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 Nov. 17 – Dec. 31, 2022 inclusive.

Oral Judgments

Criminal Law: Hearsay
R. v. Furey, 2021 NLCA 59; 2022 SCC 52 (40038)

Karakatsanis J.: ” … The trial judge did not err in admitting the hearsay evidence on the voir dire. However, we would emphasize that the necessity of receiving hearsay evidence is never so great that the principled approach’s requirement of threshold reliability can be sacrificed. … this Court has never said that reliability becomes more flexible as necessity increases. While the indicia of reliability required to address specific hearsay concerns may vary with the circumstances of each case (Khelawon, at para. 78), threshold reliability must be established in every case. As this Court affirmed in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, “the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents” (para. 32, citing Khelawon, at para. 49). Indeed, where this Court has considered the out-of-court statements of deceased declarants, we have consistently insisted on “circumstantial guarantee[s] of trustworthiness” (R. v. Smith, [1992] 2 S.C.R. 915, at pp. 937-38), or “a sufficient substitute basis for testing the evidence” (Khelawon, at para. 105). … we do not read the trial judge’s reasons as based on a relaxed threshold of reliability. Rather, they show that she applied the reliability threshold described by this Court in Bradshaw, at para. 31. She remarked that the statement was video-recorded, “reasonably contemporaneous with the events and was given to police without hesitation” (voir dire reasons, at paras. 28-29, reproduced in A.R., vol. I, at p. 12). She also considered corroborative evidence, and determined that the explanations alternative to the statement’s truth “would seem unlikely” (para. 44). Based on these considerations, she concluded “that contemporaneous cross-examination, while preferable as in any case, would not likely add much to the process of determining the truth of what [the declarant] said in his statement” (para. 46). Thus, we are satisfied that the trial judge’s reasons, read as a whole, show that she properly applied the law relating to the admission of hearsay evidence, and did not relax the minimum threshold of reliability. We agree with the dissent in the Court of Appeal that the references in the final paragraphs of the trial judge’s reasons do not undermine her previous conclusion that threshold reliability was established. For these reasons, we allow the appeal, set aside the order of the Court of Appeal, and restore the respondent’s convictions.”

Criminal Law: Homicide
R. v. Doxtator, 2022 ONCA 155; 2022 SCC 40 (40063)

Kasirer J.: “A majority of the Court would allow the appeal. The trial judge’s instructions for Mr. Doxtator properly left with the jury the reasonably available verdicts. As MacPherson J.A., dissenting, correctly observed in the Court of Appeal, the trial judge explicitly instructed the jury to consider Mr. Doxtator’s case separately from that of the co-accused. Nothing in the record on appeal permits this Court to depart from the assumption that juries generally follow explicit instructions: see R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 692-93. This is sufficient for the appeal to be allowed, to set aside the order for a new trial for the respondent Richard Doxtator and to restore his conviction for first degree murder. Justices Karakatsanis and Rowe, dissenting, would dismiss the appeal substantially for the reasons of Roberts J.A. in the Court of Appeal.”

Criminal Law: “In-Dock” Identification Evidence
R. v. Clark, 2022 SKCA 36; 2022 SCC 49 (40090)

Karakatsanis J.: “We agree with Justice Leurer, in dissent, that a specific Hibbert type instruction (R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445) was required in the circumstances of this case. The appeal is allowed, substantially for the reasons of Justice Leurer. The conviction is set aside and a new trial ordered.”

