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 October 27 – November 16, 2023 inclusive.

Oral Judgment

Criminal Law: Assault; Defence
R. v. Lindsay, 2022 ABCA 424; 2023 SCC 33 (40569)

Jamal J.: “We are all of the view that the appeal should be dismissed. We do not accept the appellant’s submission that the trial judge misinterpreted the concession of defence counsel that if an assault occurred, it was an aggravated assault. The appellant did not raise this as a ground of appeal before the Court of Appeal. The appellant now claims that the trial judge interpreted this concession as meaning that he did not need to decide whether the Crown had proved the elements of aggravated assault. We disagree. Reading the judgment as a whole, the trial judge concluded that the appellant committed aggravated assault when he intentionally struck and threw the person in his custody to the ground. As the majority of the Court of Appeal correctly noted, based on the trial judge’s reasons, “the pathway to conviction is clear and based on the correct application of relevant legal principles” (para. 6). A trial judge is presumed to know the law and is entitled to focus on the live issues at trial. In our view, the trial judge’s reasons are sufficient in law (see R. v. G.F., 2021 SCC 20, at para. 74). Nor do we accept the appellant’s argument that the trial judge erred in concluding that s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46, did not provide a defence for the appellant’s use of force against the individual. Section 25(1) “essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34). … In our view, the trial judge’s findings of fact. In our view, the trial judge was entitled to find on the evidence before him that the appellant had no reasonable grounds to strike the person initially, and that his use of force in striking him three more times in the head and then throwing him to the ground was unnecessary and excessive on a proper standard. The trial judge’s findings of fact were amply supported by the record.”

Criminal Law: Intent for Murder; After-the-Fact Conduct
R. v. Lawlor, 2022 ONCA 645; 2023 SCC 34 (40500)

O’Bonsawin J. (Rowe, Martin and Moreau JJ. concurring): “This is an appeal from R. v. Lawlor, 2022 ONCA 645, 418 C.C.C. (3d) 87, in which the majority dismissed an appeal by Derrick Lawlor of his conviction for first degree murder by a jury. The majority in the Ontario Court of Appeal dismissed the appeal; Justice Nordheimer would have allowed the appeal and ordered a new trial. Only two grounds of appeal are before this Court. The first is whether the trial judge erred in his instructions to the jury regarding the use of evidence as to the accused’s mental health and the requisite intent for first degree murder. The second relates to evidence of after-the-fact conduct. A majority of this Court would allow the appeal on the ground relating to the requisite intent for murder and for first degree murder, but not on the ground relating to after-the-fact conduct. As to the first ground, we are in substantial agreement with the reasons of Justice Nordheimer. As to the second ground, we are in substantial agreement with the reasons of the Ontario Court of Appeal majority. … the appeal is allowed, the conviction is set aside and a new trial is ordered.” Kasirer J.: “I would dismiss the appeal … In sum, in respect of both the mental health and the after-the-fact evidence, I see no reviewable errors in the jury charge and, on these points, I would adopt the majority reasons of van Rensburg J.A. as my own, without reserve.”

Criminal Law: Sexual Assault; Closing Argument
R. v. B.E.M., 2022 ABCA 207; 2023 SCC 32 (40221)

Kasirer J.: “We are all of the view that the appeal should be dismissed. It is common ground that, in closing submissions to the jury, Crown counsel should not have recounted an anecdote about a personal childhood memory that had no connection to the evidence (see Pisani v. The Queen, [1971] S.C.R. 738, at p. 740). Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel. … [T]he majority of the Court of Appeal was correct to conclude that this error did not result in an unfair trial or a miscarriage of justice in this case. Both the majority and the dissent relied on the relevant factors set out in R. v. Stephan, 2017 ABCA 380, 61 Alta. L.R. (6th) 26, rev’d on other grounds 2018 SCC 21, [2018] 1 S.C.R. 633, but disagreed on their application. At issue before the jury was both the veracity and accuracy of the complainant’s own memory of the events relating to the sexual assaults she allegedly suffered as a child. The defence argued that these events never took place and challenged the complainant’s recollections as uneven. Insofar as this challenged the complainant’s version of events as lacking both credibility and reliability, the improper comments of Crown counsel were potentially serious as they touched on a core issue at the trial. That said, the context of the anecdote considerably limited its prejudicial effect. … In sum, we agree with the view that Crown counsel’s improper anecdote did not render the appellant’s trial unfair.”

Appeals

Commercial Law: Duty To Inform
Ponce v. Société d’investissements Rhéaume ltée, 2021 QCCA 1363; 2023 SCC 25 (39931)

Each of the three criteria set out in Bail (paras. 87‑91) are satisfied. However, disgorgement of profits without regard to injury is not an appropriate remedy in this case; the sanction requested is to compensate for a wrong; the demand is not simply for restitution of profits, much less for disgorgement of profits for a confiscatory or punitive purpose, a remedy that would potentially deviate from the general law of civil liability. It is thus appropriate to assess, on the basis of the respondents’ alternative argument, the quantum of the damages to be awarded to them to compensate for the loss they claim to have suffered. Because the presumption in Baxter has not been rebutted, the damages owed to the respondents are equivalent to the difference between the sale price received by the appellants on the resale and the price received by the respondents on the initial sale to the appellants.

