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

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

Latest News

  1. The SCC is releasing its judgments in two appeals on Friday, March 8, 2024: R. v. Kruk and R. v. Tsang. At issue is the ability of trial judges to use common sense reasoning in assessing credibility in sexual assault cases.
  2. On March 1, 2024, the SCC released R. v. Bykovets, 2024 SCC 6. In a 5:4 split, with Justice Moreau joining the majority, the Court ruled that IP addresses attract a reasonable expectation of privacy.
  3. Only 17% correctly predicted the result.

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

Cases to Predict: Sexual Assault Evidence

Crown appeals by leave from R. v. Kruk, 2022 BCCA 18 (SCC factums) and R. v. Tsang, 2022 BCCA 345 (SCC factums)

Webcast of SCC hearing for both appeals

What Happened?

Kruk: The complainant was intoxicated and fell asleep in the respondent’s bedroom. She testified that she woke up to find the respondent on top of her with his penis inside her vagina. The respondent denied having sex with the complainant. The respondent was convicted of sexual assault. The Court of Appeal allowed the respondent’s appeal, set aside the conviction, and ordered a new trial.

Tsang: The respondent and the complainant had mutual friends but met for the first time at an event. When that event ended, the respondent drove the complainant and her friend to Commodore Ballroom. The respondent and the complainant continued drinking and dancing and later left the Commodore in the respondent’s car. On the way to the complainant’s home, they got into the back seat to “make out”. The trial judge found that what ensued after the initial consensual foreplay was a sexual assault. The trial judge convicted the respondent of sexual assault. The Court of Appeal allowed the conviction appeal, set aside the conviction and ordered a new trial.

What Was Argued at the SCC?

Appellant: The Crown argued that the Court of Appeal ought to have deferred to what was a credibility assessment by the trial judge. The Court of Appeal erred in concluding the trial judge engaged in speculative reasoning because they did not read the reasons as a whole but instead finely parsed them. The trial judge was entitled to rely on common sense and life experience, and it is a matter of common sense that a credible witness would not mistake sensations associated with a traumatic assault. Unlike the rule against stereotypical reasoning, a rule against ungrounded common sense assumptions would undermine deference owed to a trial judge’s credibility assessment.

Respondent: Kruk argued that he was convicted on the basis of ungrounded and speculative generalizations by the trial judge about all women. While the trier of fact may draw inferences from the evidence using common sense and human experience, there still must be facts and evidence underlying any assumptions. Tsang argued that there is no meaningful distinction between “stereotypical reasoning” and an “ungrounded common-sense assumption”. Both are impermissible speculation.

What Else Should You Know Before Making a Prediction?

Justice Paciocco of the Ontario Court of Appeal discussed the rule against ungrounded common-sense assumptions in R. v. JC, 2021 ONCA 131. I expect the SCC to affirm its existence, but it is not groundbreaking: the problem is simply judge’s making assumptions that are not grounded in the evidence or appropriately supported by judicial notice. In the present case, there is some evidence for the assumptions, and the problems identified by the Court of Appeal do appear to stem from nitpicking the trial judges’ language choice in their reasons. The Crown, more often than not, is successful on sexual assault appeals at the SCC. I’m leaning towards appeal allowed, but in a split decision.

Previous Prediction: Privacy in IP Addresses

On March 1, 2024, the SCC released its decision in R. v. Bykovets, 2024 SCC 6.

Held (5:4): Appeal allowed. New trial ordered. An IP address attracts a reasonable expectation of privacy.

Key Points:

  • Since an IP address attracts a reasonable expectation of privacy, a request by the state for an IP address is a search under s. 8 of the Charter.
  • Section 8 seeks to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. The biographical core is not limited to identity but includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual. As the link that connects specific Internet activity to a specific location, an IP address may betray deeply personal information, even before police try to link the address to the user’s identity. Activity associated with the IP address can be correlated with other online activity associated with that address available to the state.
  • An IP address can also set the state on a trail of Internet activity that leads directly to a user’s identity, even without a warrant compelling an ISP to disclose the name and address of the customer for the IP address. Access to IP addresses without judicial pre-authorization poses intense privacy risks.
  • Requiring that police obtain prior judicial authorization before obtaining an IP address is not an onerous investigative step.

Predictions: 17% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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