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 Feb. 16 – April 13, 2023 inclusive.

Oral Judgments

Criminal Law: Sexual Assault of a Child; Confessions
R. v. Chatillon, 2022 QCCA 1072; 2023 SCC 7 (40331)

There is a publication ban in this case. The judgment from the bench was by Chief Justice Wagner, the judgment being 6:1. The Chief Justice: “A majority of the Court is of the view that the appeal should be allowed on the sole issue of the respondent’s consent to the disclosure of his admissions, discussed by the dissenting judge at paras. 83 85 of the reasons. In the Court’s opinion, this is sufficient to dispose of the appeal. Côté J. would have dismissed the appeal, substantially for the reasons of the majority of the Court of Appeal. The appeal is allowed, the judgment of the Court of Appeal is set aside and the respondent’s conviction is restored.”

Appeals

Criminal Law: Impaired Driving
R. v. McColman, 2021 ONCA 382; 2023 SCC 8 (39826)

The key question in this case is whether Mr. McColman was a “driver” for the purpose of s. 48(1) of the Highway Traffic Act (“HTA”) at the time of the random sobriety stop. The HTA contains two definitions of the word “driver” that may apply to Mr. McColman. Section 1(1) states that “‘driver’ means a person who drives a vehicle on a highway”. By contrast, s. 48(18) provides that, within s. 48, “‘driver’ includes a person who has care or control of a motor vehicle”. In its factum, the Crown suggests that it is possible to interpret s. 48(1) such that it authorizes police to conduct random sobriety stops whenever they see someone in the care or control of a motor vehicle, irrespective of whether they intended to check the person’s sobriety on a highway. In other words, the Crown submits that s. 48(18) sets out essential elements of what constitutes a “driver”. This argument must fail for two reasons. Here, the definition in s. 1(1) is exhaustive and specifies the scope of the word “driver”, whereas the definition in s. 48(18) is non-exhaustive and expands the ordinary meaning of the defined term. Indeed, the definition of “driver” in s. 1(1) is two-pronged; it targets both an activity and the locus of such activity. To be a driver, one must be driving a vehicle (activity) and must do so on a highway (locus). The definition in s. 48(18) seeks only to expand the activity prong of the definition and not the locus element. Second, the S.C.C. has stated that, while the relative effects of ordinary meaning, context, and purpose on the interpretive process may vary, courts must seek to read the provisions of an act as a harmonious whole: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. As stated above, a non exhaustive definition does not necessarily oust other definitions. Depending on the context, exhaustive and non-exhaustive definitions can be read together. Under a harmonious reading of the two definitions of “driver”, for the purpose of s. 48(1), “driver” refers to a person who is driving, or has care or control of, a motor vehicle on a highway. A person who has care or control of a motor vehicle but who is no longer on a highway would not be a “driver” under the HTA. In the present case, Mr. McColman was not a “driver” for the purpose of s. 48(1) when he was stopped by the police. Even if it can be said that he had care or control of the ATV, he was not on a highway when the police effected the stop. Therefore, the police stop was unauthorized by s. 48(1) of the HTA. The sanctuary problem is overstated: random sobriety stops are not the only tool available to police to combat impaired driving; absent a successful constitutional challenge, the Court must respect the will of the legislature as expressed in valid legislation; it is not this Court’s role to rewrite the law or to ask what law it would have enacted itself.

Criminal Law: Search & Seizure; Extraterritoriality
R. v. McGregor, 2020 CACM 8; 2023 SCC 4 (39543)

It is unnecessary to deal with the issue of extraterritoriality to dispose of this appeal. The Canadian Forces National Investigation Service (“CFNIS”) did not violate the Charter. Working within the constraints of its authority in Virginia, the CFNIS sought the cooperation of local authorities to obtain and execute a warrant under Virginia law. The warrant which issued authorized the search, seizure, and analysis of Cpl. McGregor’s electronic devices expressly. Evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent. Although the warrant did not contemplate such evidence, the digital files in issue fell squarely within the purview of the plain view doctrine. Furthermore, the CFNIS obtained Canadian warrants before conducting an in-depth analysis of these devices.

Criminal Law: Unreasonable Verdicts
Metzger v. R., 2022 ABCA 16; 2023 SCC 5 (40285)

Considering the totality of the evidence — including the frailties herein and the absence of any other inculpatory evidence except for the presence of the appellant’s DNA on a cigarette butt — the S.C.C. is satisfied that no “trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. The verdicts were therefore unreasonable.

Criminal Law: Voyeurism; Elements of Offence
R. v. Downes, 2022 BCCA 8; 2023 SCC 6 (40045)

Properly interpreted based on its text, context, and purpose, s. 162(1)(a) has no implicit temporal component. The text of s. 162(1)(a) lacks language suggesting that Parliament intended the “place” to be evaluated at the specific time when the observation or recording was made. Further, as this Court observed in Jarvis, Parliament’s purposes in enacting the voyeurism offence were to protect individuals’ privacy and sexual integrity. Those purposes are promoted by interpreting s. 162(1)(a) without an implicit temporal component, and would be detracted from by reading in such a component. In effect, s. 162(1)(a) designates places such as bedrooms, bathrooms, and dressing rooms as “safe places” where people should be free from intrusions onto their privacy and sexual integrity, whether or not a person in the place could reasonably be expected to be nude or engaged in sexual activity at the specific time the person is surreptitiously observed or recorded.

Leaves to Appeal Granted

Bankruptcy & Insolvency: Debts Not Released by Discharge
Poonian, et al. v. British Columbia Securities Commission, 2022 BCCA 274 (40396)

Do administrative monetary penalties survive bankruptcy.

Bankruptcy & Insolvency: Ponzi Preference Claims
Scott, et al. v. Doyle Salewski Inc. in its capacity as Trustee in Bankruptcy of Golden Oaks, 2022 ONCA 509 (40399)

Application of corporate attribution doctrine to Ponzi scheme.

Charter: s. 24 Damages
Attorney General of Canada v. Power, 2022 NBCA 14 (40241)

Liability of government for s. 24 damages.

Criminal Law/Media: Confidentiality Orders
Canadian Broadcasting Corporation, et al. v. R., 2022 QCCA 984 (40371)

Confidential orders re police informers.

Criminal Law: Police Texting as Dealer
Campbell v. R., 2022 ONCA 666 (40465)

Reasonable expectation of privacy vs exigent circumstances doctrine.

International Law/Banks: Jurisdiction
Eurobank Ergasias S.A. v. Bombardier Inc., et al., 2022 QCCA 802 (40350)

Enforceability of bank letter of counter-guarantee.

Labour Law: Grievances; Privacy
York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2022 ONCA 476 (40360)

Section 8 search & seizure protection for public school teachers.

Municipal Law: Constructive Expropriation
City of St. John’s v. Lynch, et al., 2022 NLCA 29 (40302)

Compensation for constructive expropriation.

Tax/Federal Court: Motions to Strike
Iris Technologies Inc. v. Canada (Attorney General), 2022 CAF 101 (40346)

Striking out applications for judicial review for being a collateral attack on tax assessment.

Tax: Tax Court v. Federal Court
Dow Chemical Canada ULC v. R., 2022 FCA 70 (40276)

Jurisdiction of Tax Court v. Federal Court re tax.

Torts: MVA Benefits
Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 (40348)

Issues re accident benefits following MVA’s.