Malcolm Rowe

The appellant was charged with sexual assault arising from events in which the complainant, after consuming alcohol, suffered partial amnesia regarding the evening's events including most of the sexual activity.

The trial judge acquitted the appellant, finding the actus reus not established for the first series of sexual acts in the park because the Crown failed to prove the absence of the complainant's consent, and accepting that the appellant had an honest but mistaken belief in consent regarding the second series at his home even though the complainant lacked capacity there.

A majority of the Court of Appeal found errors of law in the trial judge's treatment of the evidence, specifically the improper use of the accused's testimony as direct evidence of the complainant's subjective consent and the failure to consider a large body of circumstantial evidence regarding the park incidents.

The majority of this Court dismissed the appeal, holding that the trial judge erred in law by treating direct evidence from the complainant as a requirement for establishing non-consent and by failing to consider all relevant circumstantial evidence, errors that had a material bearing on the acquittal.

The dissent would have allowed the appeal and restored the acquittal, finding that the trial judge properly considered all the evidence and that the majority's intervention amounted to interference with questions of fact.

The appellants challenged the Quebec Court of Appeal's declarations of unconstitutionality with respect to mandatory minimum sentences of one year's imprisonment for possession and accessing of child pornography under ss. 163.1(4)(a) and 163.1(4.1)(a) of the Criminal Code.

The majority held that a two-stage contextual and comparative analysis is required to determine whether a mandatory minimum sentence complies with s. 12 of the Charter, including the use of reasonably foreseeable scenarios.

Applying a reasonably foreseeable scenario of an 18-year-old who briefly receives and views a sexted image of a 17-year-old friend, the majority concluded that the mandatory minimum sentences were grossly disproportionate and violated s. 12 of the Charter.

The dissent would have allowed the appeal, finding that none of the hypothetical scenarios considered had a sufficient factual and legal connection with the cases before the Court and thus none could be considered reasonable.

The appellant Crown appealed from a decision of the Saskatchewan Court of Appeal which quashed the respondent's convictions for firearms offences and possession of identity documents, holding that his arrest for simple possession of a controlled substance was unlawful because s. 4.1(2) of the Controlled Drugs and Substances Act — the Good Samaritan Drug Overdose Act exemption — precluded charge and conviction and, by necessary implication, arrest for that offence.

The majority held that Parliament's purpose in enacting s. 4.1(2) was to save lives by removing disincentives to calling emergency services at the scene of a drug overdose, and that immunity from arrest is necessarily implied by the immunity from charge and conviction, since arrest and the searches incident to it would otherwise substantially undermine that legislative purpose.

The majority further held that the s. 4.1(2) immunity does not affect other existing police powers at the scene of an overdose, and that the evidence discovered through a search incident to the unlawful arrest must be excluded under s. 24(2) of the Charter.

The dissent concluded that the text, context, and purpose of s. 4.1(2) limit the exemption to charge and conviction only, and that the police did not infringe ss. 8 or 9 of the Charter.

The appeal considered whether Criminal Code s. 725(1)(c) allows sentencing judges to treat as aggravating facts conduct that could ground a separate charge where such a charge had previously been laid but was no longer pending.

A majority held that the provision applies in those circumstances, provided the separate charge remained legally possible at sentencing and procedural fairness is preserved.

The Court emphasized Crown duties of fairness, including timely disclosure of aggravating facts and avoidance of ambush in plea contexts.

It found no reviewable sentencing error and restored the original sentence.

The dissent would have found unfair use of the evidence and upheld the reduced sentence.

In this appeal, the Court considered whether a creditor’s unsuccessful seizure attempt still interrupts the 10-year extinctive prescription period for rights resulting from a judgment under Quebec civil law.

The Court held that filing and serving a notice of execution under the Code of Civil Procedure forms part of the judicial application for seizure and is sufficient to interrupt prescription under art. 2892 C.C.Q. even if no property is ultimately seized.

Because the seizure proceedings were suspended by a bailiff rather than dismissed by a court, art. 2894 C.C.Q. did not retroactively cancel the interruption.

The debtor’s prescription defence therefore failed.

In a Crown sentence appeal arising from historical child sexual offences, the Court clarified that appellate intervention requires a legal error affecting sentence or demonstrable unfitness, and that sufficiency of reasons must be assessed functionally and contextually.

The Court held the sentencing judge’s factual findings and reasons were sufficient in light of the jury verdict, record, and submissions.

