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Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from October 21 to November 17, 2021 inclusive.

Appeals

Criminal Law: Parties to Offences; Issue Estoppel
R. v. Cowan, 2020 SKCA 77, 2021 SCC 45 (39301)

The trial judge committed an error of law in his analysis of party liability, which had a material bearing on the acquittal. The appropriate remedy is therefore to set aside the acquittal and order a new trial; however, the new trial must be a full retrial; while appellate courts have broad powers under s. 686(8) of the Criminal Code to “make any order, in addition, that justice requires”, this does not include the power to limit the scope of a new trial to a particular theory of liability on a single criminal charge. For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. Where, as here, an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party. This principle applies where an accused is prosecuted as either an abettor or counsellor. Sections 21 and 22 do not create multiple offences; rather, they merely provide alternative paths to the same destination by setting out different ways in which an accused may participate in and be found guilty of an offence. As the trial judge committed a legal error that had a material bearing on the acquittal, the verdict is necessarily invalid. The findings in the first trial that led to his acquittal must therefore be set aside and cannot form the basis of a claim of issue estoppel.

Criminal Law: Sentencing; Starting Points; Ranges
R. v. Parranto, 2019 ABCA 457, 2021 SCC 46 (39227)

Starting points for sentencing are to be properly treated as non-binding guidance by both sentencing and appellate courts. There are risks inherent in using any form of quantitative sentencing guidance, including sentencing ranges; but these risks can be avoided if appellate courts adhere to the deferential standard of review in sentencing appeals, and if the S.C.C. provides clear direction on how appellate courts should account for starting points when reviewing sentences for errors in principle and demonstrable unfitness. Provincial appellate courts should be afforded the respect and latitude to provide their own forms of guidance to sentencing judges, as long as that guidance comports with the principles and objectives of sentencing under the Criminal Code, and with the proper appellate standard of review. An appellate court may derive a starting point in whole or in part from past sentencing decisions. It may also choose to depart from past trends to recalibrate how the gravity of the offence is weighed in the proportionality analysis. Courts of appeal have discretion to choose which form of guidance they find most useful and responsive to the perceived needs of their jurisdiction, which may vary across the country.

Human Rights: Discrimination
Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2019 QCCA 2042, 2021 SCC 43 (39041)

Very often, discrimination complaints are made in the context of employment, housing, or goods and services available to the public. In this case, the complaint that gave rise to the appeal is quite different, as it concerns a professional comedian who mocked a public figure with a disability. However, the complaint underlying this appeal led not to an action in defamation based on the comments made, but rather to a discrimination claim based on those comments. Could the Human Rights Tribunal conclude that the discrimination complaint was well founded? The S.C.C. held the answer must be no, because the elements of a discrimination claim under the Québec Charter are not established. Briefly stated, a complainant must, in order to succeed, establish all the elements of discrimination, as required by s. 10 of the Québec Charter. The complainant must show (1) a distinction, exclusion or preference; (2) based on one of the grounds listed in the first paragraph of s. 10; (3) that has the effect of impairing the right to full and equal recognition and exercise of a human right or freedom.

Labour Law: Arbitrator Jurisdiction
Northern Regional Health Authority v. Horrocks, 2017 MBCA 98, 2021 SCC 42 (37878)

Where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and the Manitoba Labour Relations Act is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement. In its essential character the complaint herein alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes; it follows that the adjudicator did not have jurisdiction over the complaint.

Private International Law: Foreign Judgments
H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2020 ONCA 12, 2021 SCC 44 (39130)

To determine whether a defendant is carrying on business in a jurisdiction, the court must inquire into whether it has some direct or indirect presence in the jurisdiction, accompanied by a degree of business activity that is sustained for a period of time. Whether or not a corporation is “carrying on business” is a question of fact, and in order to determine whether this definition is met, the court should consider the ten indicia noted in the Adams case, and herein. Some kind of actual presence, whether direct or indirect, is required. A physical presence in the form of maintenance of physical premises will be compelling, and a virtual presence that falls short of an actual presence will not suffice. There is no error of law in the application judge’s interpretation of s. 3(b) of the REJA, nor is there any palpable and overriding error in his assessment of whether Antigua was carrying on business in British Columbia. In concluding that Antigua was not carrying on business in British Columbia, the application judge made five main findings of fact. All five of these findings of fact are supported by the evidentiary record and are without error.

Torts/Municipal Law: Negligence; Slip & Fall
Nelson (City) v. Marchi, 2020 BCCA 1; 2021 SCC 41 (39108)

In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, the S.C.C. explained that “core policy” government decisions — defined as “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors” — must be shielded from liability in negligence. In ascertaining whether a decision is one of core policy, the key focus is always on the nature of the decision. Core policy decisions are immune from negligence liability because each branch of government has a core institutional role and competency that must be protected from interference by the other branches. Four factors that help in assessing the nature of a government’s decision: (1) the level and responsibilities of the decision-maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. Here, on duty of care, the relevant City decision was not a core policy decision immune from negligence liability. The City owed a duty of care. On standard of care and causation, the trial judge’s analysis was tainted by legal errors. As key factual findings are required, the S.C.C. is not well placed to determine the standard of care and causation issues, and so dismisses the appeal and orders a new trial in accordance with these reasons.

Oral Judgments

Criminal Law: Firearms Offences; Circumstantial Evidence
R. v. Dingwall, 2020 BCCA 108; 2021 SCC 35 (39274)

Rowe J.: “We would dismiss the appeal substantially for the reasons of Newbury J.A., at paras. 51 and 53. We would add that notwithstanding a misstatement of law with respect to circumstantial evidence set out by the trial judge in para. 9(b) of his reasons (2017 BCSC 1457 (CanLII)), the trial judge properly applied the law with respect to circumstantial evidence. Accordingly, no reliance need be placed on the curative authority under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Finally, we would note that while the Court of Appeal, in paras. 39 and 50, addressed the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, the scope and application of that rule is not before this Court.”

