Michelle O'Bonsawin

The Crown appealed an acquittal of sexual assault entered by a military judge, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles.

The Court Martial Appeal Court majority dismissed the Crown's appeal and upheld the acquittal.

The Supreme Court of Canada, by majority, dismissed the appeal substantially for the reasons of the Court Martial Appeal Court majority, finding that the military judge's assessment of the evidence was thorough and cumulative, and that no wrong legal principles were applied.

Although some improper speculation was noted, it did not undermine the military judge's fundamental findings.

O'Bonsawin J. dissented and would have allowed the appeal.

Five non-rights holder parents applied to the Minister to exercise discretion to admit their children to a French first language education program in the Northwest Territories, with the support of the francophone school board.

The Minister denied each application, finding the parents did not meet the categories established in the ministerial directive.

The SCC held that the Minister was required not only to consider s. 23 of the Charter but to conduct a proportionate balancing of the values underlying that provision — including preservation and development of the minority language community — against the government's interests.

Applying the Doré framework, the Court found the decisions unreasonable because the Minister gave disproportionate weight to consistency and cost, and insufficient weight to pedagogical requirements and the remedial purpose of s. 23.

The appeal was allowed and the Court of Appeal orders set aside.

Four British Columbia residents alleged to have participated in a transnational pump-and-dump securities manipulation scheme with links to Quebec challenged the adjudicative jurisdiction of Quebec's Financial Markets Administrative Tribunal (FMAT) over out-of-province defendants.

The majority held that while the Civil Code of Québec's private international law rules did not independently ground jurisdiction, the Quebec securities scheme — comprising the Securities Act and the Act respecting the Autorité des marchés financiers — properly interpreted in light of the Unifund sufficient connection test, conferred jurisdiction on the FMAT over appellants who had a real and substantial connection to Quebec.

The majority dismissed the appeals, finding that using Quebec as the 'face' of the scheme and injuring Quebec investors established the requisite connection.

Côté J. dissented, arguing that the majority conflated constitutional applicability of legislation with adjudicative jurisdiction, and that in the absence of express conferral of territorial jurisdiction by special statute, the C.C.Q.'s private international law rules exclusively govern, under which the FMAT lacked jurisdiction.

A municipality contracted with a constructor to repair a water main and dispatched quality control inspectors to the project site.

A pedestrian was fatally struck by construction equipment at an intersection where required safety measures — a fence and signallers — were absent.

The municipality was charged as an employer under the Occupational Health and Safety Act for failing to ensure that prescribed regulatory measures were carried out in the workplace.

On equal division, the Supreme Court of Canada dismissed the appeal, with the majority holding that proof of control over workers or the workplace is not required to establish the actus reus of the employer's duty under s. 25(1)(c); control is relevant only to the due diligence defence.

The dissent would have either remitted the matter or restored the acquittals on the basis that regulatory measures apply only to work within the employer's sphere of control.

The Crown appealed the fitness of the sentence imposed on the first respondent for child luring under s. 172.1(1)(b) of the Criminal Code, and both respondents challenged the constitutionality of the mandatory minimum sentences in s. 172.1(2)(a) and (b) as cruel and unusual punishment under s. 12 of the Charter.

The majority held that the sentencing judge committed errors in principle in imposing a five-month concurrent sentence for luring, and increased the sentence to 12 months' imprisonment to be served consecutively.

The mandatory minimum sentences of one year (indictable) and six months (summary) for child luring were found to be grossly disproportionate when applied to reasonably foreseeable offenders and declared of no force or effect under s. 52 of the Constitution Act, 1982.

The dissent would have upheld the mandatory minimums as constitutional.

The appellants, who served as presidents of a group of insurance companies under an incentive pay agreement with the majority shareholders, learned that a major company was interested in acquiring the group.

Rather than disclosing this to the shareholders, the presidents purchased the shareholders' interests and resold them at a substantial profit.

The Supreme Court of Canada held that the presidents breached both an implied contractual obligation to inform arising from the nature of the Presidents' Agreement and the obligation to perform that agreement in accordance with the requirements of good faith under arts. 1434 and 1375 of the Civil Code of Québec.

Disgorgement of profits was held unavailable as a non-compensatory remedy absent an obligation of maximalist loyalty, but damages equivalent to the appellants' profits were awarded pursuant to a rebuttable presumption that the shareholders' lost gain equalled those profits, where the appellants' own disloyal conduct prevented precise proof of injury.

The appeal was dismissed with costs.

Media appellants challenged the application of the automatic publication ban in s. 648(1) of the Criminal Code to pre-empanelment proceedings in two unrelated criminal cases.

In the first case (Silva), the ban was imposed on a Garofoli application and a motion for a stay of proceedings for abuse of process.

In the second case (Coban), media sought a declaration that s. 648(1) applied only after the jury was empanelled.

The Supreme Court of Canada held unanimously that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5), which confers on trial judges jurisdiction to deal with matters that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

Both appeals were dismissed.

