Supreme Court of Canada 2023 Year-in-Review

This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2023, and includes:

appeal judgments
oral judgments
leaves to appeal granted.

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/ Immigration: Standard of Review; Inadmissibility

Mason v. Canada (Citizenship and Immigration), 2021 FCA 156; 2023 SCC 21 (39855)

The statutory provision at issue, s. 34(1)(e) of the Immigration and Refugee Protection Act (“IRPA”), provides that permanent residents and foreign nationals are inadmissible to Canada on “security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The key point of disagreement among the administrative decision makers and courts below is whether the “acts of violence” listed as “security grounds” in s. 34(1)(e) require a link to national security or the security of Canada, or whether s. 34(1)(e) applies to acts of violence more broadly even without such a link. In these two cases, the relevant legal constraints point overwhelmingly to a single reasonable interpretation of s. 34(1)(e) — a person can be found inadmissible under s. 34(1)(e) only if they engage in acts of violence with a nexus to national security or the security of Canada. The standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that these appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal under s. 74(d) of the IRPA.

Civil Litigation: Anti-SLAPP

Hansman v. Neufeld, 2021 BCCA 222; 2023 SCC 14 (39796)

Defamation suits are a way to vindicate an individual’s personal or professional reputation in the face of attack, but can have the undesirable effect of suppressing the open debate that is the cornerstone of a free and democratic society. For this reason, certain provincial legislatures have targeted strategic lawsuits against public participation (SLAPPs), or actions that disproportionately suppress free expression on matters of public interest. Mr. Neufeld argued that he only criticized a policy; he never expressed hatred towards the transgender community, nor did his words create an unsafe school environment for transgender students. But his submissions miss the mark. Mr. Neufeld’s right to criticize a government initiative is not in dispute. Rather, the central issue is whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability. He did. Even if Mr. Neufeld had discharged his burden as to the fair comment defence, the chambers judge was entitled to dismiss the defamation claim because the public interest in protecting Mr. Hansman’s expression is not outweighed by the limited harm to Mr. Neufeld. Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements, and there is a substantial public interest in protecting his counter-speech. Mr. Hansman spoke out to counter expression that he and others perceived to be discriminatory and harmful towards transgender and other 2SLGBTQ+ youth — groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity. Not only does protecting Mr. Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value

Commercial Law: Duty To Inform

Ponce v. Société d’investissements Rhéaume ltée, 2021 QCCA 1363; 2023 SCC 25 (39931)

Two presidents of a group of three companies in the insurance industry learned that a major company was interested in acquiring the group. Rather than revealing this to the group’s majority shareholders, the presidents decided to buy the whole of the shareholders’ interests themselves in order to resell them to the company for a substantial profit. Before the resale, the presidents and the purchaser company entered into an undertaking of confidentiality, which prevented the company from dealing directly with the group’s majority shareholders. The Québec Superior Court ruled in the shareholders’ favour and ordered the presidents solidarily to pay them $11,884,743, an amount equal to the profits earned by the presidents on the resale. The court found that, under both the Civil Code of Québec and the Canada Business Corporations Act, the presidents, in their capacity as directors, owed duties of honesty, loyalty, prudence and diligence to the group. The Court of Appeal affirmed the trial judgment and upheld the remedy awarded by the trial judge. However, it was of the view that the trial judge erred in finding that the duties of honesty and loyalty provided for in the Civil Code of Québec and the Canada Business Corporations Act could be extended to the shareholders; the court held that the presidents’ conduct fell within the three criteria set out in Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554, and that the presidents breached the obligation of contractual good faith and the obligation to inform they owed to the shareholders. In dismissing the appeal, the S.C.C. held that each of the three criteria set out in Bail (paras. 87‑91) are satisfied. However, disgorgement of profits without regard to injury is not an appropriate remedy in this case; the sanction requested is to compensate for a wrong; the demand is not simply for restitution of profits, much less for disgorgement of profits for a confiscatory or punitive purpose, a remedy that would potentially deviate from the general law of civil liability. It is thus appropriate to assess, on the basis of the respondents’ alternative argument, the quantum of the damages to be awarded to them to compensate for the loss they claim to have suffered. Because the presumption in Baxter has not been rebutted, the damages owed to the respondents are equivalent to the difference between the sale price received by the appellants on the resale and the price received by the respondents on the initial sale to the appellants.

Constitutional Law: Division of Powers

Murray-Hall v. Québec (Attorney General), 2021 QCCA 1325; 2023 SCC 10 (39906)

The pith and substance of the impugned provisions is to ensure the effectiveness of the Québec monopoly in order to protect the health and security of the public, and of young persons in particular, from cannabis harm. It follows that the prohibitions against the possession of cannabis plants and their cultivation at home set out in ss. 5 and 10 of the provincial Act are a means of serving the public health and security objectives pursued by that Act. In short, when viewed together with the other provisions of the provincial Act, ss. 5 and 10 do not have the separate and independent objective of prohibiting the possession and cultivation of cannabis plants for personal purposes. The prohibitions themselves must be seen as one means among a broad range of measures that the Québec legislature has deemed necessary in order to achieve the provincial Act’s public health and security objectives. In particular, the prohibitions act as strong incentives for the integration of “consumers into . . . the legal market” that ensures, among other things, control of the quality of the products offered, education on the risks of cannabis consumption and compliance with rules on the minimum age for purchasing cannabis. The impugned provisions do not represent a colourable attempt to re‑enact the criminal law prohibitions repealed by Parliament. This appeal is a textbook case for the application of the double aspect doctrine. The regulation of the use of drugs, including cannabis, has both federal and provincial aspects, which makes it conceivable that laws enacted by both levels of government will apply concurrently. This matter has a double aspect, since it may be addressed from two different perspectives: (1) that of the criminal law (under s. 91(27)), by suppressing some “evil” or injurious or undesirable effect upon the public; and (2) that of health or trade (under s. 92(13) and (16)), by regulating, among other things, the conditions of production, distribution and sale of the substance. Sections 5 and 10 of the provincial Act regulate cannabis use from this second, normative perspective and are therefore within provincial jurisdiction.

Constitutional Law/Environmental Law: Division of Powers

Reference re Impact Assessment Act, 2022 ABCA 165; 2023 SCC 23 (40195)

The complex environmental legislative scheme at issue in this appeal is unconstitutional in part. The scheme is essentially two schemes in one. First, a discrete portion of the scheme — contained in ss. 81 to 91 of the Impact Assessment Act — deals with projects carried out or financed by federal authorities on federal lands or outside Canada. In pith and substance, this portion of the scheme directs the manner in which federal authorities assess the significant adverse environmental effects that such projects may have. This portion of the scheme is clearly intra vires. But the balance of the scheme — made up of the IAA’s remaining provisions and the Regulations — deals with “designated projects” as defined in the IAA. The pith and substance of this designated projects scheme is to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts. Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme. This scheme is ultra vires for two overarching reasons: it is not in pith and substance directed at regulating “effects within federal jurisdiction” as defined in the IAA because these effects do not drive the scheme’s decision-making functions; the defined term “effects within federal jurisdiction” aligns with federal legislative jurisdiction. The overbreadth of these effects exacerbates the constitutional frailties of the scheme’s decision-making functions. The double aspect doctrine must be applied with caution. First, not all fact situations have a double aspect, and each fact situation must be identified with precision. Environmental assessment of physical activities may or may not have a double aspect in relation to a specific project. Second, the fact that environmental assessment of physical activities may have a double aspect — with some elements falling within the legislative authority of each level of government — does not mean that it is an area of concurrent jurisdiction. If a fact situation can be regulated from both a federal perspective and a provincial perspective, it follows that each level of government can only enact laws which, in pith and substance, fall under its respective jurisdiction. In other words, both levels of government have the exclusive power to legislate within their respective jurisdictions, even if by doing so they both regulate the same fact situation.

