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 October 27 – November 16, 2023 inclusive.
Kasirer J.: “We are all of the view that the majority in the Court of Appeal was correct to conclude that party liability was properly left to the jury by the trial judge. The evidence on the record provided party liability with an air of reality. We agree, however, with Nordheimer J.A., dissenting, that the trial judge erred in law in his instructions on party liability. In one part of the charge, the judge gave instructions that resembled co-principal liability, but said he was instructing on aiding. In other parts of the charge, the jury was given partially correct instructions on aiding. We share Nordheimer J.A.’s view that the jury was never clearly told that the appellant would have needed to know that the principal intended to kill the victims in a planned and deliberate manner in order to be liable for first degree murder as an aider. That said, we would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, because these errors were harmless. There is no reasonable possibility that the jury would have reached a different verdict had these errors not been made (see R. v. Abdullahi, 2023 SCC 19, at para. 33; R. v. Sarrazin, 2011 SCC 54,  3 S.C.R. 505, at para. 25). The evidence that supported party liability was the same as the evidence for co-principal liability. Moreover, the appellant’s defence was not undermined by the jury charge. Accordingly, we would dismiss the appeal.”
Criminal Law: Wrongful Conviction
Canadian Broadcasting Corp. v. Manitoba, 2018 MBCA 125 (38992)
Appeal heard and judgment rendered: October 19, 2023. Reasons for judgment: to follow.
The Chief Justice: “We are all of the view that the appeal should be dismissed. Therefore, the appeal is dismissed with reasons to follow, the whole without costs.”
The question is whether and, if so, how an automatic publication ban applies before the jury is empanelled, given the jurisdiction conferred by s. 645(5) of the Criminal Code on trial judges to deal with certain matters before the empanelment of the jury. The S.C.C. concluded that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5). This conclusion follows from an understanding of the text of s. 648(1) when considered in its full context and in light of Parliament’s purpose. This interpretation does not expand the coverage of the publication ban: only matters that were captured by the ban prior to the enactment of s. 645(5) continue to be captured by it today. This interpretation has not “evolved” or “changed” in a way that departs from any previous meaning held by s. 648(1). Section 648(1) was designed to safeguard the right to a fair trial by averting jury bias and by ensuring the efficiency of our system of trial by jury. This is consistent with this Court’s existing conception of trial fairness as being concerned not only with averting jury bias by banning “pre-trial” publicity but also with protecting the accused’s other fundamental interests.
The complex environmental legislative scheme at issue in this appeal is unconstitutional in part. The scheme is essentially two schemes in one. First, a discrete portion of the scheme — contained in ss. 81 to 91 of the Impact Assessment Act — deals with projects carried out or financed by federal authorities on federal lands or outside Canada. In pith and substance, this portion of the scheme directs the manner in which federal authorities assess the significant adverse environmental effects that such projects may have. This portion of the scheme is clearly intra vires. But the balance of the scheme — made up of the IAA’s remaining provisions and the Regulations — deals with “designated projects” as defined in the IAA. The pith and substance of this designated projects scheme is to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts. Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme. This scheme is ultra vires for two overarching reasons: it is not in pith and substance directed at regulating “effects within federal jurisdiction” as defined in the IAA because these effects do not drive the scheme’s decision-making functions; the defined term “effects within federal jurisdiction” aligns with federal legislative jurisdiction. The overbreadth of these effects exacerbates the constitutional frailties of the scheme’s decision-making functions.
Leaves to Appeal Granted
Aboriginal Law: Policing Costs
Attorney General of Québec v. Pekuakamiulnuatsh Takuhikan, 2023 FC 267 (40619)
Policing costs for Aboriginal groups.
Family Law: Support Guidelines
Auer v. Auer, et al., 2022 ABCA 375 (40582)
Constitutionality of Federal Child Support Guidelines.
Municipal Law: Tax
TransAlta Generation Partnership, et al. v. His Majesty the King in Right of the Province of Alberta, et al., 2022 ABCA 381 (40570)
Taxation of municipal “linear property”.