Criminal Law: Child Luring; Mandatory Minimums
R. v. Marchand, 2021 QCCA 1285; 2022 QCCA 16; 2023 SCC 26 (39935)(40093)

1. v. Friesen, 2020 SCC 9 articulates the various serious and potentially life-long consequences associated with sexual violence against children; the distinct harms of the child luring offence and its full gravity animates the governing sentencing principles and informs their constitutional status. In Mr. Marchand’s case, after applying the correct sentencing principles, his sentence is increased from five months to one year imprisonment, served consecutively, not concurrently, to the other offence for which he was sentenced. In H.V.’s matter, the fitness of the sentence was not challenged in the S.C.C. A thorough analysis reveals that these mandatory minimum sentences infringe the Charter’s s. 12 protection against cruel and unusual punishment. Based on the distinct and insidious psychological damage luring generates, in some cases the appropriate penalty for child luring will be imprisonment for a period equal to or longer than that set out in the unconstitutional mandatory minimum sentences.

Criminal Law: Search & Seizure; Arrest
R. v. Zacharias, 2022 ABCA 112; 2023 SCC 30 (40117)

The accused was pulled over in a traffic stop because of a burnt‑out light and illegally tinted windows. The police officer made several observations that resulted in investigative detention and calling for a sniffer dog to scan for drugs. After a pat‑down search, the officer placed the accused in a police vehicle until the sniffer dog arrived. The dog signalled that drugs were present and the accused was arrested for possession of a controlled substance. The police then searched the accused’s truck, including duffel bags located in the truck box under a tonneau cover. The police discovered a large quantity of cannabis and cash. The accused was arrested for possession for the purposes, handcuffed, and driven to a police detachment. He was then searched and arrested for possession of proceeds of crime. The arrests that followed the sniffer search were in violation of the Charter. While the arrests and searches incident to arrest in this case constituted additional violations of the Charter, the S.C.C. affirmed the decision not to exclude the evidence under s. 24(2) of the Charter. A “consequential” breach is not a new “type” of Charter breach; it will not be necessary or useful in every case to determine whether the sequence of state conduct presents a “consequential” breach; but this operates as guidance for cases where an arrest follows as a consequence of a search, and both are viewed as unlawful on judicial review. s. 24(2) analysis does not become a rule of automatic exclusion, while at the same time, the court takes fully into account the impact on the Charter-protected interests of the accused.

Criminal Law: Wrongful Convictions; Publication Bans
Canadian Broadcasting Corp. v. Manitoba, 2018 MBCA 125; 2023 SCC 27 (38992)

During wrongful conviction proceedings before the Court of Appeal, an accused sought to introduce as new evidence an affidavit concerning the death of a witness involved in those proceedings. The Court of Appeal issued a publication ban over the affidavit and ordered the publication ban remain in effect. Under Sherman, “the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.” The first branch of the Sherman test is satisfied because court openness would pose a serious risk to the spouse’s dignity as an important public interest. The publication ban is necessary to prevent a serious risk to the important public interest of protecting the dignity of the witness’s spouse; the second branch of the test is therefore satisfied. As to the third branch, the benefits of the publication ban significantly outweigh its minimal deleterious effect on the right of free expression and, by extension, the principle of open and accessible court proceedings.

Language Rights: Ministerial Discretion
Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2021 NWTCA 8; 2023 SCC 31 (39915)

Five parents not holding the right guaranteed by s. 23 of the Charter to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the Minister of Education, Culture and Employment of the Northwest Territories (“Minister”) for their children’s admission to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord‑Ouest (“CSFTNO”) recommended admission because it would promote the development of the Francophone community of the Northwest Territories. In spite of those recommendations, the Minister denied each of the applications for admission on the ground that the non‑rights holder parents did not meet the conditions established by the ministerial directive on enrolment in French first language education programs, which created categories of eligible non‑rights holders. The S.C.C. held that Section 23 has two features that make it stand out from the rest of Canada’s constitutional landscape. First, unlike certain other constitutional provisions that impose only negative obligations, s. 23 imposes positive obligations on the state. Second, s. 23 differs from other provisions of the Charter because of the collective scope of the individual rights it grants.