Criminal Law: Child Luring; Mandatory Minimums

R. v. Marchand, 2021 QCCA 1285; 2022 QCCA 16; 2023 SCC 26 (39935)(40093)

R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the S.C.C. articulates the various serious and potentially life-long consequences associated with sexual violence against children; the distinct harms of the child luring offence and its full gravity animates the governing sentencing principles and informs their constitutional status. In Mr. Marchand’s case, after applying the correct sentencing principles, his sentence is increased from five months to one year imprisonment, served consecutively, not concurrently, to the other offence for which he was sentenced. In H.V.’s matter, the fitness of the sentence was not challenged in the S.C.C. A thorough analysis reveals that these mandatory minimum sentences infringe the Charter’s s. 12 protection against cruel and unusual punishment. The mandatory periods of incarceration apply to such an exceptionally wide scope of conduct that the result is grossly disproportionate punishments in reasonably foreseeable scenarios. Invalidating the mandatory minimums does not mean that child luring is a less serious offence. Based on the distinct and insidious psychological damage luring generates, in some cases the appropriate penalty for child luring will be imprisonment for a period equal to or longer than that set out in the unconstitutional mandatory minimum sentences.

Criminal Law: Delay

R. v. Hanan, 2022 ONCA 229; 2023 SCC 12 (40097)

The trial judge erred in holding that a transitional exceptional circumstance applied, and the majority of the Court of Appeal erred in upholding his decision. First, the parties could not have reasonably relied upon the pre-Jordan state of the law after Jordan had been decided in July 2016. Nor did the parties actually rely upon the pre‑Jordan state of the law, as they consciously scheduled a trial within the Jordan ceiling. Rather, as the S.C.C. held in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, the focus for delay that accrues after Jordan was decided “should instead be on the extent to which the parties and the courts had sufficient time to adapt” (para. 71). As noted by Nordheimer J.A. in dissent, “only a very small portion of the delay in this case preceded the decision in Jordan and most, if not all, of that delay has been laid at the feet of the defence” (2022 ONCA 229, 161 O.R. (3d). The trial judge erred in concluding that the delay in this case was “justified based on the parties’ reasonable reliance on the law as it previously existed” (para. 278). Second, the delay beyond the ceiling was due not to a lack of time for the system to ameliorate ingrained institutional delays, but to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay, and despite Jordan having been decided almost two and a half years earlier. Were it not for the Crown’s decision, the trial would have occurred within the ceiling. This clearly demonstrates that there was enough time for the parties and system to adapt. No transitional exceptional circumstance applies in this case. The result is that the net delay of about 35 months is an unreasonable delay contrary to s. 11(b).

Criminal Law: Impaired Driving

R. v. Breault, 2021 QCCA 505; 2023 SCC 9 (39680)

Does the validity of a demand made by a peace officer under s. 254(2)(b) require that the officer have immediate access to an ASD (ie approved screening device) at the time the demand is made? According to the grammatical and ordinary meaning of these words, a driver detained under s. 254(2)(b) must “supply” a breath sample to the peace officer “immediately” or “without delay”. Stopped drivers “are bound by s. 254(2) to comply immediately” (Woods, at para. 45); they are not free to provide a sample when they see fit. Although a stopped driver is being detained at the first step of the detection procedure, the driver has no right to counsel; this right exists only at the second step (Woods, at para. 31). A driver who refuses or fails to comply with a demand is subject to criminal sanctions under s. 254(5). It is therefore not an offence to express an intention to refuse once the ASD arrives at the scene; refusing without reasonable excuse to provide forthwith a sample is what constitutes the offence. This suggests that compliance must actually be physically possible. Nothing in s. 254(2)(b) indicates that Parliament intended to create a presumption of validity. Peace officers who have no ASD with them when they stop a driver who is suspected of having alcohol in their body are not entirely without options: they can require the driver to perform coordination tests, as permitted by the current s. 320.27(1)(a); also have common law powers to check for sobriety; where doing so is reasonable and necessary, they can, among other things, question a driver who is lawfully stopped about prior alcohol consumption or ask the driver to perform physical tests other than those provided for in the Criminal Code. The Crown has not shown that there was any unusual circumstance that would account for the absence of an ASD at the scene herein and thereby justify a flexible interpretation of the immediacy requirement; in fact, the Crown is unable to explain why police did not have an ASD with them. The demand made was therefore invalid. Accordingly, refusal did not attract criminal liability, and the acquittal entered by the Québec Court of Appeal must be upheld.

Criminal Law: Impaired Driving

R. v. McColman, 2021 ONCA 382; 2023 SCC 8 (39826)

The key question in this case is whether Mr. McColman was a “driver” for the purpose of s. 48(1) of the Highway Traffic Act (“HTA”) at the time of the random sobriety stop. The HTA contains two definitions of the word “driver” that may apply to Mr. McColman. Section 1(1) states that “‘driver’ means a person who drives a vehicle on a highway”. By contrast, s. 48(18) provides that, within s. 48, “‘driver’ includes a person who has care or control of a motor vehicle”. In its factum, the Crown suggests that it is possible to interpret s. 48(1) such that it authorizes police to conduct random sobriety stops whenever they see someone in the care or control of a motor vehicle, irrespective of whether they intended to check the person’s sobriety on a highway. In other words, the Crown submits that s. 48(18) sets out essential elements of what constitutes a “driver”. This argument must fail for two reasons. Here, the definition in s. 1(1) is exhaustive and specifies the scope of the word “driver”, whereas the definition in s. 48(18) is non-exhaustive and expands the ordinary meaning of the defined term. Indeed, the definition of “driver” in s. 1(1) is two-pronged; it targets both an activity and the locus of such activity. To be a driver, one must be driving a vehicle (activity) and must do so on a highway (locus). The definition in s. 48(18) seeks only to expand the activity prong of the definition and not the locus element. Second, the S.C.C. has stated that, while the relative effects of ordinary meaning, context, and purpose on the interpretive process may vary, courts must seek to read the provisions of an act as a harmonious whole: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. As stated above, a non-exhaustive definition does not necessarily oust other definitions. Depending on the context, exhaustive and non-exhaustive definitions can be read together. Under a harmonious reading of the two definitions of “driver”, for the purpose of s. 48(1), “driver” refers to a person who is driving, or has care or control of, a motor vehicle on a highway. A person who has care or control of a motor vehicle but who is no longer on a highway would not be a “driver” under the HTA. In the present case, Mr. McColman was not a “driver” for the purpose of s. 48(1) when he was stopped by the police. Even if it can be said that he had care or control of the ATV, he was not on a highway when the police effected the stop. Therefore, the police stop was unauthorized by s. 48(1) of the HTA. Finally, the Crown submits that maintaining the majority of the Court of Appeal’s reading of s. 48(1) of the HTA would create a sanctuary problem. The sanctuary problem refers to the idea that in the future, impaired drivers will simply pull onto private property whenever they spot a police cruiser. The dissenting judge below suggested that “[i]n many cases, this sanctuary will be fleeting, as the impaired driver will stay on the private property only for as long as the police cruiser is in the area. Once it is out of sight, the driver will be free to re-enter the public highway and continue to endanger public safety”: para. 96, per Hourigan J.A. The sanctuary problem is overstated. First, random sobriety stops are not the only tool available to police to combat impaired driving. Second, absent a successful constitutional challenge, the S.C.C. must respect the will of the legislature as expressed in valid legislation. It is not this Court’s role to rewrite the law or to ask what law it would have enacted itself.

