabe of the northern shores of Lakes Huron and Superior, entered into two treaties with the Crown: the Robinson Huron Treaty and the Robinson Superior Treaty (“Treaties”). The Treaties provided for cessation of a vast territory in northern Ontario, and for payment, in perpetuity, of an annuity to the Anishinaabe. The initial agreed upon sum was paid and an Order in Council declared them ratified and confirmed. In 1875, the annuity was increased to $4 (₤1) per person, and, in 1877, the Huron and Superior chiefs petitioned successfully for arrears on the increase since the conditions for increasing the annuity had been met long before the increase. The annuity has not changed since. The Huron Respondents initiated an action against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the annuity provisions in the Robinson Huron Treaty; the Superior Respondents made the same claims under the Robinson Superior Treaty. The actions were tried together, split into three stages. At Stage One, the Treaties were interpreted, at Stage Two, the defences of Crown immunity and limitations were addressed, and, at Stage Three, the remaining issues (inter alia, damages and the allocation of liability) will be addressed. This relates to Stages One and Two; Stage Three has yet to be heard. At Stage One, the trial judge interpreted the Treaties as requiring the Crown to increase the annuity when the Crown’s net resource based revenues from the treaty territories are such the increase would not cause the Crown to suffer a loss. The annuity was to correspond to “fair share” of those revenues, which stood to be determined in consultation with First Nations parties. The Crown was subject to duties flowing from honour of Crown and fiduciary duty, and a duty of diligent implementation applied to the augmentation promise. At Stage Two, she rejected the Crown’s claims as to limitations and Crown immunity. A five member panel of the Ont. C.A. allowed the appeal of Stage One order in part (inter alia, the references to a “fair share” and to fiduciary duty were removed from the order, and the costs award to Huron parties was amended). The appeal of the Stage Two decision was dismissed.

Civil Litigation: Anti-SLAPP

Hansman v. Neufeld, 2021 BCCA 222 (39796)

The Applicant was a teacher and the president of the British Columbia Teacher’s Federation. Mr. Neufeld was an elected public school board trustee in British Columbia. The Minister of Education published resources for teachers for the promotion of inclusive environments, policies and procedures in schools regarding sexual orientation and gender identity (“SOGI 123”). In 2017, Mr. Neufeld made negative comments and criticisms about the implementation of the SOGI 123 materials, which were posted on his Facebook page. His comments attracted significant criticism and media attention. Mr. Hansman was interviewed about Mr. Neufeld’s post. Mr. Neufeld alleged Mr. Hansman defamed him in that interview, and in subsequent statements broadcasted and published in the press and online. Mr. Neufeld filed a defamation action against Mr. Hansman, identifying 11 specific publications in which Mr. Hansman allegedly made defamatory remarks Mr. Neufeld promoted hatred, was discriminatory against gay and transgender students, acted with malice, and presented a safety risk to students. Mr. Hansman applied to have Mr. Neufeld’s application dismissed pursuant to s. 4 of British Columbia’s Protection of Public Participation Act. The application judge granted the motion and dismissed the defamation action. This decision was overturned on appeal.

Civil Litigation: Foreign Judgment Enforcement

Eilers v. Lanfer, et al., 2021 BCCA 241 (39848)

The B.C.S.C. dismissed an application seeking an order to register and enforce a judgment granted by a court in Germany that required Ms. Eilers to transfer ownership of real property in Kelowna and to consent to a change in registration of title. The B.C.C.A. allowed an appeal and held the German judgment should be registered and enforced.

Constitutional Law: Division of Powers; Cannabis

Murray-Hall v. Québec (Attorney General), 2021 QCCA 1325 (39906)

Following the enactment in 2018 of the Cannabis Act by the federal government and the Cannabis Regulation Act by the province of Québec, the Applicant, Janick Murray Hall, brought an action in the Québec Superior Court challenging the constitutional validity of ss. 5 and 10 of the Cannabis Regulation Act, which prohibits the possession of cannabis plants and the cultivation of cannabis for personal purposes in Québec. He sought a declaration those provisions are ultra vires the provincial legislature or, in the alternative, they are of no force or effect because of the application of the doctrine of federal paramountcy. The Québec Superior Court allowed the Applicant’s application and declared ss. 5 and 10 of the Cannabis Regulation Act constitutionally invalid. The Qué. C.A. was of the view the provisions are constitutionally valid and operative. It unanimously allowed the appeal of the Attorney General of Québec and set aside the trial judgment.