Criminal Law: R. v. W.(D.); Villaroman
R. v. Vernelus, 2022 QCCA 138; 2022 SCC 53 (40072)

Kasirer J.: “The Court is of the view that the appeal should be dismissed for the reasons given by Moore J.A. for the majority of the Court of Appeal. We agree with the majority that it was reasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt (see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 71, cited by the majority in this case at para. 41 of its reasons). All of the grounds of appeal are without merit. First, the trial judge made no error in applying the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. She wholly rejected the defence evidence while concluding that it did not raise a reasonable doubt. Finding that there was strong circumstantial evidence relating to possession, the judge was faced with a lack of evidence that could counter the inference of guilt reasonably arising from the Crown’s evidence. Nothing in the judge’s reasons suggests that she used the rejection of the defence evidence as positive evidence of guilt. The majority of the Court of Appeal made the same observation at para. 36 of its reasons, finding that [translation] “the judge’s rejection of the appellant’s testimony, due to its inconsistencies, became determinative of and fatal to the outcome of his defence”. Second, the majority of the Court of Appeal did not err in applying Villaroman. The “only reasonable inference” criterion obviously does not mean that guilt had to be the only possible or conceivable inference. The dissenting judge on appeal stressed that it was [translation] “reasonable and not speculative to infer that Mr. Daniel may have placed the firearm in the bag” (para. 28 (footnote omitted)). This is indeed a plausible theory given the fact that Mr. Daniel was sitting beside the bag and that his DNA was found on the firearm. However, as the majority of the Court of Appeal noted, whether or not it was the appellant who placed the firearm in the bag [translation] “is immaterial” (para. 38). Insofar as the prosecution established that the firearm had not been placed there without the appellant’s knowledge or against his will, all of the elements of possession were present. The trial judge could therefore conclude that the only reasonable inference was that the firearm had been concealed in the bag with the appellant’s full knowledge. Third, the trial judge did not err in referring to the appellant’s calm reaction when he was arrested for possession of a firearm. As the majority noted, the judge did not use this to evaluate the appellant’s credibility during his testimony, but rather to assess, as one element of the circumstantial evidence, the appellant’s knowledge of the fact that the firearm was in his bag (majority reasons, at para. 37).”

Criminal Law: Sexual Assault; Stereotypical Inferences
R. v. D.R., 2022 NLCA 2; 2022 SCC 50 (40039)

Rowe J.: “This is an appeal as of right from a decision of the Newfoundland and Labrador Court of Appeal setting aside acquittals and ordering a new trial in a case of sexual assault, among other offences. The accused is the grandfather of the complainant, who was between 7 and 10 at the time of the alleged offences. There was evidence that the complainant was happy to see the accused and exhibited no avoidant behaviour toward him. From this, the trial judge inferred that the complainant had a “strong and normal” relationship with the accused, which caused the trial judge to doubt the credibility of her testimony regarding the alleged offences. Writing for the majority, Hoegg J.A. observed that the trial judge “rested his reasonable doubt on his conclusion . . . that their strong and normal relationship meant that her grandfather could not have been sexually abusing her” (para. 34 (CanLII)). We agree with the majority of the Court of Appeal that this inference by the trial judge was rooted in stereotypical reasoning, rather than the entirety of the evidence, and that this constituted an error of law. While the trial judge set out other lines of reasoning relating to the complainant’s credibility, his reliance on stereotypical inferences undermines his assessment of her credibility and, thus, his verdict. The majority of the Court of Appeal decided, correctly in the circumstances, that the trial judge’s stereotypical reasoning had a material effect on the acquittal of the accused (see para. 61 and the heading for that paragraph). Accordingly, we would dismiss the appeal and order a new trial.”

Appeals

Civil Litigation/Transportation Law: Disclosure
Canada (Transportation Safety Board) v. Carroll-Byrne, 2021 NSCA 34; 2022 SCC 48 (39661)