Criminal Law: Jury Instructions; Criminal Organizations

R. v. Abdullahi, 2021 ONCA 82; 2023 SCC 19 (40049)

Appellate courts should adopt a “functional approach” to the review of jury instructions for legal error. This respects the jury’s role as the trier of fact while enabling effective review of the trial judge’s duty to ensure the jury understands the law that it is to apply, and supports the function of jury instructions: to equip the jury properly to decide the case according to the law and the evidence. The meaning of “properly” equipping a jury is therefore essential to understanding the appellate court’s task of identifying legal error in jury instructions. Such errors have been described using a variety of terms in the jurisprudence, notably “misdirection” and “non-direction”. Similarly, it is helpful to understand the concept of “non-direction” in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. These concepts direct the appellate court’s focus to the function of the instructions and the overall understanding of a given issue in the mind of the jury. Thus, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed to decide the case. A criminal organization is one that by virtue of its structure and continuity poses an enhanced threat to society. This requirement distinguishes criminal organizations from other groups of offenders who act in concert; it also helps guard against improper reasoning, notably reliance on stereotypes, as a basis for identifying a criminal organization. Without an explanation of this requirement in the judge’s instructions, the jury here was not sufficiently instructed on the legal standard to apply to the evidence in concluding that a criminal organization existed. The evidence at trial, the closing arguments of counsel for the parties, and the lack of objection to the charge by defence counsel could not make up for this error by the trial judge. Although the silence of counsel can be a relevant consideration, it should be recalled that the responsibility for the jury charge lies with the trial judge, not counsel. The silence of counsel is simply one of many considerations under a functional approach. Counsel’s silence may be particularly relevant as to whether a contingent instruction was required, and may be particularly significant where there are indications that it was a tactical decision. Counsel cannot withhold an objection at trial and save it for an appeal. Appellate courts may also be called on to consider whether counsel’s silence is relevant to the curative proviso.

Criminal Law: Mandatory Minimums

R. v. Hills, 2020 ABCA 263; 2023 SCC 2 (39338)

Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the punishment on the offender, and the penalty and its objectives. In respect of Mr. Hills, s. 244.2(3)(b) is grossly disproportionate. Here, the evidence showed that numerous air‑powered rifles constituted “firearms”, including air-powered devices like paintball guns, even though they could not perforate the wall of a typical residence. It is also reasonably foreseeable that a young person could intentionally discharge such a “firearm” into or at a place of residence. This provision therefore applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is severe. The mandatory minimum cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms. The mandatory prison term would have significant deleterious effects on a youthful offender and it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As a result, s. 244.2(3)(b) imposes a mandatory minimum of four years’ imprisonment for a much less grave type of activity such that it is grossly disproportionate and amounts to cruel and unusual punishment. The Crown did not argue that s. 244.2(3)(b) could be saved under s. 1 of the Charter.

Criminal Law: Mandatory Minimums

R. v. Hilbach, 2020 ABCA 332; 2023 SCC 3 (39438)

This appeal questions whether the mandatory minimum sentences for robbery imposed in s. 344(1)(a)(i) and (a.1) of the Criminal Code, constitute cruel and unusual punishment under s. 12 of the Charter. Specifically, Mr. Hilbach challenges the minimum of five years’ imprisonment prescribed under s. 344(1)(a)(i) where a robbery is committed with a restricted or prohibited firearm, arguing that it is a grossly disproportionate sentence in regards to his circumstances. Mr. Zwozdesky relies on a set of hypothetical scenarios to challenge the minimum of four years’ imprisonment previously imposed by s. 344(1)(a.1) where an ordinary firearm is used. The mandatory minimum sentence prescribed in s. 344(1)(a.1) was repealed after this appeal was heard. Despite this legislative change, these reasons examine the impugned mandatory minimum as previously enacted. Some offences that may carry with them significant mandatory minimum sentences, such as four to five years of imprisonment, are framed in such a way that they cannot be committed in innocuous circumstances by offenders who are all but morally blameless. On the contrary, they are almost always serious and committed by offenders who bear a high degree of moral blameworthiness. Offences that come within this class are narrowly defined and limited in scope, subject and mens rea. They regularly involve acts of violence, threats of violence, or conduct that is inherently dangerous, in circumstances that give rise to a real risk of death or serious bodily harm. Additionally, they require a high level of moral blameworthiness on the part of offenders, be they principals or parties, to sustain a conviction. For this class of offences, the mandatory minimum sentence could, applying normal sentencing principles, be considered to be too high and demonstrably unfit in some cases. For these offences there is, however, little risk of imposing a sentence that would meet the test for gross disproportionality so long as the mandatory minimum sentence is not grossly disproportionate to sentences that would be appropriate, applying normal sentencing principles, for conduct that could reasonably be expected to fall within its ambit. Of course, not all offences will fall neatly into one or the other of these two classes of offences, and they are not intended to establish any preconditions. Rather, these categories may serve as departure points when deciding whether a particular mandatory minimum sentence is or is not constitutional. This appeal, and its companion appeal, provide classic examples of these two classes of offences. In Hills, the impugned provision imposed a mandatory minimum of four years’ imprisonment for an offence that can be committed in a wide range of circumstances by a wide range of offenders. By contrast, the present offence is narrowly defined and limited in scope, subject and mens rea. The impugned mandatory minimum sentences apply to conduct that poses a significant risk to the safety of victims and the public. The risk of violence and psychological trauma from any robbery involving a firearm is acute. Unlike the offence that was subject to the mandatory minimum sentence at issue in Hills, the spectrum of conduct captured by robbery with a firearm is not so wide that the minimums apply in circumstances that involve little danger or moral fault. Neither s. 344(1)(a)(i) nor the former s. 344(1)(a.1) are grossly disproportionate. In enacting the mandatory minimum sentences here, Parliament was free to prioritize deterrence and denunciation.

Criminal Law: Mandatory Minimums; Pre-Sentence Driving Prohibition

R. v. Basque, 2021 NBCA 50; 2023 SCC 18 (39997)

Granting driving prohibition credit based on the common law discretion recognized in Lacasse is perfectly consistent with the application of the minimum prohibition in s. 259(1)(a) and with the rule requiring that a sentence commence when it is imposed in s. 719(1). It was therefore open to the sentencing judge to take into account the period of 21 months already served, as this would not undermine Parliament’s intent. In short, no conflict arises from the concurrent application of s. 259(1)(a) and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one year mandatory minimum punishment, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the requirement set out in s. 719(1), because only the sentence has to commence when it is imposed, not the one year minimum punishment served under s. 259(1)(a). These statutory provisions therefore do not displace the discretion of sentencing judges that was recognized in Lacasse.

Criminal Law: Media Access

La Presse inc. v. Quebec, 2022 QCCA 1006; 2023 SCC 22 (40175)(40223)

The question is whether and, if so, how an automatic publication ban applies before the jury is empanelled, given the jurisdiction conferred by s. 645(5) of the Criminal Code on trial judges to deal with certain matters before the empanelment of the jury. The S.C.C. concluded that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5). This conclusion follows from an understanding of the text of s. 648(1) when considered in its full context and in light of Parliament’s purpose. This interpretation does not expand the coverage of the publication ban: only matters that were captured by the ban prior to the enactment of s. 645(5) continue to be captured by it today. This interpretation has not “evolved” or “changed” in a way that departs from any previous meaning held by s. 648(1). Section 648(1) was designed to safeguard the right to a fair trial by averting jury bias and by ensuring the efficiency of our system of trial by jury. This is consistent with the S.C.C.’s existing conception of trial fairness as being concerned not only with averting jury bias by banning “pre-trial” publicity but also with protecting the accused’s other fundamental interests.