Constitutional/Aboriginal Law: s. 15; Residency

Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5 (39856)

The Applicant, Cindy Dickson, was a member of the Respondent Vuntut Gwitchin First Nation (“VGFN”) in the Yukon; she resided in Whitehorse, for family medical reasons and other socio‑economic reasons. Ms. Dickson sought to stand for election to the Council of the VGFN. The VGFN constitution specified any Councillor must reside on Settlement Land, approximately 800 km away (the “residency requirement”); it also stated any successful candidate for Chief or Councillor who does not already reside on Settlement Land must relocate there within 14 days of election day. Given Ms. Dickson’s unwillingness to move, the VGFN rejected Ms. Dickson’s candidacy. Ms. Dickson sought a declaration in court the residency requirement breached her right to equality protected under s. 15(1) of the Charter. The chambers judge issued several declarations, concluding while the Charter applies to the VGFN and to the residency requirement in the VGFN constitution, the residency requirement itself does not infringe s. 15(1). However, the time limit for relocation — “within 14 days” — infringed s.15(1), and should be declared to be of no force and effect (the declaration was suspended for 18 months). Alternatively, if this was incorrect and the residency requirement does infringe s. 15(1), the judge concluded that s. 25 of the Charter would apply to “shield” the residency requirement (still without the time limit) from review. The YK C.A. allowed both Ms. Dickson’s appeal and the VGFN’s cross‑appeal. It found the chambers judge erred in presumptively concluding there was no s. 15(1) infringement and severance of the time limit could save the requirement; rather, it concluded, subject to any justification under s. 1 of the Charter, the residency requirement as a whole (with or without the time limit) does infringe s. 15(1). However, the YK C.A. also concluded, if there were an unjustified breach of s. 15(1), s. 25 of the Charter would shield the residency requirement from challenge. A majority of the YK C.A. issued a number of declarations to that effect.

Constitutional Law: Language Rights

A.B., et al. v Northwest Territories (Minister of Education, Culture and Employment) et al., 2021 NWTCA 8 (39915)

In 2018 and 2019, the Minister of Education, Culture and Employment of the Northwest Territories denied six applications for admission to French language schools made by non-rights holder parents. The ineligibility of their children was assessed according to the criteria established in the Ministerial Directive – Enrolment of Students in French First Language Education Programs. Because none of the criteria in the Directive applied in the circumstances, the parents asked the Minister to exercise her residual discretion to authorize the admission of the six children concerned, which was denied. The non-rights holder parents and the school board applied for J.R. of the Minister’s decisions. In two judgments, the Northwest Territories Supreme Court set aside the Minister’s decisions on the ground there had been no proportionate balancing of the protections guaranteed by s. 23 of the Charter and the government’s interests. The majority of the N.W.T. C.A. allowed the Minister’s appeals and restored her decisions. It found the chambers judge’s reasoning on constitutional values had proceeded on the mistaken assumption the case involved constitutional rights. The families in question did not qualify under s. 23 and had no other legal or statutory right or expectation to attend the schools.

Corporations: Share Sale

Ponce, et al. v. Société d’investissements Rhéaume ltée, et al., 2021 QCCA 1363 (39931)

The Applicants, Mr. Ponce and Mr. Riopel, served as presidents of three companies grouped together under the name “Le Groupe Excellence” controlled by the Respondent shareholders Mr. Rhéaume and Mr. Beaulne. Rhéaume and Beaulne founded Excellence in the late 1970’s, but their working relationship ultimately broke down due to a revenue share dispute. A few years later, the Applicants bought the Respondents’ interests in Excellence. At the time, the Applicants were also negotiating the sale of Excellence to a third party, Industrial Alliance. They did not make this fact known to the Respondents. Shortly after acquiring the shares of Rhéaume and Beaulne, the Applicants sold their interests in Excellence for a significant profit. The Respondents allege the sale of Excellence by the Applicants stripped them of a business opportunity. They claimed joint and several damages against the Applicants. The Qué. Superior Court granted the Respondents’ action in part. The court determined the Applicants used their roles to obtain information for their own benefit, and breached duties of honesty, loyalty and integrity owing to the Rhéaume and Beaulne shareholders. The Qué. C.A. dismissed the Applicants’ appeal. Although it found the first instance judge made an error in determining the duties of honesty and loyalty were owed to the shareholders, as opposed to the corporation, this error was not determinative since the judge also relied on the obligation of good faith and the duty to inform to conclude the Applicants were at fault towards the Respondents.