Two foreign nationals were found inadmissible on security grounds under s. 34(1)(e) of the Immigration and Refugee Protection Act for engaging in acts of violence, without any alleged link to national security or the security of Canada.

The administrative tribunals interpreted s. 34(1)(e) as not requiring such a nexus.

Applying the Vavilov reasonableness review framework, the Supreme Court held that the administrative decisions were unreasonable for failing to address critical points of statutory context, the broad consequences of the interpretation, and Canada's non-refoulement obligations under the Refugee Convention.

The Court held that the only reasonable interpretation of s. 34(1)(e) requires a nexus between the relevant acts of violence and national security or the security of Canada.

Appeals allowed and administrative decisions quashed.

The appellant was convicted by a jury of participation in the activities of a criminal organization for the purpose of weapons trafficking, contrary to s. 467.11 of the Criminal Code, following an investigation into illegal firearms trafficking.

On appeal, the appellant argued that the trial judge erred in law in his jury instructions on the definition of 'criminal organization' by failing to explain that such an organization must have structure and continuity, as required by R. v. Venneri.

The Supreme Court of Canada (majority) held that the trial judge's failure to instruct the jury that a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity constituted an error of law, as the bare statutory definition is insufficient without this gloss from Venneri.

The majority further clarified the functional approach to appellate review of jury instructions, explaining that a properly equipped jury is one that is both accurately and sufficiently instructed, and that trial circumstances — including evidence, counsel's arguments, and the absence of objection — cannot substitute for a mandatory accurate and sufficient instruction on the law.

The appeal was allowed, the conviction on the criminal organization count set aside, and a new trial ordered on that count.

The appellant was charged with summary conviction impaired driving and released on an undertaking not to operate a motor vehicle for 21 months prior to sentencing.

At sentencing, the judge imposed the mandatory one-year driving prohibition under s. 259(1)(a) of the Criminal Code but backdated it to the commencement of the pre-sentence prohibition, effectively giving credit for time already served.

The Court of Appeal held that granting such credit was impermissible as it would reduce the sentence below the mandatory minimum.

The Supreme Court allowed the appeal, holding that common law judicial discretion to grant credit for a pre-sentence driving prohibition — recognized in R. v. Lacasse — is not displaced by s. 259(1)(a) or s. 719(1) of the Criminal Code, as those provisions govern the imposition of a minimum punishment and the commencement of a sentence respectively, and do not preclude a sentencing court from crediting pre-sentence prohibition time served.

The appellants challenged the constitutional validity of s. 159.3 of the Immigration and Refugee Protection Regulations, which designates the United States as a safe third country, rendering refugee claimants arriving at Canadian land ports of entry from the United States ineligible to have their claims considered in Canada.

The Court held that s. 159.3 is not ultra vires the IRPA, as the validity of a regulation is assessed at the time of promulgation.

The Court further held that s. 159.3 does not breach s. 7 of the Charter: while some effects on liberty and security of the person are causally connected to Canadian state action, the legislative scheme is neither overbroad nor grossly disproportionate given the availability of statutory safety valves that guard against real and not speculative risks of refoulement.

The s. 15 equality rights challenge, based on the disproportionate impact on women fearing gender-based persecution, was remitted to the Federal Court for determination on the merits.

The appellant corporation, which held approximately $90 million in non-capital losses and other tax attributes it could not itself utilize, entered into a complex arrangement with a venture capital company to monetize those tax attributes.

Through a series of transactions, the appellant's assets and liabilities were stripped into a parent company, and the venture capital company obtained contractual control over the appellant's board composition and activities via an investment agreement, while never formally acquiring de jure control of its shares.

The appellant then carried on a new investment business using the tax attributes to shelter income.

The Supreme Court held, 7-1, that the transactions constituted abusive tax avoidance under the general anti-avoidance rule (GAAR) in s. 245 of the Income Tax Act.

The object, spirit and purpose of s. 111(5) is to prevent corporations from being acquired by unrelated parties in order to deduct unused losses against income from another business for the benefit of new shareholders; the transactions achieved the functional equivalent of an acquisition of control and frustrated that rationale.

The appellant appealed a unanimous decision of the Alberta Court of Appeal that set aside a trial acquittal on one count of sexual assault and substituted a conviction pursuant to s. 686(4)(b)(ii) of the Criminal Code.

The trial judge had erred in law both by admitting evidence of the complainant's prior sexual activity and by finding an air of reality to the defence of honest but mistaken belief in communicated consent.

The Supreme Court dismissed the appeal, holding that the defence had no air of reality and the prior sexual activity evidence was inadmissible, such that the Court of Appeal properly substituted a conviction.

A school board trustee sued a teachers' union president for defamation arising from public statements characterizing the trustee's online posts opposing a provincial sexual orientation and gender identity educational initiative as bigoted, transphobic, and hateful.

The defendant applied to dismiss the action under British Columbia's anti-SLAPP statute, the Protection of Public Participation Act.