Criminal Law: Search & Seizure; Arrest

R. v. Zacharias, 2022 ABCA 112; 2023 SCC 30 (40117)

The accused was pulled over in a traffic stop because of a burnt‑out light and illegally tinted windows. The police officer made several observations that resulted in investigative detention and calling for a sniffer dog to scan for drugs. After a pat‑down search, the officer placed the accused in a police vehicle until the sniffer dog arrived. The dog signalled that drugs were present and the accused was arrested for possession of a controlled substance. The police then searched the accused’s truck, including duffel bags located in the truck box under a tonneau cover. The police discovered a large quantity of cannabis and cash. The accused was arrested for possession for the purposes, handcuffed, and driven to a police detachment. He was then searched and arrested for possession of proceeds of crime. The arrests that followed the sniffer search were in violation of the Charter. The state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest. Where the court finds a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis. However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct under the s. 24(2) analysis. Rather, a consequential breach will be most relevant to the impact on the Charter-protected interests of the accused.

While the arrests and searches incident to arrest in this case constituted additional violations of the Charter, the S.C.C. affirmed the decision not to exclude the evidence under s. 24(2) of the Charter. A “consequential” breach is not a new “type” of Charter breach. It will not be necessary or useful in every case to determine whether the sequence of state conduct presents a “consequential” breach. But this operates as guidance for cases where an arrest follows as a consequence of a search, and both are viewed as unlawful on judicial review. In these cases, the court must assess the seriousness of both the search and the arrest. The arrest, given that it is expected in the circumstances, is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct, but it will often result in a more significant impact on the individual’s Charter-protected interests. In this way, the s. 24(2) analysis does not become a rule of automatic exclusion, while at the same time, the court takes fully into account the impact on the Charter-protected interests of the accused.

Criminal Law: Search & Seizure; Extraterritoriality

R. v. McGregor, 2020 CACM 8; 2023 SCC 4 (39543)

It is unnecessary to deal with the issue of extraterritoriality to dispose of this appeal. This is so because the Canadian Forces National Investigation Service (“CFNIS”) did not violate the Charter. Working within the constraints of its authority in Virginia, the CFNIS sought the cooperation of local authorities to obtain and execute a warrant under Virginia law. The warrant authorized the search, seizure, and analysis of Cpl. McGregor’s electronic devices expressly. Evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent. Although the warrant did not contemplate such evidence, the digital files in issue fell squarely within the purview of the plain view doctrine. Furthermore, the CFNIS obtained Canadian warrants before conducting an in-depth analysis of these devices.

Criminal Law: Self-Represented Accused; Role of Amicus

R. v. Kahsai, 2023 SCC 20 (40044)

In exceptional circumstances, the trial judge retains wide discretion to appoint an amicus curiae with adversarial functions that can respond to the needs of a particular case. In tailoring the role for amicus, the judge must respect both the right of the accused to conduct their own defence and the right to a fair trial. These principles of fundamental justice, along with the nature of the role, help define the assistance that amicus can provide. While the role of amicus therefore has limits, the scope is broad enough to assist the judge where necessary to ensure a fair trial. Although the trial judge here seems to have held the view that amicus could not play a more adversarial role, it is not clear that he would have granted a broader mandate in the circumstances, particularly given the accused’s objections to the appointment, and he was under no obligation to do so. Any irregularity does not result in a miscarriage of justice. In sum, the proper scope of the roles for amicus is limited by necessary constraints inherent in the nature of the role: the role of amicus as a friend of the court means that the amicus can never discharge functions that would violate their duty of loyalty to the court or undermine the impartiality of the court, such as by advising on key strategic defence choices; the mandate assigned should respect the key strategic decisions asserted by the accused while also respecting what is required for trial fairness; the appointment cannot be exploited to circumvent the legal aid scheme or judicial decisions to refuse to grant state-funded counsel. While these limits do not preclude an amicus from performing any adversarial functions, they do restrict the kinds of assistance that amicus can provide.

Criminal Law: Stays; Abuse of Proces

R. v. Haevischer, 2021 BCCA 34; 2023 SCC 11 (39635)

An application in a criminal proceeding, including for a stay of proceedings for abuse of process, should only be summarily dismissed if the application is “manifestly frivolous”. This threshold best preserves fair trials, protects the accused’s right to full answer and defence, and ensures efficient court proceedings. It is a rigorous standard that allows trial judges to weed out the sort of applications that the summary dismissal power is designed to exclude, but permits most applications to be decided on their merits in proportionate proceedings. The blunt tool of summary dismissal, which precludes the applicant from proceeding, is not the only way judges can protect efficiency. The judge’s panoply of case management powers allows for tailored proceedings and mitigates concerns that “fishing expeditions” may derail a trial’s progress, generate undue delay, or result in the disproportionate use of court time. The “manifestly frivolous” threshold also protects fair trial rights by ensuring that those applications which might succeed, including novel claims, are decided on their merits. Protecting fair trial rights is always important, but takes on added significance when the application in question carries great consequences. Generally speaking, the greater the consequences associated with a given application, the greater the possible impact on an accused’s rights if the application is summarily dismissed. Certain applications carry more significant consequences simply because of their nature and the issues they raise. The “manifestly frivolous” standard is intended to be a clear standard to be applied to summary dismissal motions brought in the criminal law context that are not otherwise subject to a legislated or judicial threshold. It does not, for example, have an impact on applications brought under Criminal Code provisions such as s. 685(1) applications concerning frivolous appeals or s. 679 applications for bail pending an appeal. Nor does this standard eclipse the bodies of law that have developed around particular types of applications, such as Garofoli and Pires applications to challenge the lawfulness of a search warrant. If summary dismissal is refused, judges will also be called upon to determine how the voir dire on the underlying application should be conducted, including whether there should be an evidentiary hearing or whether the matter can proceed solely on the basis of argument, an agreed statement of facts or some combination of methods. Allowing an application to proceed to a voir dire is not a free licence to counsel to argue an application however they choose. The time and leeway given to counsel to present and argue the application should be proportionate: just enough to ensure that the application is fairly treated. Beyond that point, additional time and leeway can cause undue delay.

Criminal Law: Unreasonable Verdicts

Metzger v. R., 2022 ABCA 16; 2023 SCC 5 (40285)

Considering the totality of the evidence — including the frailties therein and the absence of any other inculpatory evidence except for the presence of the appellant’s DNA on a cigarette butt — The S.C.C. is satisfied that no “trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. The verdicts were therefore unreasonable.

Criminal Law: Voyeurism; Elements of Offence

R. v. Downes, 2022 BCCA 8; 2023 SCC 6 (40045)

Properly interpreted based on its text, context, and purpose, s. 162(1)(a) has no implicit temporal component. The text of s. 162(1)(a) lacks language suggesting that Parliament intended the “place” to be evaluated at the specific time when the observation or recording was made. Further, as the S.C.C. observed in Jarvis, Parliament’s purposes in enacting the voyeurism offence were to protect individuals’ privacy and sexual integrity. Those purposes are promoted by interpreting s. 162(1)(a) without an implicit temporal component, and would be detracted from by reading in such a component. In effect, s. 162(1)(a) designates places such as bedrooms, bathrooms, and dressing rooms as “safe places” where people should be free from intrusions onto their privacy and sexual integrity, whether or not a person in the place could reasonably be expected to be nude or engaged in sexual activity at the specific time the person is surreptitiously observed or recorded.