Criminal Law: Child Luring; Entrapment

Dare v. R., 2021 ONCA 327 (39871)

The Applicant, Temitope Dare, was arrested and 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 “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 and were arrested and charged on their arrival. A jury found the Applicant guilty of all three offences. The trial judge stayed the convictions under ss. 172.1(1)(b) (child luring under 16) and 286.1(2) (communicating to obtain sexual services from a minor), pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. The trial judge then dismissed the Applicant’s application for a stay of proceedings based on entrapment. The Applicant’s appeal from the convictions and the ruling on entrapment was dismissed.

Criminal Law: Child Luring; Mandatory Minimums

R. v. H.V., 2022 QCCA 16 (40093)

There is a publication ban in this case, in the context of child luring sentencing.

Criminal Law: DUI

R. v. McColman, 2021 ONCA 382 (39826)

The Respondent was convicted of impaired and over 80. The Respondent had exited the public highway and was on private property when the police officer approached him. The officer testified they did not see any signs of impairment prior to stopping the Respondent and there was nothing unusual about his driving. The officer explained they were exercising their authority to conduct random sobriety checks pursuant to s. 48(1) of the Highway Traffic Act. At the stop, the officer spoke to the Respondent, observed obvious signs of impairment, and arrested him for impaired driving. The Respondent was convicted. His summary conviction appeal was allowed; the conviction was set aside and an acquittal was entered. A majority of the Ont. C.A. dismissed the Crown’s appeal.

Criminal Law: DUI; Sentencing

Basque v. R., 2021 NBCA 50 (39997)

Ms. Basque was charged with operating a motor vehicle with a blood alcohol concentration exceeding eighty milligrams of alcohol in one hundred millilitres of blood. Ms. Basque was released from custody on an undertaking, a condition of which was she would not operate a motor vehicle. Ms. Basque spent the 21 months that elapsed between her initial appearance and sentencing under a driving prohibition as a condition of her release. The Provincial Court sentencing judge imposed a $1K fine and decided a fit punishment in the circumstances was the one year minimum driving prohibition. He then addressed whether he could take into account her 21-month presentence driving prohibition. Deciding he could, Ms. Basque was not subjected to any further driving prohibition. The Crown’s appeal of that decision was dismissed by the summary conviction appeal judge. A majority of the N.B. C.A. granted leave to appeal, allowed the appeal, varied the Provincial Court decision to include a one year driving prohibition, and stayed the execution of prohibition order.

Criminal Law: Luring; Entrapment

Jaffer v. R., 2021 ONCA 325 (39676)

A jury found the Applicant, Muhammad Abbas Jaffer, guilty of the two counts he was charged with that went to trial: (1) child luring under 18 (s. 172.1(2) of the Criminal Code, and communicating to obtain for consideration the sexual services of a person under 18 (s. 212(4) (now s. 286.1(2))). 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 “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 and were arrested and charged on their arrival. After the Applicant was found guilty, the sentencing judge stayed the conviction on what is now s. 286.1(2) pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. The Applicant’s application for a stay of proceedings based on entrapment was dismissed. The Applicant’s appeal from the dismissal of the entrapment application and the sentence appeal were also unanimously dismissed.

Criminal Law: Publication Bans

La Presse inc. v. Silva, 2022 QCCA 1006 (40175)

Certain information is not available to the public, in the context of a media application to lift a prohibition re publication/broadcasting/transmission.

Criminal Law: Right to Counsel

Brunelle, et al. v. R., 2021 QCCA 1317 (39917)

The Applicants, who were charged with various offences related to the large‑scale trafficking of cannabis, were arrested at the same time in more than one judicial district. They were divided into four different groups for separate trials. The Applicants in the first group brought a motion for a stay of proceedings for abuse of process based on a series of infringements of the rights of the accused, and primarily their right to counsel. On August 27, 2018, Dumas J. of the Qué. Superior Court entered a stay of proceedings on the ground the police conduct had undermined the integrity of the justice system. He noted the infringement of the right to counsel was the most serious infringement. On May 7, 2019, at a hearing before Dumas J., the parties agreed the decision rendered concerning group 1 would apply to the accused in the other groups. The proceedings against all the other accused were therefore stayed. The Qué. C.A. allowed the appeals, set aside the judgments of August 27, 2018 and May 7, 2019 staying the court proceedings, and ordered a new trial. It found the trial judge necessarily had to assess the situation of each accused individually, since a remedy could be granted only to a person whose own constitutional rights had been infringed. That error in itself justified a new hearing.

Criminal Law: Sexual Assault

R. v. K., 2022 BCCA 18 (40095)

There is a publication ban in this case, in the context of a sexual assault while the complainant was intoxicated. At issue is: (1) whether credibility-based sexual assault prosecutions involving intoxication or other reliability concerns attract heightened evidentiary requirements; and (2) what principles govern when distinguishing between legitimate inferences and speculation.

