SCC 2013

The Crown appealed a decision of the Ontario Court of Appeal which set aside the respondent's conviction for possessing marijuana and cocaine for the purposes of trafficking and ordered a new trial.

The central issue was whether a drug purchase call intercepted by police on the accused's cell phone constituted admissible evidence or inadmissible hearsay.

The Court held that implied assertions tendered for the truth of their contents are subject to the hearsay rule, just as express assertions are.

On a principled analysis, the single drug purchase call failed to meet the requirements of necessity and reliability, as no effort was made to locate the caller despite having his address, and the call lacked sufficient indicia of reliability.

The appeal was dismissed and a new trial ordered.

The appellant union challenged the employer's unilaterally imposed mandatory random alcohol testing policy at a paper mill.

The arbitration board allowed the grievance, finding the policy unjustified absent evidence of a workplace alcohol problem.

On judicial review, the board's decision was set aside, and the New Brunswick Court of Appeal dismissed the union's appeal.

The Supreme Court of Canada (6-3) allowed the appeal, holding the arbitration board's decision was reasonable.

The majority found the board properly applied the established arbitral "balancing of interests" test, which requires evidence of enhanced safety risks to justify random testing.

The dissent would have found the board's decision unreasonable for departing from the arbitral consensus on the evidentiary threshold without explanation.

The appellant used funds advanced by the respondent to purchase property in his own name.

The respondent claimed a beneficial interest via purchase money resulting trust.

The Supreme Court declined to abandon the purchase money resulting trust doctrine in favour of unjust enrichment, holding that the doctrine provides certainty and predictability.

The Court found the trial judge correctly concluded the presumption of resulting trust was rebutted, as the respondent's contribution matched the exact amount of tax arrears it owed to a third party, and the respondent's own fax stated the funds were advanced without conditions or requirements.

The appellant was convicted of three counts of first degree murder for being a party, with her spouse, to the murder of their three children as part of a murder-suicide pact.

She argued the trial judge erred in not putting the defence of abandonment to the jury as an alternative to her primary defence of absence of mens rea.

The Supreme Court held there is no cardinal rule against putting incompatible defences to a jury, but the defence of abandonment did not meet the air of reality test because the appellant, who had supplied the murder weapon, failed to take reasonable steps proportional to her participation to neutralize its effects or prevent the offence.

The Court reformulated the test for abandonment under s. 21(1) of the Criminal Code to include a fourth element requiring proportional neutralizing or preventative steps.

The appellant was acquitted at trial of operating a vehicle with a blood alcohol level exceeding the legal limit after the trial judge found that straddle evidence rebutted the statutory presumption under s. 258(1)(d.1) of the Criminal Code.

The Quebec Court of Appeal set aside the acquittal and substituted a conviction.

The Supreme Court of Canada allowed the appeal, holding that straddle evidence is admissible to rebut the statutory presumption, applying the principles from R. v. Gibson.

The trial judge committed no legal error in finding the presumption rebutted and no palpable or overriding error in weighing the other indicia of impairment.

The acquittal was reinstated.

The appellants, a mother and infant who suffered brain damage during a vaginal birth after caesarean section (VBAC), appealed a Court of Appeal order setting aside a trial judgment due to the trial judge's extensive copying of the plaintiffs' submissions.

The Supreme Court held that incorporating the material of others in reasons for judgment does not, without more, require the decision to be set aside; the presumption of judicial integrity is rebutted only where copying would lead a reasonable person to conclude the judge did not independently consider the issues.

On the merits, the Court affirmed liability against the prenatal obstetrician for failure to obtain informed consent to VBAC, but set aside findings of liability against the hospital, nurse, and other physicians for lack of causation.

The appellant sold two forest tenures in Alberta, under which the purchasers assumed statutory reforestation obligations arising from past harvesting.

The Minister reassessed the appellant to include the estimated cost of those reforestation obligations in the vendor's proceeds of disposition under s. 13(21) of the Income Tax Act.

The Supreme Court of Canada unanimously allowed the appeal, holding that the reforestation obligations were not a distinct existing liability of the vendor but rather a future cost embedded in the forest tenure by virtue of Alberta's regulatory scheme, which depressed the tenure's value.

The Court rejected both the Minister's mortgage analogy and the appellant's contingent liability argument, finding the obligations properly excluded from proceeds of disposition regardless of whether they were contingent or absolute.

The Crown appealed the acquittal of the respondent on a charge of child abandonment under s. 218 of the Criminal Code.

The respondent, unaware of her pregnancy, gave birth in a retail store washroom and left the newborn in the toilet, believing the child was dead.

The majority held that s. 218 requires subjective fault, and the Crown had not proved the respondent knew her conduct risked the child's life or health.

The concurring minority would have applied an objective penal negligence standard but upheld the acquittal on the basis of the respondent's honest and reasonable mistake of fact.

The appeal was dismissed unanimously.

The appellant was convicted of second degree murder after intervening in a street altercation that ended in the victim's death.