Criminal Law: Wrongful Convictions; Publication Bans

Canadian Broadcasting Corp. v. Manitoba, 2018 MBCA 125; 2023 SCC 27 (38992)

During wrongful conviction proceedings before the Court of Appeal, an accused sought to introduce as new evidence an affidavit concerning the death of a witness involved in those proceedings. The Court of Appeal issued a publication ban over the affidavit and ordered the publication ban remain in effect. Under Sherman, “the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.” The first branch of the Sherman test is satisfied because court openness would pose a serious risk to the spouse’s dignity as an important public interest. The publication ban is necessary to prevent a serious risk to the important public interest of protecting the dignity of the witness’s spouse; the second branch of the test is therefore satisfied. As to the third branch, the benefits of the publication ban significantly outweigh its minimal deleterious effect on the right of free expression and, by extension, the principle of open and accessible court proceedings.

Family Law: Domestic Contracts

Anderson v. Anderson, 2021 SKCA 117; 2023 SCC 13 (39884)

This appeal asks how a judge should evaluate an agreement that does not meet the formal requirements of a presumptively enforceable agreement under provincial family property legislation. The specific question is whether the Miglin framework ought to apply to agreements that are not presumptively binding under the Saskatchewan Family Property Act (“FPA”). It is inappropriate to import the Miglin framework without modification in light of the structure of the FPA and the nature of family property division. Still, principles from Miglin and other cases dealing with domestic contracts help inform judges’ exercise of discretion under s. 40 of the FPA. The unique context out of which these agreements arise requires courts to approach them with keen awareness of their potential frailties to ensure fairness, having regard for the integrity of the bargaining process and the substance of the agreement. If a court is satisfied with the agreement’s validity and procedural integrity, it then may consider the agreement in determining the appropriate order for the distribution of property. Given the considerable value placed on spousal autonomy to contract in the legislation and the jurisprudence, the substance of an agreement that represents the parties’ subjective understanding of what property division was appropriate in the context of their relationship at the time of separation merits serious consideration. The trial judge erred in failing to consider the terms of the agreement in dividing the family property: there was nothing to suggest the agreement was not binding, that one party took advantage of the other or did not understand the bargain; as a result, the agreement was a relevant factor meriting serious consideration and the trial judge should have determined whether the substance of the agreement was fair and equitable by reference to the legislative scheme. The trial judge also erred in finding this was not a binding agreement. Consensus on all essential terms does not mean that the parties cannot defer the final resolution of an issue where the parties, as here, have included in the agreement a detailed and objective method by which to resolve it later. Neither the lack of disclosure nor the lack of legal advice was a reason to discount the agreement. Disclosure is not a statutory precondition to the enforceability of an agreement under the FPA, even for an interspousal contract. Rather, s. 27(1) provides that a court may order disclosure between spouses upon the commencement of an application under the FPA. The agreement here reflects an intention to split the family home and household goods equally, in line with the special rules for the treatment of the family home in the FPA and essentially keeps separate the rest of the family property (including the investments, businesses, pensions, and debts of each of the parties). In this context, allowing each party to keep their own property and abandon claims to the other’s property is fair and equitable.

Immigration: Safe Third Country Agreement

Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2021 FCA 72; 2023 SCC 17 (39749)

There is no debate that safe third country agreements, as a general matter, may be compatible with international law. The appellants do not attack the validity of the Safe Third Country Agreement itself, and the S.C.C is not tasked with assessing the wisdom of Canadian immigration policy, a matter that courts are not institutionally designed to evaluate, much less reform. This appeal focuses on whether the Canadian legislative regime implementing the Safe Third Country Agreement — that is, the relevant provisions of the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations — complies with constitutional and administrative law requirements. The S.C.C. held that it does: s. 159.3 of the IRPR is not ultra vires and does not breach s. 7. However, the challenge based on s. 15 is remitted to the Federal Court as either of the courts below did not decide it.

Language Rights: Ministerial Discretion

Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2021 NWTCA 8; 2023 SCC 31 (39915)

Five parents not holding the right guaranteed by s. 23 of the Charter to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the Minister of Education, Culture and Employment of the Northwest Territories (“Minister”) for their children’s admission to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord‑Ouest (“CSFTNO”) recommended admission because it would promote the development of the Francophone community of the Northwest Territories. In spite of those recommendations, the Minister denied each of the applications for admission on the ground that the non‑rights holder parents did not meet the conditions established by the ministerial directive on enrolment in French first language education programs, which created categories of eligible non‑rights holders. The S.C.C. held that Section 23 has two features that make it stand out from the rest of Canada’s constitutional landscape. First, unlike certain other constitutional provisions that impose only negative obligations, s. 23 imposes positive obligations on the state. Second, s. 23 differs from other provisions of the Charter because of the collective scope of the individual rights it grants.

Minority language schools play a vital role in fulfilling the promise contained in s. 23 of the Charter, which is to “give effect to the equal partnership of the two official language groups in the context of education” (Arsenault‑Cameron, at para. 26; see also Mahe, at p. 364; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at para. 27). These schools are settings for socialization where the language of minority language communities is passed on and where their culture can be expressed. The preservation and vitality of these educational environments promote the development of the minority language communities they serve (Mahe, at p. 363; Conseil scolaire francophone de la Colombie‑Britannique, at para. 1).

Municipal/Criminal Law: Definition of “Employer”; Due Diligence

R. v. Greater Sudbury (City), 2021 ONCA 252; 2023 SCC 28 (39754)

The City of Sudbury contracted with Interpaving Limited to act as constructor to repair a downtown water main. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader, in reverse, through an intersection. The Ministry charged the City under s. 25(1)(c) of Ontario’s Occupational Health and Safety Act for failing to ensure that certain safety requirements of the accompanying regulation, Construction Projects (“Regulation”), had been met. The City conceded it was the owner of the construction project and acknowledged that it sent its quality control inspectors to the project site to oversee Interpaving’s contract compliance, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving. The provincial court trial judge acquitted the City because Interpaving, not the City, had direct control over the workers and the intersection and thus the City was not an employer under s. 1(1) of the Act. Alternatively, the trial judge found that even if the City was an employer and breached its obligations, it acted with due diligence. The provincial offences appeal court upheld the trial judge’s decision but did not address the finding that the City acted with due diligence. The Ontario C.A. set aside the decision of the provincial offences appeal court judge, found the City liable under s. 25(1)(c) as an employer, and remitted the question of the City’s due diligence to the provincial offences appeal court. The S.C.C. dismissed the appeal. In summary, a court must consider three questions where an owner who contracts for the services of a constructor on a construction project is prosecuted for a breach of s. 25(1)(c): First, has the Ministry proven beyond a reasonable doubt that the Act applied to the accused because the accused was an employer under s. 1(1) of the Act? An owner is an employer if it (i) employed workers at a workplace where an alleged breach of s. 25(1)(c) occurred; or (ii) contracted for the services of a worker at that workplace (including for the services of a constructor); the Ministry is not required to prove that the owner had control over the workplace or the workers there. Second, has the Ministry proven beyond a reasonable doubt that the accused breached s. 25(1)(c) of the Act? There is a breach of s. 25(1)(c) if the safety measures prescribed by the Regulation are not carried out in the workplace to which the owner/employer is connected by a contractual relationship with employees or an independent contractor; further, the Ministry is not required to prove that the owner had control over the workplace or the workers there. Third, if the Ministry proves the above, has the accused proven on a balance of probabilities that it should avoid liability because it exercised due diligence under s. 66(3)(b) of the Act? Relevant considerations may include, but are not limited to, (i) the accused’s degree of control over the workplace or the workers there; (ii) whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation; (iii) whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services; and (iv) whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace.

