Russell Brown

In a manslaughter sentencing appeal, the Court addressed when a trial judge may reject a joint submission following a guilty plea.

It held that departure is permitted only where the proposed sentence would bring the administration of justice into disrepute or otherwise be contrary to the public interest, rejecting a simple fitness approach.

Applying that standard, the Court found the trial judge erred in principle by substituting a modestly longer custodial term and adding probation despite the negotiated resolution and systemic interests in certainty.

The appeal was allowed and the sentence was varied to match the joint submission of additional custody without probation.

In related pan-national class proceedings, the court considered whether supervisory superior court judges may sit together outside their home provinces to hear motions in implementing a settlement.

The court held that, where subject-matter and personal jurisdiction exist and no coercive powers are required, judges may exercise discretionary authority to sit extraprovincially if local law does not prohibit it.

The court concluded this authority is available under the relevant class proceedings statutes and, in any event, aligns with inherent jurisdiction principles.

The court rejected a mandatory video-link condition, while confirming that openness and practical access remain relevant discretionary considerations.

The appeals were allowed and the cross-appeal was dismissed.

In a constitutional appeal on judicial independence, the appellants challenged transitional remuneration and pension provisions enacted during a provincial judicial reform.

The Court held that when a new judicial office is created, remuneration for all judges appointed to that office must be reviewed by an independent committee within a reasonable time, including retroactive review where required.

The impugned provisions delaying or structuring remuneration without timely committee review breached the institutional financial security guarantee and were not justified under s. 1.

The Court upheld the validity of the pension participation provision and the later executive order, and ordered a remedial committee review for the 2004 to 2007 period.

In a criminal appeal, the court addressed whether the jury charge properly instructed jurors on how to assess a complainant's testimony about events allegedly occurring years earlier in childhood.

The intermediate appellate court had set aside convictions for sexual assault and sexual interference and ordered a new trial.

The court held that, read as a whole, the trial judge's instructions conveyed the correct legal approach to credibility and memory assessment.

The appeal was allowed and the convictions were restored.

The appellant challenged convictions for impaired driving causing bodily harm, dangerous driving causing bodily harm, and driving with a blood alcohol level exceeding the legal limit, arguing Charter breaches related to detention, counsel rights, and search and seizure required exclusion of breath sample evidence.

A majority held the appeal should be dismissed substantially for the reasons of the intermediate appellate judge.

The majority concluded admission of the breath sample evidence would not bring the administration of justice into disrepute.

Two judges would have allowed the appeal based on the cumulative effect of multiple breaches.

In a customs tariff appeal, the appellant challenged a judgment that had set aside a tribunal classification of imported hockey gloves.

The Court held that Rules 1 and 2 of the General Rules for the Interpretation of the Harmonized System operate conjunctively within a hierarchical framework when determining prima facie headings.

The majority found the tribunal reasonably concluded the goods were classifiable as gloves under heading 62.16 and reasonably rejected classification under heading 39.26 on the record and applicable notes.

The appellate intervention was set aside and the tribunal decision restored, with dissenting reasons concluding the tribunal’s interpretation was unreasonable.

In a builders’ risk insurance appeal, the appellants sought coverage for replacing windows scratched during post-installation cleaning performed by a contractor.

The insurers relied on an exclusion for the cost of making good faulty workmanship.

The Court held that, in this context, the exclusion removes only the cost of redoing the faulty work itself, while resulting physical damage remains covered.

The Court also held that interpretation of this standard form contract was reviewable for correctness in the circumstances.

The appeals were allowed with costs and the trial judgment was restored.

On a statutory interpretation appeal concerning reserve land taxation, the appellant argued that a bylaw clause permitting consideration of restrictions placed on land use “by the band” excluded a lease restriction created in a Crown lease.

The Court held that the assessor could consider the golf-club use restriction when valuing the leased reserve lands for assessment purposes.

Reading the bylaw text, purpose, and legislative context together, the Court found the 1996 amendment narrowed qualifying restrictions but did not bar this restriction.

The Court also held the Crown’s historical statutory role in reserve leasing did not negate that the restriction was placed by the band in context.

The appeal was dismissed with costs.

In a criminal appeal concerning circumstantial proof of possession of child pornography, the Court clarified that alternative inferences consistent with innocence may arise from evidence or absence of evidence, but must be reasonable rather than speculative.

The Court held there is no mandatory formula for circumstantial-evidence instructions, though juries should be cautioned against inferential gap-filling and premature conclusions.

Reading the trial reasons as a whole, the Court found no reversible legal error in the treatment of inferences, burden, or standard of proof.

The guilty verdict was held reasonable on the totality of the evidence.

The acquittal was set aside and Charter ss. 8 and 24(2) issues were remanded to the provincial appellate court.

The appeals addressed whether provisions of the National Defence Act permitting the Minister of National Defence to initiate appeals in military justice matters violate ss. 7 or 11(d) of the Charter.

The Court held that prosecutorial independence is a principle of fundamental justice, but that the Minister benefits from the same strong presumption of independent prosecutorial discretion as other public officials exercising prosecutorial functions.

The challenged provisions were found constitutional, and no statutory framework or evidentiary record established improper partisan motive.

On the mistrial issue, the Court held the military judge committed no reviewable error in refusing a mistrial after issuing strong curative instructions.