One of the defendants in the class action, Airbus S.A.S., brought an interlocutory motion before the Supreme Court of Nova Scotia seeking an order that the Transportation Safety Board release the cockpit voice recorder (“CVR”) containing the flight crew’s communications — part of the so called “black box” from the aircraft — as well as the transcripts made of the recorded data. The Board, a stranger to the litigation, had the only copy of the CVR and used it in the preparation of its report. The defendant Airbus, the aircraft manufacturer, said the release of the device was necessary for a fair trial, in particular to resolve the causation issue that would be central to the civil action. The Board opposed the motion for disclosure. It was joined by the defendant airline, Air Canada, and its pilots, who are alleged to have acted negligently. For the Board, the CVR was subject to a statutory privilege and consequently could not be produced in evidence in the civil action. The S.C.C. upheld the chambers judge’s discretionary decision to permit production and discovery of the CVR at trial and dismiss the appeal. First, the chambers judge correctly identified, as a matter of law, the underlying purposes of pilot privacy and public safety in air transportation relevant to weighing the “importance of the privilege” as recognized by Parliament. Second, he did not adopt an interpretation of the counterweighted “public interest in the proper administration of justice” that undermined the statutory privilege bearing on the CVR. He did not, for example, suggest that the importance of the privilege could be outweighed merely because the CVR was relevant and trustworthy. The judge was satisfied that the information in the privileged on board recording could not be produced in evidence by any other reasonable means. He thus ordered disclosure of the CVR not just because it was highly probative but, first and foremost, because it was necessary to resolve the civil action. To exclude it could have precluded a fair trial on a matter central to the dispute.

Criminal Law: Confessions
R. v. Beaver, 2020 ABCA 203; 2022 SCC 54 (39480)(39481)

The S.C.C. agreed with the lower courts that Beaver’s confession was voluntary and thus admissible under the common law confessions rule, and that the police had reasonable and probable grounds to arrest the appellants for murder. However, the homicide detectives made a “fresh start” from the Charter breaches arising from the appellants’ unlawful detention for Lambert but not for Beaver. Thus, only Beaver’s confession was obtained in a manner that breached the Charter. Balancing the lines of inquiry under s. 24(2) of the Charter, admitting Beaver’s confession into evidence would not bring the administration of justice into disrepute. The appellants’ convictions for manslaughter are confirmed.

Criminal Law: Entrapment
R. v. Ramelson, 2021 ONCA 328; 2022 SCC 44 (39664)

In assessing whether an online space is sufficiently precise to ground the police’s reasonable suspicion, then, the Internet’s unique features must be considered. The space must be viewed with particular attention to its functions and interactivity to ensure that the space has been “carefully delineate[d] and tightly circumscribe[d]” (Ahmad, at para. 39). The factors discussed by this Court in Ahmad — in particular, the number of activities and people affected, the interests of privacy and free expression, and the availability of less intrusive investigative techniques — may assist in that assessment. They may be key to ensuring that the purview of an online police investigation was no “broader than the evidence allow[ed]” (para. 41). On the correct analysis, the police here had reasonable suspicion over a sufficiently precise space and the offences the police offered were rationally connected and proportionate to the offence they reasonably suspected was occurring. Mr. Ramelson was therefore not entrapped. Courts assessing whether an online police investigation was bona fide must pay close attention to the space’s functions and interactivity — that is, to the permeability, interconnectedness, dynamism and other features that make the Internet a distinctive milieu for law enforcement. Even tailored online investigations may represent a broad and profound invasion into peoples’ lives. Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny. How the police act on the Internet may matter as much or more as where they act. Bona fide inquiries must satisfy two criteria before the police may offer an opportunity to commit an offence: the police must have (1) a reasonable suspicion over a sufficiently precise space; and (2) a genuine purpose of investigating and repressing crime (Ahmad, at para. 20).

Criminal Law: Entrapment
R. v. Dare, 2021 ONCA 327; 2022 SCC 47 (39871)

Mr. Dare adopts the appellant submissions made in Ramelson and Haniffa, stating that “the facts in the present case are sufficiently similar, so that the same conclusions ought to follow”. For the reasons given in Ramelson, Project Raphael was a bona fide inquiry, the appeal is dismissed.