Municipal/ Criminal Law: Definition of “Employer”; Due Diligence
R. v. Greater Sudbury (City), 2021 ONCA 252; 2023 SCC 28 (39754)

The City of Sudbury contracted with Interpaving Limited to act as constructor to repair a downtown water main. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader, in reverse, through an intersection. The Ministry charged the City under s. 25(1)(c) of Ontario’s Occupational Health and Safety Act for failing to ensure that certain safety requirements of the accompanying regulation, Construction Projects (“Regulation”), had been met. The City conceded it was the owner of the construction project and acknowledged that it sent its quality control inspectors to the project site to oversee Interpaving’s contract compliance, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving. In summary, a court must consider three questions where an owner who contracts for the services of a constructor on a construction project is prosecuted for a breach of s. 25(1)(c): First, has the Ministry proven beyond a reasonable doubt that the Act applied to the accused because the accused was an employer under s. 1(1) of the Act? An owner is an employer if it (i) employed workers at a workplace where an alleged breach of s. 25(1)(c) occurred; or (ii) contracted for the services of a worker at that workplace (including for the services of a constructor); the Ministry is not required to prove that the owner had control over the workplace or the workers there. Second, has the Ministry proven beyond a reasonable doubt that the accused breached s. 25(1)(c) of the Act? There is a breach of s. 25(1)(c) if the safety measures prescribed by the Regulation are not carried out in the workplace to which the owner/employer is connected by a contractual relationship with employees or an independent contractor; further, the Ministry is not required to prove that the owner had control over the workplace or the workers there. Third, if the Ministry proves the above, has the accused proven on a balance of probabilities that it should avoid liability because it exercised due diligence under s. 66(3)(b) of the Act? Relevant considerations may include, but are not limited to, (i) the accused’s degree of control over the workplace or the workers there; (ii) whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation; (iii) whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services; and (iv) whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace.

Securities/Civil Litigation: Jurisdiction; Extraterritoriality
Sharp v. Autorité des marchés financiers, 2021 QCCA 1364; 2023 SCC 29 (39920)

Four British Columbia residents (“defendants”) are alleged by the administrative agency that regulates Québec’s financial sector, the Autorité des marchés financiers (“AMF”), to have engaged in a transnational “pump‑and‑dump” securities manipulation scheme. The defendants allegedly acted in concert to (1) acquire the shares of a shell company, (2) give it a legitimate face, (3) promote its business, (4) sell their shares for a profit, and (5) distribute this profit among themselves. The AMF also alleged the scheme had several ties to Québec sufficient to apply Québec’s securities regulatory scheme to the defendants: the shell company was a reporting issuer in Québec with a Montréal business address; its director was a Québec resident when the scheme was implemented; its promotional activities were accessible to Québec residents; and, ultimately, Québec investors lost money. The AMF brought an originating pleading before Québec’s Financial Markets Administrative Tribunal (“FMAT”) alleging that the defendants contravened the Québec Securities Act. The Qué. C.A. concluded the real and substantial connection test in Unifund addresses the constitutional applicability of the Québec securities scheme to non‑residents who allegedly engaged in a securities manipulation scheme with connections to Québec, and the FMAT correctly concluded there is a real and substantial connection between Québec and the defendants and properly assumed jurisdiction; although the Civil Code of Québec (“C.C.Q.”) acts as suppletive law for many matters, including certain aspects of public law, the private international law rules in Book Ten of the C.C.Q. do not apply when no private rights are at issue. The S.C.C. dismissed the appeal.

Leaves to Appeal Granted

Aboriginal Law: Métis; Duty to Consult
Government of Saskatchewan – Minister of Environment v. Métis Nation – Saskatchewan, et al., 2023 SKCA 35 (40740)

Duty to consult Métis re mining permits.

Bankruptcy: Student Loans
Piekut v. R., in Right of Canada as Represented by the Minister of National Revenue, 2023 BCCA 181 (40782)

Student loans in bankruptcy context.

Class Actions: Opioids
Sanis Health Inc., et al. v. His Majesty the King in Right of the Province of British Columbia, 2023 BCCA 306 (40864)

Class actions re opioid cost recovery.

Criminal Law: Fitness to Stand Trial
Bharwani v. R., 2023 ONCA 203 (40781)

Fitness to stand trial issues.

Criminal Law: Homicide; Attempted Homicide
R. v. Pan, et al., 2023 ONCA 362 (40839)

Issues re home invasion, homicide/attempted homicide.

Criminal Law: Non-Jury Trials; Prosecutorial/Judicial Discretion
Varennes v. R., 2023 QCCA 136 (40662)

Prosecutorial/judicial discretion re judge alone.

Criminal Law: Wrongful Conviction
Bouvette v. R., 2023 BCCA 152 (40780)

Non-disclosure of Crown evidence.

Criminal Law: Young Persons
I.M. v. R., 2023 ONCA 378 (40868)

There is a publication ban in this case, certain information not available to the public, in the context of sentencing a young person as an adult.

Criminal Law: Young Persons
S.B. v. R., 2023 ONCA 369 (40873)

There is a publication ban on the party in this case, in the context of sentencing a young person as an adult.

Elections: Voting; Third Party Advertisers
Attorney General of Ontario v. Working Families Coalition (Canada) Inc., et al., 2023 ONCA 339 (40725)

Constitutionality of third party advertising in election context.

Telecommunications: “Transmission Line”
Telus Communications Inc. v. Federation of Canadian Municipalities, et al., 2023 FCA 79 (40776)

Definition of telecom “transmission line”.