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 March 10 – April 13, 2022 inclusive.
The Chief Justice: “A majority of this Court, made of Justice Moldaver, Justice Karakatsanis, Justice Brown, Justice Kasirer and Justice Jamal, would dismiss the appeal, essentially for the reasons of the majority of the Court of Appeal, whereas myself, Justice Côté, Justice Rowe and Justice Martin would allow the appeal, essentially for the reasons of Justice Goodridge. The appeal is therefore dismissed.”
Karakatsanis J.: “This appeal as of right comes to us based on the dissent of Hoegg J.A. in the Court of Appeal of Newfoundland and Labrador. …we are all agreed to allow the appeal. …We agree that the right to elect the mode of trial is an important right that should be exercised by the accused. But we do not agree that Mr. White has shown that the circumstances of this case resulted in a miscarriage of justice. Rather, we agree with Hoegg J.A., in dissent, that ineffective assistance of counsel was not made out. Ineffective assistance has a “performance component” and a “prejudice component”: for such a claim to succeed, the appellant must establish that (1) counsel’s acts or omissions constituted incompetence; and (2) that a miscarriage of justice resulted. …While the loss of his right to elect was serious, the facts of this appeal do not rise to that standard. Indeed, if Mr. White’s convictions were set aside, and he proceeded with the same election on retrial, that could undermine public confidence in the administration of justice. Finally, even if Mr. White’s loss of his election amounted to a procedural error under s. 536(2) of the Criminal Code, the Provincial Court retained jurisdiction to hear the matter, since the court had jurisdiction “over the class of offence” under s. 686(1)(b)(iv).”
The Chief Justice: “…We are all of the view that the majority of the Court of Appeal erred in intervening in this case, and we agree in part with the reasons of Bachand J.A. When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning. While the unreasonableness of a verdict is a question of law, the assessment of credibility is a question of fact. A trial judge’s assessment of the credibility of witnesses may be rejected only where it “cannot be supported on any reasonable view of the evidence”. As Bachand J.A. correctly pointed out, the question in this case was therefore not [translation] “whether the finding that the [accused] acted out of vengeance was the only one reasonably open to the judge in light of the evidence adduced”, but rather “whether that finding is sufficiently supported by the evidence and involves no palpable and overriding error” (para. 58, citing Beaudry). As Bachand J.A. completed his remarks by noting that the trial judge could find beyond a reasonable doubt that the respondent had acted out of vengeance and not for the purpose of defending himself. We are all of the view that the majority of the Court of Appeal failed to consider the trial judge’s privileged position in assessing the evidence. …The majority could not simply substitute its opinion for that of the trial judge with respect to the assessment of the credibility of witnesses. In the absence of a reviewable error, it should have shown deference. … A verdict may be considered unreasonable where it is based on illogical or irrational reasoning, such as where the trial judge makes a finding that is essential to the verdict but incompatible with evidence that is uncontradicted and not rejected by the judge. Here, the inference drawn by the trial judge from the evidence was not incompatible with the evidence adduced. On the contrary, her approach was coherent and supported by evidence that was neither contradicted nor rejected. There were no grounds for intervention.”
For advance costs, a First Nation government that has access to resources may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. While the impecuniosity requirement is guided by the condition of necessity, pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of that First Nation government. A court may therefore consider the broader context in which a First Nation government sets priorities and makes financial decisions, accounting for competing spending commitments, restrictions on the uses of its resources, and fiduciary and good governance obligations. In appropriate cases, a First Nation government may succeed in demonstrating impecuniosity despite having access to resources whose value equals or exceeds its litigation costs. However, the threshold of impecuniosity remains high and is not easily met. The court must be able to (1) identify the applicant’s pressing needs; (2) determine what resources are required to meet those needs; (3) assess the applicant’s financial resources; and (4) identify the estimated costs of funding the litigation.
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.
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 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.
The discretion conferred on courts by s. 462.37(3) of the Criminal Code does not allow them to limit the amount of a fine in lieu to the profit made from criminal activity. In accordance with the principles set out in Lavigne, judicial discretion applies first to the decision whether or not to impose a fine and second to the determination of the value of the property (para. 35). Courts may divide the value of property among several co-accused in order to avoid a risk of double recovery. This risk arises where the Crown seeks to have a fine in lieu imposed on more than one offender in relation to the same proceeds of crime. A court can apportion the fine between co-accused if there is a risk of double recovery, if apportionment is requested by the offender and if the evidence allows this determination to be made. A fine in lieu must, in principle, be equal to the value of the property of which an offender had possession or control at some point in time. The exception to this principle, whereby an offender may be ordered to pay less than the total value of the property that was in their possession or under their control, is justified by a concern for avoiding double recovery of the value of the same property from a number of co-accused.
Under their trial management power, trial judges are permitted to control their courtroom and streamline the functioning of the trial. Trial management will generally not overlap with evidentiary rulings, but sometimes they do. This does not mean that erroneous evidentiary rulings can be justified under the guise of trial management. Here, some of the impugned rulings involved trial management decisions, while others involved a mixture of evidentiary determinations and trial management decisions. Three of the impugned rulings were free from error. The fourth ruling was erroneous in part; however, it occasioned no substantial wrong or miscarriage of justice.
Leaves to Appeal Granted
Family Law: Property Division
Anderson v. Anderson, 2021 SKCA 117 (39884)
Property division issues re family law.
Constitutional Law: Division of Powers; Cannabis
Murray-Hall v. Québec (Attorney General), 2021 QCCA 1325 (39906)
Constitutionality of cannabis regulation.
Criminal Law: DUI; Sentencing
Basque v. R., 2021 NBCA 50 (39997)
Sentencing issues re DUI.
Tax: Stock Option Donations
Groseillers v. Agence du revenu du Québec, 2021 QCCA 906 (39879)
Taxing employee stock options donated to charity.
Tax: Unused Non-Capital Losses
Deans Knight Income Corporation v. R., 2021 FCA 160 (39869)
Tax treatment of non-capital losses.