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 July 14 – Aug. 17, 2022 inclusive.


Criminal Law: Sexual Assault; Consent
R. v. Kirkpatrick, 2020 BCCA 13; 2022 SCC 33 (39287)

The legal question here is: should condom use form part of the “sexual activity in question” to which a person may provide voluntary agreement under s. 273.1(1) of the Criminal Code. Or alternatively, is condom use always irrelevant to the presence or absence of consent under s. 273.1(1), meaning that there is consent but it may be vitiated if it rises to the level of fraud under s. 265(3)(c)? When consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom.

Copyright: Royalties
Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2020 FCA 100; 2022 SCC 30 (39418)

The S.C.C. disagrees with the Board’s interpretation of s. 2.4(1.1). The reading most consistent with the text, structure, purpose and context of s. 2.4(1.1) is s. 2.4(1.1) clarifies that: s. 3(1)(f) applies to on-demand streams; a work is performed as soon as it is made available for on-demand streaming. This interpretation gives effect to Canada’s obligations under art. 8. There is no way to download a work, stream a work, or make a work available for on-demand streaming or downloading that does not engage one of the author’s exclusive rights in s. 3(1). This interpretation is also technologically neutral. Similar to offline distributions, downloading or streaming works will continue to engage only one copyright interest and require paying one royalty — a reproduction royalty for downloads or a performance royalty for streams. If a work is downloaded or made available for downloading, s. 3(1)(f) is not engaged. A work made available for streaming and later streamed, s. 3(1)(f) is only engaged once. The value of these rights is not in issue herein. Setting the appropriate royalties to compensate authors when these rights are engaged is a matter for the Board to decide. Similarly, the considerations that a court might have regard to in assessing monetary remedies for infringement is a matter to be decided if and when such a case arises.

Criminal Law: Murder 1
Sundman v. R., 2021 BCCA 53; 2022 SCC 31 (39569)

Section 231(5) requires (1) an underlying crime of domination; (2) murder; (3) substantial cause; (4) no intervening act; and (5) the same transaction. In some cases, the S.C.C. applied the “single transaction” test under s. 231(5) by asking whether the underlying offence of domination and the murder have a close “temporal and causal” connection. The S.C.C.’s decisions do not suggest the “single transaction” test articulated in Stevens and the temporal-causal connection approach involve different inquiries; they are simply different ways of addressing the “same transaction” element. These two approaches have been used interchangeably in the jurisprudence. Accordingly, properly applied, the single transaction test and temporal causal connection approach involve the same inquiry and will result in the same conclusion. When a single transaction is found, there will necessarily be a temporal causal connection. Likewise, when a temporal-causal connection is found, there will necessarily be a single transaction. Finally, the S.C.C. has previously ruled that the underlying offence of domination and the killing must involve two distinct criminal acts.

Criminal Law: Right to Counsel
R. v. Lafrance, 2022 SCC 32 (39570)

All three Grant factors — the circumstances giving rise to the encounter, the nature of the police conduct, and the particular characteristics or circumstances of the individual — weigh decisively here, on the facts of this case, in favour of finding that Mr. Lafrance was first detained when he, a young Indigenous man with minimal police exposure, was awoken in the early morning by the police inside his home, and commanded to get dressed and leave. He continued to be detained throughout the encounter, including outside the home, in the police van and in the interview room of the police station, all of which involved the near-continuous supervision and presence of the police, until the conclusion of his interview. Police were required to inform him of his s. 10(b) right to counsel and to afford him the opportunity of exercising it, and breached that right by failing to do so. Right to counsel was breached by refusing to provide another opportunity to consult with a lawyer despite there being reason to conclude that he had not understood his s. 10(b) advice, even after having spoken with Legal Aid. The evidence obtained as a result of the breaches is excluded.

Leaves to Appeal Granted

Criminal Law: Sexual Assault
R. v. K., 2022 BCCA 18 (40095)

Evidentiary requirements for sexual assault prosecution.

Criminal Law: Sexual Offences
R.K.K. v. R., 2022 BCCA 17 (40085)

There is a publication ban in this case, in the context of convictions for sexual assault and extortion.

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