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 April 14 – May 18, 2022 inclusive.

Oral Judgments

Criminal Law: Provocation
R. v. Alas, 2021 ONCA 224; 2022 SCC 14 (39654)

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

Criminal Law: R. v. W.(D.); Credibility
R. v. Gerrard, 2021 NSCA 59; 2022 SCC 13 (39874)

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


Criminal Law: Extreme Intoxication/Automatism
R. v. Brown, 2021 ABCA 273; 2022 SCC 18 (39781)

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

Criminal Law: Extreme Intoxication/Automatism; “Horizontal” Stare Decisis
R. v. Sullivan, 2020 ONCA 333; 2022 SCC 19 (39270)

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

Criminal Law: Right to Counsel
R. v. Dussault, 2020 QCCA 746; 2022 SCC 16 (39330)

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

Criminal Law: Search & Seizure; Mistake of Law
R. v. Tim, 2020 ABCA 469; 2022 SCC 12 (39525)

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

Criminal Law: Search Incident to Arrest
R. v. Stairs, 2020 ONCA 678; 2022 SCC 11 (39416)

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

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

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

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

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

Criminal Law: Trial Continued by Another Judge
R. v. J.D.,2020 QCCA 1108; 2022 SCC 15 (39370)

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

Criminal Law: Trial Delay; Retrial Delay
R. v. J.F., 2020 QCCA 666; 2022 SCC 17 (39267)

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

Leaves to Appeal Granted

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

Language issues re non-rights holder parents.

Constitutional/Aboriginal Law: s. 15; Residency
Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5 (39856)

Residency election requirement.

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

Consideration of duties of honesty, loyalty and integrity re sale of shares.

Criminal Law: Right to Counsel
Brunelle, et al. v. R., 2021 QCCA 1317 (39917)

Procedure re multi-accused right to counsel.

Securities: Pump & Dump; Jurisdiction
Langford-Sharp, et al. v. Autorité des marchés financiers, et al., 2021 QCCA 1364 (39920)

Jurisdiction issues re securities “pump & dump” litigation.

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