Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.
Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.
- R. v. Johnston is out this Friday. At issue in this Crown appeal is when an evidentiary hearing should be held for an application for a stay of proceedings for abuse of process.
- On April 13, 2023, the SCC released its decision in R. v. Breault, 2023 SCC 9. The SCC unanimously dismissed the Crown’s appeal. Police must have a breathalyzer with them when demanding that a detained driver provide a breath sample.
- On April 14, 2023, the SCC released Murray‑Hall v. Quebec (Attorney General), 2023 SCC 10. The SCC unanimously dismissed the appeal. Quebec laws restricting possession and growing of cannabis were constitutional and properly within provincial jurisdiction.
Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.
Stay of Proceedings for Abuse of Process
Appeal from R. v. Johnston, 2021 BCCA 34
View the SCC webcast & read the factums
What Happened?
At trial: The respondents were found guilty of six counts of first degree murder and one count of conspiracy to commit murder. The respondents filed applications for stays of proceedings pursuant to s. 24(1) of the Charter, alleging abuses of process due to police misconduct during the investigation, and also because of their conditions while in pre-trial custody. The Crown applied for summary dismissal of the applications. Finding that the serious nature of the offences committed by the respondents could not justify a stay of proceedings, the trial judge allowed the Crown’s applications for summary dismissal, dismissed the respondents’ applications for stays of proceedings, and entered convictions.
At the Court of Appeal: The BCCA allowed the respondents’ appeal in part, quashed the convictions but affirmed the verdicts of guilt, and ordered that the matter be remitted to the trial court for an evidentiary hearing on the respondents’ applications for a stay of proceedings for abuse of process. An evidentiary hearing was necessary to resolve factual controversies about the extent of police misconduct. Having found that the alleged abuses of process risked undermining the integrity of the judicial process and that the only acceptable remedy was a stay of proceedings, the judge could not properly balance the interests in favour of a stay against society’s interests in entering the convictions without resolving those controversies.
What Was Argued at the SCC?
The Crown emphasized the critical role of the trial judge in controlling and managing the conduct of trials. Part of that role is ruling on summary dismissal applications such as this one, known as Vukelich applications. The trial judge can decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. The Crown says the BCCA decision undermines Vukelich applications.
The respondents focused on the police misconduct. Here the police exploited the trust of female witnesses in order to have sex with them. The police also directed prison authorities to subject to the respondents to treatment akin to torture. Several officers were charged criminally and plead guilty in relation to the misconduct. They say the trial judge erred by not resolving factual controversies and applied an elevated threshold for Vukelich applications.
What Else Should You Know Before Making a Prediction?
Based on the egregious facts regarding the police misconduct alone, I’m leaning towards appeal dismissed.
Last Week at the SCC
On April 14, 2023, the SCC released Murray‑Hall v. Quebec (Attorney General), 2023 SCC 10. The SCC unanimously dismissed the appeal.
Held: Quebec laws restricting possession and growing of cannabis were constitutional and properly within provincial jurisdiction.
Key Points:
- The partial decriminalization of cannabis by Parliament opened the door to provincial legislative action.
- In prohibiting the possession and cultivation at home of cannabis plants, the Quebec legislature exercised the power conferred on it by s. 92(15) to enact penal measures in order to enforce an otherwise valid law.
- The Quebec laws help to ensure the effectiveness of the state monopoly and thus to protect the health and security of the public. They are related to provincial heads of power because provincial legislative action in the field of public health is grounded primarily in broad and plenary jurisdiction over property and civil rights (s. 92(13)) and residual jurisdiction over matters of a merely local or private nature in the province (s. 92(16)).
- 90% correctly predicted the result.
On April 13, 2023, the SCC released its decision in R. v. Breault, 2023 SCC 9. The SCC unanimously dismissed the Crown’s appeal.
Held: Police must have a breathalyzer with them when demanding that a detained driver provide a breath sample.
Key Points:
- A person cannot be criminally liable for refusing to comply with a demand with which it was not actually possible to comply because of the absence of an breathalyzer at the time the demand was made.
- A driver is required to give a breath sample “forthwith”. That term should be given its ordinary meaning and be interpreted in light of the fact that the driver cannot consult counsel before complying with the demand.
- The existence of unusual circumstances may justify a flexible interpretation of the immediacy requirement, but the absence of a breathalyzer at the scene at the time the demand is made is not in itself an unusual circumstance.
- 38% correctly predicted the result.
-Tom Slade
Thanks for reading. If you liked today’s brief, we’d love for you to share it with a friend or you can sign up to receive it as an email: https://mailchi.mp/37b20ffd0198/fantasycourts