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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 February 9 – March 20, 2024 inclusive.

Appeals

Aboriginal Law/Constitutional Law: Division of Powers
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185; 2024 SCC 5 (40061)

In an order in council made on December 18, 2019, the Government of Québec gave the province’s Attorney General a mandate to challenge, through a reference to the Court of Appeal, the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Act”), on the ground that it exceeds the jurisdiction of the Parliament of Canada. Stating that the federal statute [translation] “raises fundamental constitutional issues with regard particularly to the division of legislative powers and the constitutional architecture of Canada”. Nothing prevents Parliament from affirming, as it does in s. 18(1) of the Act, that Indigenous peoples have jurisdiction to make laws in relation to child and family services. This “affirmation”, through which Parliament declares that the inherent right of self government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes “legislative authority” in relation to Indigenous child and family services, certainly represents a legislative commitment that Parliament must honour in its conduct toward Indigenous peoples. Furthermore, nothing prevents Parliament from declaring, as it does in s. 7, that this commitment, like the others made toward Indigenous peoples in the Act for the protection of children, “is binding” on His Majesty.

Criminal Law/Charter: Search & Seizure; IP Addresses
R. v. Bykovets, 2022 ABCA 208; 2024 SCC 6 (40269)

This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer is yes. An IP address is a unique identification number. IP addresses identify Internet-connected activity and enable the transfer of information from one source to another. They are necessary to access the Internet. An IP address identifies the source of every online activity and connects that activity (through a modem) to a specific location. And an Internet Service Provider (ISP) keeps track of the subscriber information that attaches to each IP address. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue our most intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought. On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.

Criminal Law: Sexual Assault; Ungrounded Common Sense Assumptions
R. v. Kruk, 2022 BCCA 18; 2022 BCCA 345; 2024 SCC 7 (40095) (40447)

These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge’s credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The S.C.C. was asked to recognize a novel rule referred to as the “rule against ungrounded common-sense assumptions”. No such change to the law is warranted; the S.C.C. declined to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony.

Leaves to Appeal Granted

Criminal Law: Evidence Exclusion
R. v. Wilson, 2023 SKCA 106 (40990)

Evidence exclusion after police search.

Criminal Law: Prior Convictions
A.H. v. R., 2023 ONCA 253 (41015)

Use of prior convictions at trial.

Criminal Law: Sentencing
J.W. v. R., 2023 ONCA 552 (40956)

Considering rehabilitative programming in sentencing.

Criminal Law: Sexual Assault
K. v. R., 2023 BCCA 337 (40964)

Tendering evidence of previous sexual history without an application.

Immigration: Marriage of Dependant Child
Dorinela Pepa v. Minister of Citizenship and Immigration, 2023 FCA 102 (40840)

Effect of delay on right to appeal removal order due to visa expiring.

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