It further held that contemporary sentencing principles, including Friesen, apply to historical offences, subject to the maximum penalty in force when the offences were committed.

The appellate reduction was set aside, the original six-year concurrent sentence restored, and reincarceration ordered in the interests of denunciation and deterrence.

In an appeal concerning adverse possession of municipal parkland, the appellants sought possessory title to a fenced portion of backyard land registered to the municipality.

The majority held that recognizing a common law immunity for municipal parkland would conflict with Ontario’s statutory scheme under the Real Property Limitations Act and related legislation, which preserves matured possessory claims unless a statutory exception applies.

Because the statutory test for adverse possession was satisfied and no applicable statutory immunity barred the claim, the municipality’s title had been extinguished.

The appeal was allowed and the appellants were entitled to fee simple title to the disputed land.

The Supreme Court of Canada dismissed the appeal and held Ontario courts lack jurisdiction over the claims against the Italian defendants.

The majority accepted the Ontario cardmember agreement as a presumptive connecting contract but found the presumption rebutted because the real and substantial connection to Ontario was weak given the tort occurred in Italy and the foreign defendants’ relationship to Ontario was remote.

The dissent would have restored the motion judge’s ruling and allowed Ontario jurisdiction.

The Court addressed the test for fitness to stand trial under s. 2 of the Criminal Code and held that fitness requires capacity to make and communicate reality-based defence decisions, not capacity to make decisions in one’s best interests.

Applying that standard, the majority found no basis to disturb findings that the accused was fit despite fluctuating psychotic symptoms, because the record showed sustained reality-based participation and intelligible communication.

The majority also dismissed fresh and new evidence motions concerning post-trial psychiatric evidence and later judicial findings about the Crown expert’s practices, concluding the proposed evidence could not reasonably have affected the verdict.

A dissent would have admitted the fresh evidence, found a miscarriage of justice, quashed the conviction, and ordered a new trial.

In this criminal constitutional appeal, the Court interpreted ss. 286.2 and 286.3 of the Criminal Code under the modern principle of statutory interpretation and held that these offences do not prohibit sex workers from taking the safety measures identified in Bedford.

Because properly interpreted provisions permit key safety practices, the Court held the offences do not engage security of the person under s. 7 of the Charter.

The appeal was dismissed and the convictions were affirmed.

This criminal sentence appeal under the Youth Criminal Justice Act addressed the proper interpretation of s. 72(1) governing when a young person may receive an adult sentence.

The Court held that under s. 72(1)(a), the Crown must rebut the statutory presumption of diminished moral blameworthiness beyond a reasonable doubt, and that objective offence seriousness is not a proper factor at that first-stage developmental-age inquiry.

Applying that standard, the majority found legal errors in the sentencing analysis and concluded the Crown had not displaced the presumption on this record.

The appeal was allowed, the adult life sentence was set aside, and a youth sentence was imposed with remittal on pre-sentence custody credit and supervision conditions.

The Supreme Court of Canada dismissed S.B.’s sentencing appeal and upheld an adult sentence for first degree murder under s. 72 of the Youth Criminal Justice Act.

The majority held the Court of Appeal erred on the standard of proof by not applying beyond a reasonable doubt to rebuttal of diminished moral blameworthiness, but found no impact on outcome because the presumption was rebutted on the record and no reviewable error occurred in the accountability analysis, including treatment of social context evidence and rehabilitative potential.

Concurring judges agreed the appeal should be dismissed but disagreed that beyond a reasonable doubt is the proper standard for rebuttal under s. 72(1).

On a criminal appeal from Quebec, the Court considered whether the Crown could challenge, within an appeal against acquittal, a trial judge’s pretrial order directing a judge-alone murder trial despite the Crown’s refusal to consent under s. 473(1) of the Criminal Code.

The Court held that the appellate court had jurisdiction to hear that legal challenge, but erred by treating the refusal as reviewable only for abuse of process and by nullifying the trial.

The majority held that the refusal did not fall within core prosecutorial discretion and that, in any event, a tailored s. 24(1) Charter remedy was available because the trial judge had found a probable future s. 11(b) delay breach in pandemic conditions.

The appeal was allowed, the new-trial order was quashed, and the matter was remanded for determination of unresolved Crown grounds of appeal.

The Supreme Court of Canada allowed Ms. Pepa’s appeal from Federal Court of Appeal and Federal Court judgments that upheld an Immigration Appeal Division ruling denying jurisdiction under s. 63(2) of the Immigration and Refugee Protection Act.