Criminal Law: Joint/Co-principal Liability
R. v. Strathdee, 2019 ABQB 479, 2021 SCC 40 (39556)

Rowe J.: “Mr. Strathdee appeals as of right to this Court under s. 691(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46, on the basis that the Alberta Court of Appeal overturned his acquittal for unlawful act manslaughter and entered a conviction. The trial judge, sitting as judge alone, had acquitted Mr. Strathdee after considering joint/co-principal liability and abetting under s. 21(1)(a) and 21(1)(c), respectively, of the Criminal Code (2019 ABQB 479). The charges against Mr. Strathdee stemmed from a group assault in which several victims sustained multiple injuries and one victim, Mr. Tong, sustained a single stab wound which caused his death. We agree with the Court of Appeal that there is no basis for the view that the stabbing of Mr. Tong was a distinct act outside the scope of the group attack. Having regard to the findings of fact in paras. 137 and 156-59 (CanLII) of the trial decision, and the statement of law set out by the Court of Appeal at paras. 61, 66 and 68 of its decision, this Court affirms the result of the Alberta Court of Appeal that Mr. Strathdee is guilty of unlawful act manslaughter. We also wish briefly to clarify a statement of law in R. v. Cabrera, 2019 ABCA 184, 95 Alta. L.R. (6th) 258, aff’d R. v. Shlah, 2019 SCC 56. Any implication from Cabrera that joint/co-principal liability is automatically eliminated if the evidence demonstrates application of force by only a single perpetrator is not accurate. Joint/co-principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, is fully consistent with the foregoing. Accordingly, we would dismiss the appeal.”

Criminal Law: Search Warrants
R. v. Reilly, 2020 BCCA 369, 2021 SCC 38 (39531)

Moldaver J.: “We would dismiss this appeal, substantially for the thorough reasons of Justice Griffin on behalf of the majority of the Court of Appeal. We agree that the trial judge erred in his analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms by considering Charter-compliant police behaviour as mitigating. We also agree that the trial judge erred by improperly conducting the overall balancing — whether including the evidence would bring the administration of justice into disrepute — within the first two factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The language of Grant is clear: this overall balancing occurs at the end (para. 85). Judges must first consider whether each of the three factors weigh in favour of inclusion or exclusion of the evidence before asking whether — having regard to all factors — inclusion of the evidence would bring the administration of justice into disrepute. Conducting overall balancing within the first two Grant factors waters down any exclusionary power these factors may have. This type of analysis undermines the purpose and application of s. 24(2). With respect, however, we are unable to agree with the majority of the Court of Appeal that the trial judge properly considered all relevant Charter-infringing state conduct under the first Grant factor. The trial judge considered the Charter-infringing state conduct related to only two of the three s. 8 breaches. Failing to consider state conduct that resulted in the third breach — the clearing search — was an error. Regardless of whether the third breach was caused by the first two breaches, and regardless of the fact that it was considered necessary in the wake of Constable Sinclair’s unlawful entry, it was nonetheless a breach of Mr. Reilly’s s. 8 Charter-protected rights and must be considered under the first Grant factor. Trial judges cannot choose which relevant Charter-infringing state conduct to consider. The trial judge committed errors that required the majority of the Court of Appeal to conduct a fresh s. 24(2) analysis. In our view, we do not lack jurisdiction to consider alleged errors in the majority’s fresh analysis. We see no reason to interfere with their fresh analysis. Accordingly, we would dismiss the appeal and affirm the exclusion of evidence and the order for a new trial.”

Criminal Law: Sexual Offences
R. v. J.D., 2020 QCCA 1108, 2021 CanLII 112491 (39370)

The Chief Justice: “We are all of the view that the appeal should be allowed, the convictions on counts 1 and 2 concerning C.D. and 9 to 13 concerning S.D. restored, the sentences on counts 1 and 2 and 9 to 13 restored, and J.D. ordered to report to prison authorities in the next 48 hours. Reasons to follow.”

Family Law: Custody
Richardson v. Richardson, 2019 ONCA 983, 2021 SCC 36 (39123)

Kasirer J.: “The dispute regarding the custody of the parties’ two children involved in this appeal turns on a proper appreciation of their best interest. When leave to appeal was granted, among the matters in dispute was whether the parties’ 16-year-old daughter and their 10-year-old son should live principally with the appellant in Ottawa or with the respondent in Niagara. On October 6, 2021 — one week before this hearing —, the parties wrote a joint letter to the Registrar to advise the Court of what they described as “changes with respect to the children that affect the record in this matter”. These included a statement that the parties’ daughter has resided in Ottawa for over a year and that, given her age, the respondent does not intend to take further steps to enforce the trial judge’s order regarding that child. We note further that the parties have not filed a motion for new evidence before this Court regarding the current best interests of the children. In the unusual circumstances of this appeal, and given the state of the record which the parties acknowledge as incomplete, we are of the unanimous view that the appeal should be dismissed, without costs before this Court. The appropriate forum for identifying and resolving whatever ongoing dispute may subsist between the parties is the Superior Court where, should the legal requirements be met, a variation order relating to custody and access could be sought. Given the tenor of the parties’ joint letter and the state of the record, we are unable to provide meaningful guidance on the best interests of the children in the circumstances. In the result, the appeal is dismissed, without costs before this Court.”

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