Criminal Law: Entrapment
R. v. Haniffa, 2021 ONCA 326; 2022 SCC 46 (39803)

In this appeal, Mr. Haniffa adopts the questions in issue as set out in the appellant’s factum in Ramelson. Many of his arguments mirror those raised in Ramelson, but he raises some additional points. Inspector Truong’s evidence, he says, was insufficient to ground reasonable suspicion: it was based too heavily on his personal experiences, failed to show the targeted offences were prevalent, and failed to explain how a user would actually locate a juvenile sex worker through the website, given its parameters. And given the potential breadth of investigations into spaces, the police should be limited, in the context of bona fide inquiries, to offering the same offences they suspect are occurring; they should not be entitled to offer those that are only rationally connected and proportionate (see R. v. Mack, [1988] 2 S.C.R. 903, at p. 958). For the reasons given in Ramelson, the S.C.C. did not accede to these arguments. As explained there, the police had reasonable suspicion over a sufficiently precise space and the Mack standard of “rationally connected and proportionate” applies and was satisfied. Project Raphael was thus a bona fide inquiry. Mr. Haniffa was not entrapped.

Criminal Law: Entrapment
R. v. Jaffer, 2021 ONCA 325; 2022 SCC 45 (39676)

Mr. Jaffer adopted the arguments raised in the companion appeals as they concern opportunity-based entrapment, adding that the police lacked reasonable suspicion over him personally. The S.C.C. addressed these points in Ramelson, concluding that Project Raphael was a bona fide inquiry. For the reasons given in that case, the S.C.C. does not accede to these grounds of appeal. Mr. Jaffer’s second argument is that the courts below erred in failing to take his personal circumstances into account when assessing whether he was induced. Mr. Jaffer acknowledges that the police could not have known that he was living with undiagnosed Asperger’s Syndrome, but submits that such personal circumstances are relevant and ought to be considered in the analysis of inducement-based entrapment. Mr. Jaffer explains that the common symptoms of his condition — in particular, a difficulty socializing and rigid rule compliance — put him at a heightened risk for being induced. In addition, that condition, and an earlier interaction he had with police, where he had agreed to provide information about a particular sex worker and her pimp, lent credence to his explanation that he had planned to meet “Kathy” only to gather information and alert the authorities. The issue of whether the entrapment framework ought to be revised is better left for another case. Whatever the merit of Mr. Jaffer’s legal arguments, the jury, in full knowledge of Mr. Jaffer’s circumstances, rejected his evidence that he had intended to visit the hotel room solely to gather information. In convicting him, the jury did not have a reasonable doubt about the purpose for which he arranged the meeting.

Family Law: Child Removal; Return Orders
F. v. N., 2021 ONCA 688; 2022 SCC 51 (39875)

The outcome of this appeal turns on whether the Ontario courts should exercise jurisdiction over the merits of a custody dispute involving an international child abduction. The dispute stems from the wrongful retention in Ontario by the appellant, the “Mother”, of two very young children who habitually reside in Dubai, in the United Arab Emirates (“UAE”). The children are retained in the province without the consent of the respondent, the “Father”, who remained in Dubai. What is at issue on appeal is not who, as between the parties, should be awarded the disputed custody rights in respect of the two children but instead which court — the Ontario court or a court in the UAE — should decide the matter. As with any decision affecting children, judges should consider the best interests of the child in exercising their s. 40 powers (C.A. reasons, at paras. 179-81, per Brown J.A.; M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 146). However, due to the interim nature of the powers, courts should not embark on a detailed analysis of the best interests factors set out in s. 24(3) of the CLRA at this stage. Brown J.A. rightly rejected the idea that consideration of the best interests of the child under s. 40 “must be performed in the same way as when determining custody (decision making responsibility/parenting time) under CLRA s. 24” (para. 182; see also paras. 183-84). Section 40 orders are not custody orders on the merits. Nevertheless, judges must ensure the order itself properly protects the child’s interests. Incorporating undertakings from the parties within the return order may effectively facilitate a child’s return by providing an answer to the anticipated risk of harm (Bolla, at paras. 140-45). Moreover, the S.C.C. shares the view of Chamberland J.A., writing in a Hague Convention case, that a left behind parent has no advantage in acting in bad faith and reneging from their commitments in the foreign jurisdiction: this is a fact that the foreign authorities deciding custody would consider on the merits, and those same authorities [translation] “would certainly hold against him in a context where the best interests of the children will be at the centre of the analysis” (Droit de la famille — 15751, at para. 36). In other words, when the ultimate custody and access determinations are made in a UAE court, the Father will have every interest in showing that he respected undertakings made in the best interests of the children. It was not unreasonable for the trial judge to rely on the undertakings here.

