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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 April 14 – May 18, 2022 inclusive.

Oral Judgments

Criminal Law: Delay
R. v. Safdar, 2021 ONCA 207; 2022 SCC 21 (39629)

Brown J.: “The appellant, Syed Adeel Safdar, was tried for offences related to the abuse of his wife. At the conclusion of evidence and submissions, he applied for a stay based on a breach of … s. 11(b) … to be tried within a reasonable time. The trial judge heard the application while preparing his decision on the trial proper, then reserved that decision and granted the stay. …The Crown appealed the stay order, arguing that, on the authority of this Court’s decision in R. v. K.G.K., 2020 SCC 7 (which was not available to the trial judge), the trial judge had erred by including as part of the total delay the period from the end of the evidence and argument to the release of the stay decision. Absent that error, the total delay fell under 30 months. The Court of Appeal for Ontario agreed, set aside the stay order and referred the matter back to the trial judge to release his decision on the trial proper. …. We agree with the Court of Appeal that K.G.K. is dispositive of the central issue in this appeal. For the purposes of determining whether the total delay exceeded the Jordan presumptive ceiling, the time between the conclusion of evidence and argument, and the bringing of the s. 11(b) application in this case, should not have been counted. Nor, in our view, and despite Mr. Hasan’s able submissions before us, has Mr. Safdar established that the total delay of 29.25 months was markedly longer than reasonable delay in the broader context of the trial … taking into account the length of time taken for the application, the moderate complexity of the case, and other institutional factors that he raises. … We also agree with the Court of Appeal’s disposition of the other issues raised by Mr. Safdar in this appeal, substantially for the reasons it gives. The appeal is dismissed.”

Criminal Law: Spontaneous Utterances Re Identification
R. v. Badger, 2021 SKCA 118; 2022 SCC 20 (39844)

Moldaver J.: “A majority of the Court would dismiss the appeal, substantially for the reasons of the majority of the Saskatchewan Court of Appeal. Justices Karakatsanis and Martin would allow the appeal, substantially for the reasons of the dissenting judge of the Court of Appeal.”

Appeals

Criminal Law: Homicide & Bodily Harm re Foster Children; Jury Charges
R. v. Goforth, 2021 SKCA 20; 2022 SCC 25 (39568)

The S.C.C. allowed the appeal on Dec. 7, 2021with reasons to follow. Below is a summary of those reasons, released on Friday, June 10, 2022.

The majority of the Court of Appeal below erred by failing to take a functional approach in its assessment of the jury charge. An accused is entitled to a jury that is properly — and not necessarily perfectly — instructed. While the charge was not perfect, the jury was nonetheless properly instructed. The trial judge did not make a clear distinction between the required foreseeability standard for s. 215 and the required foreseeability standard for manslaughter or unlawfully causing bodily harm. She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences. The imprecise juxtaposition of different mens rea requirements should be avoided. It could potentially confuse the jury and could potentially necessitate a new trial in a different set of circumstances. However, in the circumstances of this case, there is no reasonable possibility that the jury was confused about the required mens rea for s. 215 or misled about what the Crown had to prove in order for the jury to find either manslaughter or unlawfully causing bodily harm.

Criminal Law: Parole Ineligibility
R. v. Bissonnette, 2020 QCCA 1585; 2022 SCC 23 (39544)

Consecutive parole ineligibility is contrary to s. 12 of the Charter and not saved under s. 1. It is therefore not necessary to consider the alleged infringement of s. 7. Section 12 prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.

Family Law: Child Protection
B.J.T. v. J.D., 2020 PECA 14; 2022 SCC 24 (39558)

The S.C.C. allowed the appeal on Dec. 2, 2021with reasons to follow. Below is a summary of those reasons, released on Friday, June 3, 2022.

The S.C.C. set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother. As to the applicable standard of review when assessing a hearing judge’s conclusions concerning custody in a child welfare context, Van de Perre v. Edward [2001] 2 S.C.R. 1014, at para. 11, citing Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12, governs: an appellate court is not entitled to intervene unless there has been “a material error, a serious misapprehension of the evidence, or an error in law”. To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate the individual factors in slightly different ways. It is a highly contextual and fact driven exercise that involves a high level of judicial discretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process. An appellate court is not permitted to redo a lower court’s analysis to achieve a result that it believes is preferable in the best interests of the child. A child protection agency’s conduct can provide crucial context for understanding the status quo and the position taken by the agency in the proceedings. Courts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whether arising from a private dispute, an adoption, or the state’s apprehension of children in need of protection. Statutory factors are non-exhaustive.

Family Law: Post-Trial Evidence; Mobility
Barendregt v. Grebliunas, 2021 BCCA 11; 2022 SCC 22 (39533)

The Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of new evidence on appeal. Instead, it applied a different test and admitted the evidence. It erred in doing so. The evidence did not satisfy the Palmer criteria. The respondent sought to overturn an unfavourable trial outcome by adducing evidence on appeal that could have been available at first instance, had he acted with due diligence. Effectively, he was allowed to remedy the deficiencies in his trial evidence on appeal — with the benefit, and guidance, of the trial reasons. This gave rise to considerable unfairness. And in any event, evidence in family law appeals that is tendered for the purpose of showing a material change of circumstances is more appropriately raised at a variation hearing. A moving parent’s reasons for relocation and the “maximum contact factor” are relevant only to the extent they bear upon the best interests of the child; a parent’s testimony about whether they will move regardless of the outcome of the relocation application should not be considered; and family violence is a significant factor impacting the best interests of the child. In the absence of any reviewable error, the Court of Appeal was wrong to intervene. The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate.

Leaves to Appeal Granted

Criminal Law: Sexual Interference; Child Luring; Mandatory Minimums
R. v. M.B.M., 2021 QCCA 1285 (39935)

Mandatory minimums re sexual offences.

Freedom of Information: Disclosure
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) et al., 2022 ONCA 74 (40078)

Freedom-of-information requests by media.

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