Securities/Civil Litigation: Jurisdiction; Extraterritoriality

Sharp v. Autorité des marchés financiers, 2021 QCCA 1364; 2023 SCC 29 (39920)

Four British Columbia residents (“defendants”) are alleged by the administrative agency that regulates Québec’s financial sector, the Autorité des marchés financiers (“AMF”), to have engaged in a transnational “pump‑and‑dump” securities manipulation scheme. The defendants allegedly acted in concert to (1) acquire the shares of a shell company, (2) give it a legitimate face, (3) promote its business, (4) sell their shares for a profit, and (5) distribute this profit among themselves. The AMF also alleged the scheme had several ties to Québec sufficient to apply Québec’s securities regulatory scheme to the defendants: the shell company was a reporting issuer in Québec with a Montréal business address; its director was a Québec resident when the scheme was implemented; its promotional activities were accessible to Québec residents; and, ultimately, Québec investors lost money. The AMF brought an originating pleading before Québec’s Financial Markets Administrative Tribunal (“FMAT”) alleging that the defendants contravened the Québec Securities Act. The FMAT dismissed the defendants’ motions, ruling it had jurisdiction over them under s. 93 of the Act respecting the Autorité des marchés financiers, which grants the FMAT jurisdiction to make determinations under the Securities Act, in light of the Court’s decision in Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, which held that a provincial regulatory scheme constitutionally applies to an out‑of‑province defendant when there is a “sufficient connection” or a “real and substantial connection” between the province and the defendant. The Superior Court of Québec dismissed the defendants’ applications for judicial review and held that the FMAT properly assumed jurisdiction. The Qué. C.A. dismissed the defendants’ appeals, concluding the real and substantial connection test in Unifund addresses the constitutional applicability of the Québec securities scheme to non‑residents who allegedly engaged in a securities manipulation scheme with connections to Québec, and the FMAT correctly concluded there is a real and substantial connection between Québec and the defendants and properly assumed jurisdiction. The Qué. C.A. also ruled that although the Civil Code of Québec (“C.C.Q.”) acts as suppletive law for many matters, including certain aspects of public law, the private international law rules in Book Ten of the C.C.Q. do not apply when no private rights are at issue. The S.C.C. dismissed the appeal.

Tax: Non-Capital Losses; GAAR

Deans Knight Income Corp. v. Canada, 2021 FCA 160; 2023 SCC 16 (39869)

The parties accept that the appellant complied with the text of the Income Tax Act. In other words, the parties agree that there was no “acquisition of control” and that, therefore, the loss carryover restriction in s. 111(5) did not apply. The central issue in this appeal is whether s. 245 of the Act, known as the general anti-avoidance rule or the GAAR, applies to deny the deductions. The GAAR operates to deny tax benefits flowing from transactions that comply with the literal text of the Act but nevertheless constitute abusive tax avoidance. For the GAAR to apply to a transaction, three elements found in s. 245 must be met: (1) there must be a “tax benefit”; (2) the transaction must be an “avoidance transaction”, meaning one that is not undertaken primarily for a bona fide non-tax purpose; and (3) the avoidance transaction giving rise to the tax benefit must be an “abuse” of the provisions of the Act (or associated enactments).

The Tax Court found that the transactions were tax avoidance transactions that resulted in a tax benefit, but concluded that they were not abusive. On appeal, the Federal Court of Appeal held that the transactions were abusive, such that the GAAR applied to deny the tax benefits. I note that the parties and the lower courts focused on the non-capital loss deductions since the SR&ED and ITC provisions function similarly. As was the case in the Federal Court of Appeal, the only issue on appeal is whether the appellant’s series of transactions resulted in abusive tax avoidance. These transactions were abusive. The object, spirit and purpose of s. 111(5) of the Act is to prevent corporations from being acquired by unrelated parties in order to deduct their unused losses against income from another business for the benefit of new shareholders. Through a complex series of transactions, the appellant underwent a fundamental transformation that achieved the outcome that Parliament sought to prevent, while narrowly circumventing the text of s. 111(5). The result of the transactions thereby frustrated the provision’s rationale. Since the GAAR applies to deny the tax benefits, the Minister’s reassessments must be restored.

Oral Judgments

Criminal Law: Assault; Defence

R. v. Lindsay, 2022 ABCA 424; 2023 SCC 33 (40569)

Jamal J.: “We are all of the view that the appeal should be dismissed. We do not accept the appellant’s submission that the trial judge misinterpreted the concession of defence counsel that if an assault occurred, it was an aggravated assault. The appellant did not raise this as a ground of appeal before the Court of Appeal. The appellant now claims that the trial judge interpreted this concession as meaning that he did not need to decide whether the Crown had proved the elements of aggravated assault. We disagree. Reading the judgment as a whole, the trial judge concluded that the appellant committed aggravated assault when he intentionally struck and threw the person in his custody to the ground. As the majority of the Court of Appeal correctly noted, based on the trial judge’s reasons, “the pathway to conviction is clear and based on the correct application of relevant legal principles” (para. 6). A trial judge is presumed to know the law and is entitled to focus on the live issues at trial. In our view, the trial judge’s reasons are sufficient in law (see R. v. G.F., 2021 SCC 20, at para. 74). Nor do we accept the appellant’s argument that the trial judge erred in concluding that s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46, did not provide a defence for the appellant’s use of force against the individual. Section 25(1) “essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34). … In our view, the trial judge was entitled to find on the evidence before him that the appellant had no reasonable grounds to strike the person initially, and that his use of force in striking him three more times in the head and then throwing him to the ground was unnecessary and excessive on a proper standard. The trial judge’s findings of fact were amply supported by the record.”

Criminal Law: Intent for Murder; After-the-Fact Conduct

R. v. Lawlor, 2022 ONCA 645; 2023 SCC 34 (40500)

O’Bonsawin J. (Rowe, Martin and Moreau JJ. concurring): “This is an appeal from R. v. Lawlor, 2022 ONCA 645, 418 C.C.C. (3d) 87, in which the majority dismissed an appeal by Derrick Lawlor of his conviction for first degree murder by a jury. The majority in the Ontario Court of Appeal dismissed the appeal; Justice Nordheimer would have allowed the appeal and ordered a new trial. Only two grounds of appeal are before this Court. The first is whether the trial judge erred in his instructions to the jury regarding the use of evidence as to the accused’s mental health and the requisite intent for first degree murder. The second relates to evidence of after-the-fact conduct. A majority of this Court would allow the appeal on the ground relating to the requisite intent for murder and for first degree murder, but not on the ground relating to after-the-fact conduct. As to the first ground, we are in substantial agreement with the reasons of Justice Nordheimer. As to the second ground, we are in substantial agreement with the reasons of the Ontario Court of Appeal majority. … the appeal is allowed, the conviction is set aside and a new trial is ordered.” Kasirer J.: ” I would dismiss the appeal. … In sum, in respect of both the mental health and the after-the-fact evidence, I see no reviewable errors in the jury charge and, on these points, I would adopt the majority reasons of van Rensburg J.A. as my own, without reserve.”