Criminal Law: Sexual Interference; Child Luring; Mandatory Minimums

R. v. M.B.M., 2021 QCCA 1285 (39935)

There is a publication ban in this case, in the context of a charge of sexual interference and child luring, re mandatory minimums.

Criminal Law: Sexual Offences

R.K.K. v. R., 2022 BCCA 17 (40085)

There is a publication ban in this case, in the context of convictions for sexual assault and extortion.

Family Law: Property Division

Anderson v. Anderson, 2021 SKCA 117 (39884)

The parties were married for three years. Both parties came into the marriage with considerable assets, including houses, vehicles, items of personal property, RRSPs, savings and pensions. Shortly after the parties separated, the Respondent invited the Applicant to a reconciliation meeting with mutual friends. At the end of the meeting, the Respondent presented the Applicant with a separation agreement she had drawn up. Neither party received independent legal advice, but they both signed the agreement. The agreement did not deal with all the family property issues as the family home was not specifically dealt with in a final way. Shortly thereafter, the Respondent’s counsel drafted a formal interspousal agreement but the Applicant refused to sign it or engage in any discussion with the Respondent. The Respondent issued a petition seeking a divorce and costs in December 2015 and the Applicant issued a counter petition in May 2017 claiming for the first time a family property division as well as occupational rent. The trial judge ordered the Respondent pay to the Applicant the sum of $62,646.98 ($70,646.98 equalization of non-taxable assets less the $8K equitable factor regarding the agreement), and either an RRSP rollover of $37,089.69 or a further cash payment of an additional $27,817.27. The Sask. C.A. set aside the trial judgment and directed the division of the family property should be made in accordance with the December 2015 values. The Applicant was ordered to pay the sum of $4,914.95 to the Respondent to equalize the distribution of their family property.

Freedom of Information: Disclosure

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) et al., 2022 ONCA 74 (40078)

There is a Sealing Order in this case; certain information is not available to the public, in the context of a journalist’s freedom-of-information request.

Immigration: Inadmissibility

Mason v. Canada (Citizenship and Immigration), 2021 FCA 156 (39855)

Section 34(1)(e) of Immigration and Refugee Protection Act (“IRPA”) provided permanent residents or foreign nationals are “inadmissible on security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The Minister of Public Safety alleged both Applicants were foreign nationals who were inadmissible under s. 34(1)(e). The issue before the Immigration Board and the Immigration Appeal Division was whether s. 34(1)(e) applied only where there is a connection to national security. Both agreed with the Minister it did not. In their view, s. 34(1)(e) operates whether or not there is a connection to national security. On J.R., the Fed. Court quashed the decisions in the two cases. Both cases were heard together at the Fed. C.A. It allowed the appeals, set aside the judgments of the Fed. Court and dismissed the applications for J.R. It found the administrative interpretation of s. 34(1)(e) was reasonable and answered the following certified question: Q.: Is it reasonable to interpret para. 34(1)(e) of the Immigration and Refugee Protection Act in a manner that does not require proof of conduct that has a nexus with “national security” or the “security of Canada”? A. Yes.

Labour Law: Freedom of Association

Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, et al., 2022 QCCA 180 (40123)

The Respondent, the Association des cadres de la Société des casinos du Québec (Association), was formed in 1997 under the Professional Syndicates Act. Seventy percent of the operations supervisors assigned to the gaming tables at Casino de Montréal are members of the Association. The supervisors are the fifth level of management and are front-line managers at the Société des casinos du Québec inc. (Société), the employer and the Applicant/intervener in the applications for leave to appeal filed. The Société is a subsidiary of the Société des loteries du Québec responsible for four casinos, including Casino de Montréal. Given each casino’s operations are divided into three areas — gaming tables, slot machines and poker rooms — the Association’s members make up a majority of the supervisors in all three areas combined. Since its creation, the Association’s goal has been to secure recognition from the employer so it can represent the supervisors and negotiate their conditions of employment. The Association filed a petition for certification with the Commission des relations du travail (which in 2016 became the Administrative Labour Tribunal (ALT)) under ss. 25 et seq. of the Labour Code. The filing of that petition arose out of numerous failed attempts by the parties to negotiate changes to a memorandum of understanding entered into in 2001. In the petition, the Association also asked for the exclusion of managers from the definition of “employee” in s. 1(l)(1) of the Labour Code be declared constitutionally inoperable against the Association and its members on the ground the provision infringed the freedom of association guaranteed in s. 2(d) of the Canadian Charter and s. 3 of the Québec Charter. The ALT declared s. 1(l)(1) infringed the freedom of association guaranteed by the two charters to the persons covered by the Association’s petition for certification and that the section was of no force or effect in the context of the petition. The Superior Court allowed JR filed by the Société, and the Qué. C.A. allowed the Association’s appeal.

