Robert W. Hubbard

The appellant was convicted of five counts of possessing machines and materials adapted and intended to be used to commit forgery under s. 369(b) of the Criminal Code, relating to the manufacture of forged credit cards.

On appeal, the appellant argued that the trial judge erred in instructing the jury that 'adapted' meant 'suitable for' rather than 'altered so as to be suitable for'.

The Court of Appeal agreed, finding that the term 'adapted' in s. 369(b) is ambiguous and must be interpreted in favour of the accused to mean 'altered so as to be suitable for'.

As there was no evidence that the materials in four of the counts were altered, acquittals were entered for those counts, and a new trial was ordered for the remaining count where some materials had been altered.

The appellant appealed a second degree murder conviction arising from the killing of a close friend, arguing the jury charge inadequately addressed the alternative defence theory that mental disorder negated the mens rea for murder and manslaughter, and misstated the burden of proof.

The Court of Appeal held that the trial judge properly instructed the jury under the Hilton approach that evidence of mental disorder remained relevant to intent even if the not criminally responsible defence failed.

It further held that, read as a whole, the charge clearly distinguished the balance of probabilities burden applicable to the mental disorder defence from the Crown’s burden to prove intent beyond a reasonable doubt.

The appeal was dismissed.

The appellant challenged convictions for trafficking in a narcotic and possession of proceeds of crime on the sole ground that the trial judge improperly refused to order disclosure of the precise location of a police observation post.

The Court of Appeal held that the trial judge applied the correct legal principles in balancing public interest privilege and the accused's right to make full answer and defence.

The appellant already knew the building used for surveillance and the surrounding conditions, and the defence failed to identify any specific prejudice arising from nondisclosure.

The defence was also granted leave to renew the application during trial but did not do so, which was fatal to the appeal.

The appellants appealed the dismissal of an application for certiorari seeking to quash a search warrant.

The court held that the reviewing judge properly applied the governing certiorari standard, which asks whether there was evidence upon which the justice of the peace could issue the warrant rather than reweighing the information.

Any alleged non-disclosure regarding an informant's antecedents would not have affected issuance, and the remaining information disclosed ample grounds.

The court further held that certiorari is discretionary and found no basis to interfere with the application judge's judicial exercise of discretion.

The appellant appealed convictions and sentence arising from trafficking in large amounts of cocaine.

He argued primarily that the judge hearing the Garofoli application unfairly limited cross-examination of the police officer who swore the affidavits supporting wiretap authorizations.

The court held that leave to cross-examine on such affidavits is not automatic, informer privilege remained protected absent the innocence-at-stake exception, and the application judge properly exercised his discretion in restricting questions that risked revealing protected information.

The court also rejected a sentence disparity argument, finding the appellant played a more significant role than others in the trafficking operation.

Both conviction and sentence appeals were dismissed.

The appellants were convicted of conspiracy to traffic in cannabis resin following a reverse sting operation in which the RCMP offered to sell them a large quantity of hashish.

The appellants sought a stay of proceedings, arguing the police conduct was illegal and constituted an abuse of process.

They also sought disclosure of legal advice the RCMP received from the Department of Justice, which the Crown claimed supported the police's good faith belief in the operation's legality.

The Supreme Court of Canada held that the police are not immune from criminal liability and that their conduct in offering to sell narcotics was illegal.

Furthermore, by asserting good faith reliance on the legal advice, the RCMP waived solicitor-client privilege.

The Court ordered disclosure of the relevant legal advice and directed a new trial limited to the issue of whether a stay of proceedings should be granted.

The United States requested the extradition of the respondent, a Canadian citizen, on charges of attempting to launder money and conspiracy to launder money following a failed FBI sting operation.

The respondent argued his conduct would not constitute an offence in Canada because the money was not actually the proceeds of crime, making the offence impossible.

The Supreme Court of Canada held that the respondent's conduct would amount to a criminal attempt and a criminal conspiracy under Canadian law, as factual impossibility is not a defence to these inchoate offences.

The Court also dismissed the respondent's cross-appeal regarding disclosure, finding that the limited disclosure provided was adequate for an extradition hearing.

The appellant was convicted of second degree murder under the constructive murder provisions of the Criminal Code, which were subsequently struck down as unconstitutional.

After exhausting his appeals, the appellant applied for a writ of habeas corpus, arguing his continued detention violated the Charter.

The Supreme Court of Canada dismissed the appeal, holding that habeas corpus cannot be used as a collateral attack on a conviction by a superior court once the accused is no longer in the judicial system, and that the doctrine of res judicata applies.

The appellant, facing a Canadian drug charge, was subsequently indicted in the United States for similar offences carrying a ten-year minimum sentence.

On the morning of his Canadian trial, the Crown stayed the proceedings and the appellant was arrested on an extradition warrant.

The appellant argued that the Crown's earlier offer to stay extradition in exchange for a guilty plea to the Canadian charge constituted egregious misconduct.