Criminal Law: Party Liability

R. v. Johnson, 2022 ONCA 534; 2023 SCC 24 (40330)

Kasirer J.: “We are all of the view that the majority in the Court of Appeal was correct to conclude that party liability was properly left to the jury by the trial judge. The evidence on the record provided party liability with an air of reality. We agree, however, with Nordheimer J.A., dissenting, that the trial judge erred in law in his instructions on party liability. In one part of the charge, the judge gave instructions that resembled co-principal liability, but said he was instructing on aiding. In other parts of the charge, the jury was given partially correct instructions on aiding. We share Nordheimer J.A.’s view that the jury was never clearly told that the appellant would have needed to know that the principal intended to kill the victims in a planned and deliberate manner in order to be liable for first degree murder as an aider. That said, we would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, because these errors were harmless. There is no reasonable possibility that the jury would have reached a different verdict had these errors not been made (see R. v. Abdullahi, 2023 SCC 19, at para. 33; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25). The evidence that supported party liability was the same as the evidence for co-principal liability. Moreover, the appellant’s defence was not undermined by the jury charge. Accordingly, we would dismiss the appeal.”

Criminal Law: Sexual Assault

R. v. Hay, 2022 ABCA 246; 2023 SCC 15 (40316)

The Chief Justice: “Mr. Hay appeals from the unanimous decision of the Court of Appeal of Alberta setting aside an acquittal and substituting a conviction, pursuant to s. 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, on one count of sexual assault. We are all of the view that the appeal should be dismissed, substantially for the reasons of the Court of Appeal. Mr. Hay’s defence of honest but mistaken belief in communicated consent had no air of reality, and the evidence of prior sexual activity was inadmissible. In the circumstances, the Court of Appeal properly substituted a conviction. Therefore, the appeal is dismissed.”

Criminal Law: Sexual Assault; Closing Argument

R. v. B.E.M., 2022 ABCA 207; 2023 SCC 32 (40221)

Kasirer J.: “We are all of the view that the appeal should be dismissed. It is common ground that, in closing submissions to the jury, Crown counsel should not have recounted an anecdote about a personal childhood memory that had no connection to the evidence (see Pisani v. The Queen, [1971] S.C.R. 738, at p. 740). Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel (see Boucher v. The Queen, [1955] S.C.R. 16). But the majority of the Court of Appeal was correct to conclude that this error did not result in an unfair trial or a miscarriage of justice in this case. Both the majority and the dissent relied on the relevant factors set out in R. v. Stephan, 2017 ABCA 380, 61 Alta. L.R. (6th) 26, rev’d on other grounds 2018 SCC 21, [2018] 1 S.C.R. 633, but disagreed on their application. At issue before the jury was both the veracity and accuracy of the complainant’s own memory of the events relating to the sexual assaults she allegedly suffered as a child. The defence argued that these events never took place and challenged the complainant’s recollections as uneven. Insofar as this challenged the complainant’s version of events as lacking both credibility and reliability, the improper comments of Crown counsel were potentially serious as they touched on a core issue at the trial. That said, the context of the anecdote considerably limited its prejudicial effect. First, and unlike Pisani, the personal anecdote was not about an offence or about conduct comparable to the substance of the allegations at issue. Moreover, the anecdote was not a prominent feature of the Crown’s closing address. Furthermore, while defence counsel did object to other aspects of the Crown’s closing submissions that are not relevant to the appeal, no objection was made to the Crown’s personal anecdote. The failure of defence counsel to object to the anecdote is not of course dispositive, but it is a factor to be considered in measuring the impact on trial fairness on appeal (see R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 107). The trial judge did caution the jury not to consider what counsel said as evidence. And while the trial judge did not undertake specific remedial steps to alert the jury to the improper comments of the Crown, the judge’s observation that jury members should use their “common sense understanding of how memories operate” (A.R., vol. I, at p. 63) is consonant with the idea that, although improper, the Crown’s anecdote should be read in that light. Nothing would suggest that the charge did not achieve its purpose “to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence” (R. v. Abdullahi, 2023 SCC 19, at para. 72). In sum, we agree with the view that Crown counsel’s improper anecdote did not render the appellant’s trial unfair. The appeal is dismissed.”

Criminal Law: Sexual Assault of a Child; Confessions

R. v. Chatillon, 2022 QCCA 1072; 2023 SCC 7 (40331)

There is a publication ban in this case. The judgment from the bench was by Chief Justice Wagner, the judgment being 6:1. The Chief Justice: “A majority of the Court is of the view that the appeal should be allowed on the sole issue of the respondent’s consent to the disclosure of his admissions, discussed by the dissenting judge at paras. 83-85 of the reasons. In the Court’s opinion, this is sufficient to dispose of the appeal. Côté J. would have dismissed the appeal, substantially for the reasons of the majority of the Court of Appeal. The appeal is allowed, the judgment of the Court of Appeal is set aside and the respondent’s conviction is restored.”

Criminal Law: Sexual Offences; Hearsay

R. v. S.S., 2022 ONCA 305; 2023 SCC 1 (40147)

There is a publication ban in this case. The Chief Justice: “A majority of this Court would allow the appeal, substantially for the reasons of the dissenting judge, MacPherson J.A. Justice Rowe would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal. Therefore, the appeal is allowed and the conviction is restored.”

Leaves to Appeal Granted

Aboriginal Law: Métis; Duty to Consult

Saskatchewan (Environment) v. Métis Nation – Saskatchewan, et al., 2023 SKCA 35 (40740)

In 2021, the Respondents Métis Nation — Saskatchewan and Métis Nation — Saskatchewan Secretariate Inc. (collectively, “the MNS”) brought an application for judicial review of a decision by the Applicant, the Government of Saskatchewan, to issue exploratory mining permits to a resource company. The MNS alleged that Saskatchewan failed to discharge its duty to consult in issuing the permits, given that the Métis have long claimed Aboriginal title and rights (including commercial harvesting rights) to large areas of the Province. Saskatchewan brought an application to strike portions of the MNS’s originating notice, arguing that the MNS’s attempt to bring multiple judicial procedures against the Crown for the same claims constituted an abuse of process. Specifically, Saskatchewan referenced a first action filed by the MNS in 1994, seeking a declaration of title and commercial rights, which had been judicially stayed in 2005 with leave to apply to lift the stay (although no such attempt had yet been made); and a second action filed by MNS in 2020, challenging Saskatchewan’s consultation policy as being unconstitutional because it opposed the recognition of Aboriginal title and commercial rights for the Métis. The chambers judge at the Court of King’s Bench granted Saskatchewan’s application, and struck portions of the MNS’s originating notice that raised issues already covered by the 1994 Action and the 2020 Action. The Sask. C.A. unanimously allowed MNS’s appeal, set aside the first decision, and restored the impugned portions of the MNS’s originating notice.