Patents: Infringement; Accounting of Profits Remedies
Nova Chemicals Corp. v. Dow Chemical Co., 2020 FCA 141; 2022 SCC 43 (39439)

While in certain circumstances the hypothetical profits that an infringer could have earned by selling a non-infringing option are relevant to a calculation of an accounting of profits, this is not such a case. A “non-infringing option” is any product that helps courts isolate the profits causally attributable to the invention from the profits which arose at the same time the infringing product was used or sold, but which are not causally attributable to the invention. Whether there is a relevant non-infringing option that can assist the court in this calculation is a question of fact. The infringer has the onus of establishing that there is a relevant non-infringing option. On the basis of the record before the reference judge, there were no relevant non-infringing options to consider. Additionally, for the first time in Canadian law, the reference judge awarded “springboard profits” to Dow (springboard profits are profits that arise post-patent-expiry but that are causally attributable to infringement of the invention during the period of patent protection; an extension of the fundamental principle that, in calculating an accounting of profits, the infringer must disgorge all profits causally attributable to infringement of the invention). It is irrelevant when the profits arise, provided they are causally connected to infringement. Like non-infringing options, whether profits that arise post-patent-expiry are causally attributable to infringement of the invention, during the period of patent protection, is a question of fact. On the basis of the record before him, the reference judge determined that some of Nova’s post-patent-expiry profits were causally attributable to infringement of the invention: by infringing Dow’s patent, Nova had entered the market created by the invention early, built market share, and used that market advantage to earn profits post-patent-expiry that were causally attributable to infringement of the invention during the period of patent protection. There is no reason to disturb these factual findings.

Tax: Stock Options
Des Groseillers v. Quebec (Agence du revenu), 2021 QCCA 906; 2022 SCC 42 (39879)

The S.C.C. dismissed the appeal, in a brief judgment, quoting the Qué. C.A.:

• “First, section 50 T.A. [Québec Taxation Act] provides for two things. To begin with, it indicates the time at which a benefit received because of an agreement referred to in section 48 T.A. will be taxed. In addition, by treating the transfer as employment income, section 50 creates an exception to the general rule that the disposition of property gives rise to a capital gain or loss. Subparagraph 422(c)(ii) T.A., in attributing a value to the consideration, has no impact on these legal fictions. That being said, there is, in my view, no actual conflict between section 50 and section 422.
• Second, the very broad formulation of the rule set out in section 422 suggests that the legislature’s purpose was to attribute to any disposition of property by a person a value equal to the fair market value of the property for the purposes of computation of income. Moreover, the legislature did not explicitly exclude the Division of the statute relating to employee stock options from the application of section 422 when it enacted the Taxation Act in 1972 or when subsequent amendments were made thereto. Its silence in this regard is telling, because there are several express references in the T.A. to the non applicability of section 422.”

Like the Court of Appeal, the S.C.C. concluded Mr. Des Groseillers was properly assessed. pursuant to s. 50 T.A., for the benefit received. In this case, and on the basis of s. 422(c)(ii) T.A., the value of the consideration received is deemed to be equal to the fair market value of the stock options at the time of the gift.

Leaves to Appeal Granted

Criminal Law: Publication Bans
La Presse inc. v. Silva, 2022 QCCA 1006 (40175)

Certain information is not available to the public, in the context of a media application to lift a prohibition re publication/broadcasting/transmission.