The chambers judge dismissed the defamation action, finding a valid fair comment defence and that the public interest in protecting the defendant's counter-speech outweighed the limited harm to the plaintiff.

The Court of Appeal reinstated the action.

The Supreme Court of Canada majority restored the chambers judge's dismissal order, holding that the plaintiff failed to adduce sufficient evidence of serious harm causally linked to the defendant's statements, and that the defendant's expression as counter-speech on a matter of public interest relating to a marginalized group was deserving of significant protection under the public interest weighing exercise in s. 4(2)(b) of the PPPA.

Côté J. dissented, concluding the plaintiff was entitled to a day in court and that the chambers judge erred in failing to consider aggravating factors to harm and the quality of the expression at issue.

The appellant sought division of family property pursuant to Saskatchewan's Family Property Act after the parties executed a separation agreement without independent legal advice or financial disclosure.

The trial judge found the agreement not binding and equalized the family property, ordering the respondent to pay approximately $90,000.

The Court of Appeal applied the Miglin framework and found the agreement entitled to great weight, ordering the appellant to pay approximately $5,000.

The Supreme Court of Canada held that the Miglin framework should not be transposed wholesale into provincial family property legislation, which requires a statute-specific analytical approach.

The Court found the agreement binding and procedurally sound, with no demonstrated prejudice from the absence of legal advice or disclosure.

The appeal was allowed and the family home and household goods were divided as of the date of trial, resulting in a payment of $43,382.63 owed by the respondent to the appellant.

The Crown appealed a Court of Appeal decision restoring stay applications for abuse of process that a trial judge had summarily dismissed following a Vukelich hearing.

The accused had alleged systemic police misconduct and inhumane conditions of confinement prejudicing their right to a fair trial.

The Supreme Court of Canada dismissed the Crown's appeal and held that the correct threshold for summary dismissal of applications in the criminal law context is whether the application is manifestly frivolous — a rigorous standard requiring that the frivolous nature of the application be obvious on the face of the record.

The trial judge erred by failing to assume the truth of the alleged facts and inferences and by applying an insufficiently rigorous threshold that slid towards the merits of the underlying applications.

The appellant challenged provisions of Quebec's Cannabis Regulation Act that completely prohibit the possession and cultivation of cannabis plants in a dwelling-house, arguing they fell under federal criminal law power or were inoperative due to federal paramountcy.

The Supreme Court held that the impugned provisions are a valid exercise of provincial jurisdiction under ss. 92(13) and (16) of the Constitution Act, 1867, finding their pith and substance is to ensure the effectiveness of the state monopoly on cannabis sales to protect public health and security.

The Court further held that the provisions do not frustrate the purpose of the federal Cannabis Act, because Parliament's exemption of up to four home-grown plants does not confer positive rights to cultivate, and the provincial objectives are compatible with the federal scheme's goals of combating illicit cannabis activity.

The Crown appealed an acquittal entered by the Quebec Court of Appeal arising from the respondent's refusal to provide a roadside breath sample under s. 254(2)(b) of the Criminal Code when the demanding officer did not have an approved screening device (ASD) in his possession.

The Supreme Court of Canada held that the word 'forthwith' in s. 254(2)(b) must be interpreted in accordance with its ordinary meaning — immediately or without delay — and that the absence of an ASD at the scene at the time a demand is made is not an unusual circumstance justifying a flexible interpretation of that requirement.

A demand made when no ASD is present is therefore invalid, and a driver cannot be criminally liable for refusing to comply with a demand that it was physically impossible to comply with.

The Crown bears the burden of establishing unusual circumstances to justify any departure from the immediacy requirement.

The appeal was dismissed and the acquittal upheld.

The Crown appealed an acquittal for impaired driving and driving with excessive blood alcohol after police conducted a random sobriety stop on private property.

The officers had formed the intention to stop the respondent while he was on the highway under s. 48(1) of the Highway Traffic Act, but only effected the stop after he had pulled onto a private driveway.

The Supreme Court held that s. 48(1) did not authorize random sobriety stops on private property, as the respondent was no longer a 'driver' within the HTA's definition when stopped, and the police breached his s. 9 Charter rights.

However, applying the Grant framework, the Court declined to exclude the evidence under s. 24(2), finding that the legal uncertainty at the time rendered the breach not egregious, and the reliable and crucial nature of the evidence combined with the serious public interest in combatting impaired driving outweighed the first two lines of inquiry.

The accused voluntarily made admissions during a treatment process concerning acts of a sexual nature committed against a child.

Those admissions were sent to the director of youth protection and then to police with the accused's consent.

The accused was charged with sexual assault and filed a motion to exclude the admissions, which the trial judge dismissed.

The Court of Appeal entered an acquittal on the basis that the admissions were inadmissible.

The Supreme Court, in a majority decision, allowed the Crown's appeal on the sole issue of the accused's consent to disclosure of his admissions, restoring the conviction.

The dissenting judge would have dismissed the appeal substantially for the reasons of the Court of Appeal majority.