Media/Criminal Law: Publication Bans

Canadian Broadcasting Corporation, et al. v. Coban et al., 2022 BCSC (40223)

A ban on publication pursuant to s. 648(1) of the Criminal Code was imposed on all pre-trial applications in the trial of an accused as well as the duration of the trial proceedings before a jury. A consortium of media outlets applied to have the ban clarified or declared applicable after the jury was empanelled. The B.C.S.C. dismissed the application, with no right to appeal to the B.C.C.A.

Securities: Pump & Dump; Jurisdiction

Langford-Sharp, et al. v. Autorité des marchés financiers, et al., 2021 QCCA 1364 (39920)

The Respondent (AMF) brought an action before the Québec Financial Markets Administrative Tribunal (FMAT) alleging the Applicants participated in a transnational pump and dump scheme by improperly influencing or manipulating the price of a stock in contravention of the Québec Securities Act. According to the AMF, the Applicants, who are residents of B.C., made financial transactions through offshore companies incorporated in several countries with bank accounts in Europe. AMF alleged they acted in concert to acquire the shares of a Nevada company (Solo), give it a legitimate face and promote its business for the purpose of fraudulently increasing the value of its shares and then selling them for a profit, for distribution among themselves. Solo’s shares are traded on an over‑the‑counter market in New York. The AMF alleged that at all material times, Solo was under the direction of a Québec resident and was a reporting issuer in Québec with a business address in Montreal. It also alleged the misleading press releases and promotional materials, a portion of which originated in Montreal, were accessible to Québec residents and approximately fifteen investors in Québec lost a total of $5K as a result of the activities. AMF’s action sought to have the FMAT order the Applicants to cease any activity in respect of a transaction in securities; prohibit them from acting as directors or officers of an issuer, dealer, adviser or investment fund manager for five years; and impose administrative penalties on them, all pursuant to ss. 265, 273.3, 195.2, 199.1(1) and 273.1 of the Securities Act. The Applicants brought preliminary motions for declinatory exceptions arguing the FMAT was without jurisdiction. The FMAT denied the Applicants’ motions and confirmed its jurisdiction to hear the action: 2017 QCTMF 114 (CanLII). The Qué. Superior Court dismissed the application for J.R., and the Qué. C.A. dismissed the appeal.

Tax: Stock Option Donations

Groseillers v. Agence du revenu du Québec, 2021 QCCA 906 (39879)

The Applicants, Yves Des Groseillers and BMTC Group Inc., appealed assessments made by the Respondent, the Agence du revenu du Québec (“ARQ”). In the course of tax audits, the ARQ added amounts to Mr. Des Groseillers’s taxable income as additional employment income. Those amounts represented the total value of the stock options donated by Mr. Des Groseillers to registered charities, for which he had claimed tax credits. The ARQ therefore added the amounts to BMTC’s payroll as well. The Court of Québec allowed Mr. Des Groseillers’s application and vacated the notices of assessment. It allowed BMTC’s application in part and referred the notices of assessment to the Minister for reconsideration and reassessment. In the court’s view, although the transactions were subject to the special rules on the issuance of securities to employees, it would find Mr. Des Groseillers had not received any benefit, because the evidence showed he had not received any consideration for the donation and he had not paid anything to acquire the options. The ARQ could not rely on the presumption set out in another division of the statute to the effect the disposition of property is deemed to be made at its fair market value, because the special rules form a complete code. The Qué. C.A. allowed the ARQ’s appeal, set aside the Court of Québec’s judgment and rendered the decision that ought to have been rendered, it dismissed the appeals brought by Mr. Des Groseillers and BMTC from the notices of assessment. It held the special rules do not exclude the application of the presumption.

Tax: Unused Non-Capital Losses

Deans Knight Income Corporation v. R., 2021 FCA 160 (39869)

Prior to the transactions at issue, the Applicant, Deans Knight Income Corporation was a Canadian public corporation that had approximately $90M of unused non-capital losses and other deductions. It sought to realize the value of these tax attributes and entered into an agreement with a corporation that had expertise in arranging such transactions. From 2009 to 2012, the Applicant deducted a majority of its tax attributes to reduce its tax liability. Following the issuance of reassessments to deny the deductions, the Applicant successfully appealed to the Tax Court, but the decision was overturned by the Fed. C.A.