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 10 – May 21, 2021 inclusive.


Aboriginal Law: Hunting Rights
R. v. Desautel, 2019 BCCA 151, 2021 SCC 17 (38734)

Whether a group is an Aboriginal people of Canada is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the Van der Peet test. But this threshold question does not arise in every case. In most cases there is no doubt that the claimant belongs to an Aboriginal people of Canada, so there is no need to address the threshold question. The threshold question is likely to arise only where there is some ground for doubt, such as where the group is located outside of Canada. It should not be construed as an additional burden on rights claimants that has to be satisfied in every case. A consistent development of this Court’s s. 35(1) jurisprudence requires that groups located outside Canada can be Aboriginal peoples of Canada.

Churches: Jurisdiction
Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2020 ONCA 10, 2021 SCC 22 (39094)

Jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. Here, the only viable candidate for a legal right justifying judicial intervention is contract. The finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required. In this case, evidence of an objective intention to enter into legal relations is missing. As such, there is no contract, there is no jurisdiction, and there is no genuine issue requiring a trial.

Criminal Law: Prosecutorial Immunity
Ontario (Attorney General) v. Clark, 2019 ONCA 311, 2021 SCC 18 (38687)

One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police. The police role is to investigate crime. The Crown prosecutor’s role, on the other hand, is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused. Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’s compliance with his or her public duties.

Criminal Law: Sexual Assault by Young Person; Appeals as of Right
R. v. C.P., 2019 ONCA 85; 2021 SCC 19 (38546)

This is a challenge to the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which denies young persons rights of appeal available to all adults convicted of indictable offences, namely an automatic right to appeal to the Supreme Court of Canada when there is a dissent in the court of appeal on a question of law or when the court of appeal enters a finding of guilt on a Crown appeal from an acquittal at trial. Under the YCJA, they are not available to young persons in the criminal justice system. The limitation in s. 37(10) constitutes a prima facie breach of s. 15 that cannot be justified under s. 1.

Criminal Law: Sexual Assault; Capacity to Consent; Sufficiency of Reasons
R. v. G.F., 2019 ONCA 493; 2021 SCC 20 (38801)

Only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go further and ask whether that consent is otherwise vitiated. Vitiation was not at issue in this case; the only live issue was whether the complainant subjectively consented. This Court has consistently reiterated the importance of a functional and contextual reading of the trial judge’s reasons. The duty of the appellate court is to determine whether the aggrieved party understands what the trial judge decided and why, and whether the reasons permit appellate review. In this case, the trial judge’s reasons were sufficient to satisfy this purpose.

Oral Judgments

Criminal Law: Prior Inconsistent Statements
R. v. Smith, 2020 BCCA 271, 2021 SCC 16 (39401)

Brown J.: “We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. In particular, we agree with Dickson J.A. that the trial judge’s failure to deal properly with the prior inconsistent statements does not mean that she failed to consider or give effect to them (R. v. Burns, [1994] 1 S.C.R. 656, at p. 665). Further, and even if the trial judge did not consider the statements in assessing the complainant’s credibility and reliability, that error did not cause a miscarriage of justice. Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221). It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7). While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard. In this case, we agree with Dickson J.A. that the inconsistencies — assuming they are inconsistencies — between the complainant’s statements to her friend shortly after the assault and her trial testimony are not significant. While it may have been preferable for the trial judge to address them, her failure to do so does not cast doubt on her assessment of the complainant’s credibility and reliability or the safety of the conviction. Consequently, the threshold for a miscarriage of justice has not been met.”