The motion to quash was dismissed and the Minister’s appeals were allowed.

The appeal addressed whether retrospective application of expanded sexual-offender prohibition orders in s. 161(1)(c) and (d) of the Criminal Code infringed the right to the lesser punishment under s. 11(i) of the Charter.

The Court held both amendments constituted punishment and therefore limited s. 11(i) when applied to pre-amendment offences.

Under s. 1, retrospective application of the no-contact condition in s. 161(1)(c) was not justified, but retrospective application of the Internet prohibition in s. 161(1)(d) was justified.

The appeal was allowed in part and the order was varied accordingly.

In an employment appeal, a non-unionized federally regulated employee challenged a without-cause dismissal under the unjust dismissal provisions of the Canada Labour Code.

The adjudicator held that severance in lieu could not displace the statutory requirement to assess whether the dismissal was unjust, and allowed the complaint.

The majority restored that decision, concluding the adjudicator's interpretation was reasonable and consistent with the statutory purpose and dominant adjudicative approach under ss. 240-246.

The court held the scheme protects eligible non-unionized employees from dismissal without cause and supports meaningful remedies, including reinstatement.

A criminal appeal considered whether a nearly three-year period between charge and trial infringed the accused’s s. 11(b) Charter right to be tried within a reasonable time.

Applying the new Jordan framework, the majority held the net delay exceeded the 30-month ceiling for superior court matters and was not justified by exceptional or transitional circumstances.

The Court found the matter was relatively straightforward, institutional delay was substantial, and the Crown did not establish reasonableness.

A stay entered by the provincial appellate court was upheld, with dissenting reasons that would have restored the convictions under a different balancing approach.

The appellant sought a stay for breach of the constitutional right to be tried within a reasonable time after substantial pre-trial and trial delay in a drug prosecution.

The Court held the delay was unreasonable and reformulated the governing section 11(b) framework by introducing presumptive ceilings of 18 months in provincial court and 30 months in superior court or post-preliminary inquiry matters.

Delay above the ceiling is presumed unreasonable unless the Crown proves exceptional circumstances outside its control.

Applying that framework contextually, the remaining delay far exceeded the ceiling and was not justified by complexity, transition, or institutional strain.

The convictions were set aside and a stay was entered.

The appellant challenged his conviction on the basis that a delay of over three years infringed the right to be tried within a reasonable time under s. 11(b) of the Charter.

The court held that, despite moderate complexity, the overall delay became unreasonable where the accused consistently took proactive steps to expedite trial and did not cause delay.

It found that delay attributable to co-accused and two adjournments required a more proactive Crown response, including potential severance and earlier date management.

The conviction was set aside and a stay of proceedings was entered.

These consolidated appeals examined whether a workers’ compensation tribunal could reopen its own decision for patent unreasonableness and whether the tribunal’s causation analysis on occupational disease was reviewably unreasonable.

The court held that causation could be inferred from circumstantial evidence despite inconclusive expert opinion, and that the reviewing courts erred by treating absence of definitive expert support as determinative.

Applying deferential patent-unreasonableness review and the statutory tie-breaking rule favouring workers where evidence is evenly weighted, the tribunal’s original causation finding was restored.

The reconsideration decision remained a nullity, but the workers’ appeal succeeded.

The appeal considered whether police may conduct a warrantless penile swab as a search incident to arrest in a sexual assault investigation.

The majority held that such a search can be authorized at common law if police have reasonable grounds to believe it will reveal and preserve evidence of the offence and if it is carried out reasonably with safeguards protecting dignity and privacy.

Applying that framework, the Court found no breach of section 8 and upheld admission of the DNA evidence.

Concurring reasons would have found a section 8 breach but admitted the evidence under section 24(2).

Dissenting reasons would have excluded the evidence and ordered a new trial.

This appeal considered whether a municipal notice of reserve that blocked construction at a federally approved antenna site was constitutionally valid.

The majority held the notice’s pith and substance was the siting of radiocommunication infrastructure, an exclusive federal matter, making it ultra vires.

The Court also held the measure significantly impaired the federal core protected by interjurisdictional immunity.

The appeal was allowed and the notice was unconstitutional and inapplicable to the appellant.

The Crown appealed an acquittal on a bestiality count arising from sexualized conduct involving an animal and a complainant.

The central issue was whether penetration is an essential element of bestiality under s. 160 of the Criminal Code.

The majority held that the term retained its established legal meaning requiring penetration, and found no clear legislative intent in the 1955 or 1988 amendments to expand the offence.

The Court emphasized that expanding criminal liability is a legislative function, not a judicial one.

The appeal was dismissed, with a dissent concluding penetration is not required.

In a property and secured-transactions appeal, the Court considered whether municipal heritage incentive payments registered in an agreement by caveat ran with land, passed in a judicial sale, or remained personal property subject to priority rules.

The Court held that s. 29 of Alberta’s Historical Resources Act allows positive covenants to run only where they are in favour of listed public entities, not in favour of a landowner claimant to payment.

The Court further held the agreement and sale documents did not transfer the payment right to the purchaser and that awarding those payments to the purchaser would create a windfall without commercial rationale.

The payment right was characterized as a chose in action assigned as security, with priorities governed by the Personal Property Security Act and any residual priority dispute remitted to a master.