Aboriginal Law: Policing Costs

Attorney General of Québec v. Pekuakamiulnuatsh Takuhikan, 2023 FC 267 (40619)

The Respondent, Pekuakamiulnuatsh Takuhikan, is a band council within the meaning of the Indian Act. It represents the Pekuakamiulnuatsh Innu First Nation, whose community is located in Mashteuiatsh on the western shore of Lac Saint-Jean near Roberval. Under tripartite agreements signed over the years with the Governments of Canada and Québec since 1996, the Respondent is responsible for policing in the community of Mashteuiatsh. The tripartite agreements resulted from the adoption by the Government of Canada in 1991 of the First Nations Policing Policy and the First Nations Policing Program, which allowed it and the provinces, territories and First Nations to negotiate tripartite funding agreements in order to establish professional police services responsive to the needs and culture of each Indigenous community. The Respondent brought an action against the Government of Canada, represented by the intervener, the Attorney General of Canada, and the Government of Québec, represented by the Applicant, the Attorney General of Québec, claiming “reimbursement of the accumulated deficits of Public Security in the community of Mashteuiatsh for the services provided under the agreements on policing in the community of Mashteuiatsh in force for the period of April 1, 2013, to the present date”. Allegedly, governments continued renewing the tripartite agreements without increasing the money allotted, despite the fact that the Respondent had to pay significant amounts retroactively to the members of its police force as a result of an arbitration award related to the renewal of the collective agreement, that ordered catch-up wage increases. In support of its application, the Respondent alleged the Governments of Québec and Canada had breached their obligations to negotiate in good faith, to act with honour and to fulfill their fiduciary duties with respect to the funding of its police force. The Superior Court dismissed the Respondent’s application. The Qué. C.A. allowed the Respondent’s appeal and ordered the Attorney General of Canada and the Attorney General of Québec to pay it, respectively, $832,724.37 and $767,745.58, which corresponded to the total amount of the accumulated deficit subdivided in proportion to the financial commitment of each level of government.

Aboriginal Law: Treaty Rights

Jim Shot Both Sides, et al. v. Canada, 2022 FCA 20 (40153)

On September 22, 1877, the Blackfoot Confederacy and the Crown executed Treaty 7, which established Reserve No. 148, the largest reserve in Canada. It is the home of the Kainai, or Blood Tribe. Under the Treaty, the size of the reserve was to be established through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families”. The Blood Tribe has long claimed the actual size of its reserve did not accord with that promised by the Treaty and, in 1980, commenced an action in the Fed. Court. For decades, the action sat in abeyance. In 2016, the court held phase I of the trial of the action for the purpose of receiving oral history evidence from aging members of the Blood Tribe. Phase II commenced in 2018 to hear fact and expert witness evidence and to make a determination on liability. Following phase II, the trial judge found the Blood Tribe’s claims were discoverable more than six years before the action was commenced in 1980 and, with the exception of a claim for breach of treaty, were therefore time-barred through the operation of The Limitation of Actions Act and s. 39 of the Federal Courts Act. The trial judge held an action for breach of a treaty commitment could not be pursued in a Canadian court prior to the advent of s. 35 of the Constitution Act, 1982. Therefore, for the purposes of the limitations statute, time for a breach of treaty claim only began to run in 1982. The trial judge found Canada was in breach of its treaty commitment, and the size of the Reserve was understated by 162.5 square miles. The Crown appealed. The Fed. C.A. allowed the appeal and varied the Fed. Court’s judgment to state all claims of the Blood Tribe were time-barred.

Bankruptcy & Insolvency: Corporate Attribution Doctrine

Ernst & Young Inc., et al. v. Aquino, et al., 2022 ONCA 202 (40166)

The Applicant, John Aquino, was the directing mind of Bondfield Construction Company Limited and its affiliate, 1033803 Ontario Inc., commonly known as Forma-Con (“debtor companies”). He and the other Applicants carried out a false invoicing scheme over a number of years by which they siphoned off tens of millions of dollars from both debtor companies. The Respondents challenged the false invoicing scheme and sought to recover some of the money under s. 96 of the Bankruptcy and Insolvency Act and s. 36.1 of the Companies’ Creditors Arrangement Act. They asserted the false invoicing scheme was implemented by means of transfers at undervalue by which Mr. Aquino and the debtor companies intended to defraud, defeat or delay a creditor. The Applicants asserted the principles of the common law doctrine of corporate attribution set out in Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662, did not permit the imputation of Mr. Aquino’s intention to either debtor company. The application judge imputed the fraudulent intention of Mr. Aquino to the corporate debtors. The Ont. C.A. dismissed the Applicants’ appeals.

Bankruptcy & Insolvency: Debts Not Released by Discharge

Poonian, et al. v. British Columbia Securities Commission, 2022 BCCA 274 (40396)

The Respondent, B.C. Securities Commission (“Commission”) found the Applicants, Thalbinder Singh Poonian and Shailu Poonian (“Poonians”), breached the Securities Act by engaging in conduct resulting in the misleading appearance of trading activity in, or an artificial price for, a corporation’s shares. It then imposed both a disgorgement order and an administrative penalty against the Poonians. The Commission applied to the B.C.S.C. for an order declaring the amounts owed to it by the Poonians were debts that would not be released by an order of discharge under the Bankruptcy and Insolvency Act (“BIA”). The B.C.S.C. granted the Commission’s application. It concluded the debts fell within two exemptions to the discharge of debts outlined at s. 178(1) of the BIA: the debts were fines, penalties or restitution orders imposed by a court (s. 178(1)(a)) and they resulted from obtaining property or services by false pretences or fraudulent misrepresentation (s. 178(1)(e)). The B.C.C.A. dismissed the appeal. While it disagreed the sanctions had been imposed by a court, it concluded the B.C.S.C. had not erred in finding the sanctions in this case fell within the exemption defined in s. 178(1)(e) of the BIA. The fact the misrepresentation was not made to the creditor — in this case, the Commission — did not preclude the Commission from relying on the exemption.

Bankruptcy & Insolvency: Ponzi Preference Claims

Scott, et al. v. Doyle Salewski Inc. in its capacity as Trustee in Bankruptcy of Golden Oaks Entreprises Inc., et al., 2022 ONCA 509 (40399)

Golden Oaks Enterprises Inc., founded by Joseph Gilles Jean Claude Lacasse, was a Ponzi scheme. The scheme collapsed in 2013 and both Golden Oaks and Mr. Lacasse, Golden Oaks’ principal and directing mind, went into receivership and made assignments in bankruptcy. A trustee in bankruptcy was appointed. It began over 80 separate legal actions against creditors in 2015. Seventeen of these actions were brought against individuals and companies who received payments from Golden Oaks in 2012 and 2013, which included commission payments and interest on promissory notes. The theory of these 17 actions, as a Ponzi scheme, Golden Oaks was by definition insolvent, it never had enough money to pay what it owed to legitimate creditors, and the commission payments and usurious interest payments to the defendants deprived those creditors of their share of the company’s remaining equity. The 17 actions were heard together in a summary trial. The trial judge granted a claim under s. 95(1)(b) of the Bankruptcy and Insolvency Act against Mr. Scott for repayment of $72,575 in preferences, while dismissing other claims against him. With respect to the other investor Applicants, the trial judge granted claims for repayment of interest in varying amounts between $4K and $67,500. The Ont. C.A. dismissed the appeal and allowed the cross-appeal in part.

Bankruptcy: Student Loans

Izabela Piekut v. R., in Right of Canada as Represented by the Minister of National Revenue, 2023 BCCA 181 (40782)

Between September 1987 and October 1994, the Applicant Ms. Piekut obtained a series of student loans through a federal government program. She graduated in 1994 and obtained her teaching diploma the following year. Ms. Piekut received two further student loans in 2002 and 2003, when she earned a master’s degree. In 2008, Ms. Piekut enrolled in part-time studies, earning her second master’s degree in 2009. That time, she funded her studies herself, with no student loan. In October 2013, Ms. Piekut made a consumer proposal under the Bankruptcy and Insolvency Act. A certificate of full performance of that proposal was granted. In June 2019, Ms. Piekut applied to the court for a declaration that, by operation of law, she had been released from all debt and interest associated with her government student loans. Ms. Piekut’s application was dismissed. Her application for leave to appeal from that decision was granted, but her appeal subsequently dismissed.