Criminal Law: Fraud; s.9 Canada Evidence Act
R. v. Sheikh, 2020 QCCA 1266, 2021 SCC 13 (39372)

The Chief Justice: “The Crown appeals as of right from a decision in which a majority of the judges of the Quebec Court of Appeal acquitted the Respondent on charges of fraud against him. The Crown submits that the Court of Appeal erred in concluding that the verdict of guilty was unreasonable and that the trial was unfair because, in particular, of the Crown’s failure to have recourse to s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5, during the testimony of witness Vallières, and of an inadequate assessment of the circumstantial evidence. Essentially for the reasons of Schrager J.A., a majority of judges of this Court are not convinced that the Crown’s failure to have recourse to s. 9 of the Canada Evidence Act made the trial unfair, and they agree with Schrager J.A. that the verdict was not unreasonable. Kasirer J., essentially for the reasons of the majority of the Court of Appeal, would have dismissed the appeal. For these reasons, the appeal is allowed and the verdict of guilty restored.”

Criminal Law: Internet Child Luring
R. v. Ghotra, 2020 ONCA 373, 2021 SCC 12 (39215)

The Chief Justice: “We are all of the view to dismiss the appeal for the reasons of Justice Miller of the Ontario Court of Appeal.”

Criminal Law: Sexual Assault; R. v. (W.)D.; Similar Fact Evidence
R. v. Gul, 2020 QCCA 1557, 2021 SCC 14 (39414)

The Chief Justice (Moldaver and Kasirer JJ. concurring): “The appellant appeals as of right from a decision in which a majority of the Quebec Court of Appeal upheld a verdict of guilty entered by the trial judge. A majority of judges of this Court would, for the reasons of Savard C.J.Q. and Schrager J.A., and in particular for the reasons set out at para. 44 of the Court of Appeal’s decision, dismiss the appeal.” Rowe J. (Brown J. concurring): “The Crown acknowledges, and we agree with the Québec Court of Appeal, that the trial judge erred in characterizing a prior event as [translation] “probative evidence of past misconduct” (2018 QCCQ 7257, at para. 21 (CanLII)). However, unlike our colleagues, we are of the view that the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, cannot apply. At para. 21 of his reasons, the trial judge explained that the evidence in question was probative to “demonstrate similarity of conduct, determine the credibility of the accused, establish the identity of the offender and enhance the credibility of the complainant, because her version is contradicted by that of the accused”. In our view, because the assessment of the credibility of the accused and of the complainant was central to the case, this is not a situation in which the Crown’s evidence was overwhelming and conviction was inevitable. As this Court held in R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82, whether the evidence against an accused is overwhelming is a higher standard than the requirement that the Crown prove its case beyond a reasonable doubt. For these reasons, we would therefore have allowed the appeal and ordered a new trial on the same charges.”

Criminal Law: Sexual Offences re a Minor
R. v. Ramos, 2020 MBCA 111, 2021 SCC 15 (39466)

The Chief Justice: “We are all of the view, for the reasons of Justice Mainella of the Court of Appeal of Manitoba, to dismiss the appeal.”

Leaves to Appeal Granted

Copyright: “Making Available”
Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al., 2020 FCA 100 (39418)

Interpretation of “making available” in the copyright context.

Criminal Law: Conspiracy to Launder
R. v. Ste-Marie, et al., 2020 QCCA 1118 (39381)

Criminal law conspiracy to launder and delay issues.

Criminal Law: “Fresh Start” Arrests
Beaver v. R., 2020 ABCA 203 (39480)

When can an arrest be a “fresh start” for Charter purposes.

Criminal Law: “Fresh Start” Arrests
Lambert v. R., 2020 ABCA 203 (39481)

When can an arrest be a “fresh start” for Charter purposes.

Criminal Law: Sexual Assault
E.N. v. R., 2020 ABCA 307 (39360)

Constitutionality of sex offender registration.

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

Publication ban; sexual offences against minors.

Family Law: Mobility
Barendregt v. Grebliunas, 2021 BCCA 11 (39533)

Test for admitting fresh evidence in custody mobility case.

Intellectual Property: Patents
Nova Chemicals Corporation v. Dow Chemical Company, et al., 2020 FCA 141 (39439)

Damage calculation re patent infringement.

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