A majority held the IAD’s interpretation was unreasonable and concluded the only reasonable interpretation is that visa-holder status for this appeal right is assessed at the time of arrival in Canada, then remitted the matter to the IAD for determination of the removal-order appeal.

Rowe J. agreed the decision was unreasonable but would have remitted without declaring a single reasonable interpretation, while Côté and O’Bonsawin JJ. would have dismissed the appeal.

This appeal concerned whether Ontario courts had jurisdiction under s. 22 of the Children’s Law Reform Act to decide parenting issues for a child whose parents had lived in multiple countries.

The majority held that habitual residence under s. 22 turns on where the child resided and was at home at the prescribed time, not on shared parental settled intention.

Applying that approach, the Court found no basis to disturb the motion judge’s conclusion that the child was habitually resident in Ontario when the application commenced.

A dissent would have applied a parental intention approach and found habitual residence in Oman.

The appeal was dismissed with costs.

In a sexual assault appeal, the Court addressed whether evidence of a complainant’s sexual inactivity, including references to virginity and prior sexual disinterest, is presumptively inadmissible under s. 276 and the analogous common law regime governing Crown-led sexual history evidence.

The Court held that sexual inactivity evidence forms part of sexual history and can trigger inverse twin-myth reasoning, so it is presumptively inadmissible and must be screened through a voir dire.

The Court further held that, subject to limited modifications, the common law process for Crown-led sexual history evidence should mirror the two-stage statutory framework in ss. 278.93 and 278.94, including gatekeeping and publication-protection principles.

Because the trial judge admitted and relied materially on presumptively inadmissible communications without a voir dire, the evidentiary error was not harmless and the curative proviso could not apply.

The conviction was quashed and a new trial ordered.

On an appeal from a conviction quashed for miscarriage of justice arising from Crown non-disclosure, the Court addressed the proper remedy under s. 686(2) of the Criminal Code.

The Court held that where the Crown seeks an acquittal and undertakes to call no evidence at a new trial, an appellate court may enter an acquittal directly rather than require pro forma retrial steps or impose a judicial stay.

The Court emphasized that acquittal remains distinct from a stay and that a stay is a residual remedy considered only after primary remedies are assessed.

Applying those principles, the Court set aside the stay of proceedings and entered an acquittal.

Two enterprises in airport and marine transportation security, and an employee, challenged provincial offence proceedings under Quebec’s Private Security Act on interjurisdictional immunity grounds.

The Court held that aspects of the provincial licensing scheme gave a provincial administrative body final control over how security activities at the core of exclusive federal aeronautics and navigation and shipping powers were conducted.

It found impairment of the federal core powers and concluded the impairing provisions were unseverable from the legislative scheme.

The statute was therefore declared constitutionally inapplicable to the appellants, and both appeals were allowed with costs.

In a sentencing appeal arising from guilty pleas to sexual assault, uttering threats, and unlawful confinement, the Court addressed whether anticipated completion time for institutional programming may be considered in fixing a fit sentence and when delay-related conduct can justify denying enhanced pre-sentence credit under s. 719(3.1) of the Criminal Code.

The Court held that programming and treatment timelines may be considered where supported by an adequate evidentiary record, provided the sentence remains proportionate to offence gravity and moral blameworthiness.

The Court further held that delay alone is insufficient to constitute wrongful conduct; conduct must be intended to frustrate the proper operation of the criminal justice system.

Applying the sentencing standard of review, the custodial term was upheld as fit, but the denial of enhanced credit for confinement in a mental health facility was varied because the offender’s delay-related conduct was materially linked to mental and cognitive impairment.

The appeal was allowed in part with additional enhanced credit awarded.

In an administrative law appeal concerning federal telecommunications regulation, the Court interpreted the term “transmission line” in ss. 43 and 44 of the Telecommunications Act and the scope of the CRTC’s access-regime jurisdiction over public property.

The majority held that “transmission line” refers to wireline infrastructure and does not include 5G small cell antennas, so the CRTC cannot adjudicate access disputes for antenna siting under that regime.

The Court emphasized text, context, legislative history, and statutory purpose, including Parliament’s allocation of antenna site-approval powers under the Radiocommunication Act.

A two-judge dissent would have interpreted the term to include 5G small cells based on ordinary meaning, statutory coherence, and technological neutrality.

The appeal was dismissed with costs to specified respondents.