The Supreme Court of Canada dismissed the appeal, finding no lack of good faith or abuse of process by the Crown.

The appellant challenged his conviction for possession of narcotics for the purpose of trafficking on the basis that drugs were discovered during a warrantless search of his girlfriend's apartment.

The Court held that a claim under s. 8 of the Charter requires the accused to establish a personal reasonable expectation of privacy, assessed on the totality of the circumstances.

On the facts, the appellant was merely an occasional visitor, contributed nothing to household expenses, lacked authority to regulate access, and had denied ownership of the seized drugs in the courts below.

Because no personal privacy interest of the appellant was infringed, he could not invoke s. 24(2) to exclude the evidence.

The appeal was dismissed.

Police investigating cocaine trafficking entered and secured the accused's home without a warrant while awaiting issuance of a search warrant, in order to prevent destruction or removal of evidence after public arrests nearby.

The majority held the warrantless entry breached s. 8 of the Charter, but concluded under s. 24(2) that the cocaine and marked money should not be excluded because the evidence was real evidence, trial fairness was unaffected, exigent circumstances mitigated the seriousness of the breach, and the evidence was vital to prosecution of serious drug offences.

A concurring judge would have found no s. 8 breach because exigent circumstances justified entry, while the dissent would have excluded the evidence as the product of a serious, police-created Charter breach.

Appeal dismissed.

Criminal appeals arising from convictions for conspiracy to traffic in controlled substances where a substantial part of the Crown's case rested on intercepted private communications.

The central issue was whether the trial judge over-edited affidavits supporting wiretap authorizations, thereby preventing an effective Wilson review and depriving the appellants of their Charter right to make full answer and defence.

The majority held that full disclosure is the governing premise, subject only to narrow public-interest exceptions, and that the deletions improperly withheld material that could have been used to challenge the validity of the authorizations.

The Court allowed the appeals, quashed the convictions, and ordered a new trial.

The corporate accused challenged misleading advertising provisions under the Competition Act on the basis that the strict liability structure, modified due diligence defence, and reverse onus infringed Charter ss. 7 and 11(d).

The Court held that a corporation charged with an offence could raise the constitutional challenge and benefit from a finding of invalidity.

A unanimous Court held that the timely retraction requirements in the statutory defence infringed s. 7 because they could permit conviction without fault and were not justified under s. 1.

A majority held that the reverse onus requiring the accused to establish due diligence on a balance of probabilities infringed s. 11(d), but a different majority held that infringement justified under s. 1 in the regulatory context.

The accused's appeal was dismissed, the Crown's appeal was allowed, and the matter was remitted to trial on the basis that the timely retraction provisions were unconstitutional but the reverse onus remained operative.

The appellant appealed a decision of the Ontario Court of Appeal that allowed the Crown's appeal from a stay of proceedings.

The Supreme Court of Canada dismissed the appeal, holding that no ground had been established that would warrant the disclosure of the identity of the police informer.

The appellants were charged with conspiracy to traffic in cocaine.

At trial, evidence was led of three separate conspiracies, but the appellants were only involved in one (Phase II).

The appellants argued that the indictment charged a broader conspiracy encompassing all phases, and since they were not involved in Phase I, they should be acquitted.

The Supreme Court of Canada held that the indictment adequately specified the time and locations relevant to the Phase II conspiracy, giving the appellants reasonable notice of the charge.

The Crown proved the conspiracy charged, and the appeal was dismissed.

The appellant was subjected to a warrantless "frisk" search for drugs based on an informant's tip.

The police found speed and then arrested the appellant, advising him of his right to counsel.

The trial judge acquitted the appellant, finding the search unreasonable under s. 8 of the Charter and excluding the evidence under s. 24(2).

The Court of Appeal ordered a new trial.

The Supreme Court of Canada dismissed the appeal, holding that while the appellant was detained and his s. 10(b) right to counsel was violated by the delay in informing him, the search itself was reasonable under s. 8.

The Court further held that the real evidence obtained should not be excluded under s. 24(2) as its admission would not bring the administration of justice into disrepute.

The appellants appealed their convictions for income tax evasion, arguing that evidence obtained prior to the enactment of the Charter under a provision of the Income Tax Act later found to be unconstitutional should be excluded.

The Supreme Court of Canada dismissed the appeal, agreeing with the Ontario Court of Appeal that the Charter does not apply retrospectively to searches and seizures conducted before it came into force.

The appellant, a former bank manager in the Bahamas, was called as a Crown witness in a Canadian income tax prosecution.

He refused to testify about specific bank customers and transactions, arguing that doing so would subject him to criminal prosecution under Bahamian bank secrecy laws and violate his rights under section 7 of the Charter.

The Supreme Court of Canada held that the appellant was a compellable witness and that section 7 of the Charter did not apply, as any deprivation of liberty would result from the operation of foreign law, not Canadian law.

The appeal was dismissed.