At trial, the judge refused three requests to put the defence of provocation to the jury.

The majority of the Supreme Court of Canada held that the trial judge erred, finding that a careful reading of the accused's testimony, in light of the evidence as a whole, sufficiently supported the inferences necessary for the defence of provocation to apply.

The appeal was allowed and a new trial ordered.

The dissent would have upheld the conviction, finding that neither the objective nor subjective elements of provocation met the air of reality test.

The appellants, individual members of the Fort Nelson First Nation, blocked a logging company's access to timber sites after the Crown granted logging licences.

Sued in tort, they defended on the basis that the licences were issued in breach of the duty to consult and violated their treaty rights under Treaty No. 8.

The Supreme Court of Canada held that the duty to consult is owed to the Aboriginal group collectively, and absent authorization from the First Nation, individual members cannot assert a breach of that duty on their own.

The Court declined to make a definitive pronouncement on whether individual members could assert treaty rights in these circumstances, but ultimately dismissed the appeal on the basis that raising the defences constituted an abuse of process, as the appellants had failed to challenge the licences when issued and instead resorted to self-help by blockading access.

The appellant challenged the constitutionality of s. 243 of the Criminal Code, which prohibits concealing the dead body of a child whether it died before, during, or after birth, arguing the provision is impermissibly vague in its application to a child that died before birth, thereby infringing s. 7 of the Charter.

The Supreme Court unanimously dismissed the appeal, holding that s. 243 meets the minimum standard of precision required by the Charter when interpreted to apply only to a fetus that would likely have been born alive.

The Court adopted a likelihood standard from R. v. Berriman, finding the provision gives fair notice and sufficiently limits enforcement discretion.

The matter was remitted for a new trial.

The Crown appealed from the Newfoundland and Labrador Court of Appeal's decision setting aside the accused's convictions for incest and sexual assault and ordering a new trial.

The accused had sought to adduce fresh affidavit evidence on appeal alleging ineffective assistance of trial counsel.

The Supreme Court of Canada unanimously allowed the Crown's appeal, finding that defence counsel's conduct did not result in omissions and decisions which, taken together, undermined the reliability of the convictions such that a miscarriage of justice occurred.

The convictions were restored and the Sex Offender Information Registration order was modified from 10 to 25 years.

The Crown appealed the Nova Scotia Court of Appeal's decision quashing the respondent's convictions for indecent assault and gross indecency.

The accused had been extradited to Canada to face charges, but more than 14 years elapsed between the laying of charges and trial, with approximately 12 years attributable to Crown delay in effecting extradition.

The Supreme Court of Canada unanimously agreed with the Court of Appeal that the accused's s. 11(b) Charter right to be tried within a reasonable time was violated, and dismissed the appeal.

The Crown appealed from the Court of Appeal for Newfoundland and Labrador's decision setting aside a jury conviction for sexual assault and entering an acquittal.

The Court of Appeal had concluded the verdict was unreasonable, applying a test of whether an experienced trial judge could have provided adequate reasons for conviction.

The Supreme Court held that the Court of Appeal applied the wrong legal test and failed to give sufficient deference to the jury's assessment of witness credibility.

The proper test requires asking whether the verdict is supportable on any reasonable view of the evidence, not whether an imaginary trial judge could articulate reasons for conviction.

The appeal was allowed and the conviction restored.

The appellant was convicted of conspiracy to commit murder and attempted murder at trial.

The Nova Scotia Court of Appeal upheld the convictions.

On further appeal to the Supreme Court of Canada, the appellant challenged the reasonableness of the verdicts.

The Court unanimously agreed with the majority of the Court of Appeal that the verdict was not unreasonable and dismissed the appeal.

The appellant was convicted of first degree murder at trial.

The Supreme Court unanimously allowed the appeal, finding that the trial judge gave additional instructions to the jury, in response to a specific question on being an accessory and being a party to an offence, that were incomplete and confusing.

The Court also noted, without deciding, the question whether a conviction for first degree murder under s. 231(5) of the Criminal Code could be based on the accused being a party to the offence within the meaning of s. 21(2).

The verdict of guilty was set aside and a new trial ordered.

The appellant filed a police misconduct complaint under the Police Services Act and commenced a parallel civil action for damages arising from the same arrest.

After the disciplinary hearing officer found the officers not guilty, the respondents successfully moved to strike the civil claims on the basis of issue estoppel.

The Supreme Court of Canada, in a 4-3 decision, allowed the appeal, holding that while no public policy rule should categorically exclude police disciplinary hearings from issue estoppel, the Court of Appeal erred in its discretionary analysis by failing to consider the significant differences in purpose, scope, and stakes between the two proceedings, the parties' reasonable expectations, and the unfairness of permitting the Chief of Police's designate's decision to exonerate the Chief from civil liability.

The appellant, an infant who suffered severe brain damage during a mid-level forceps delivery, appealed from the Court of Appeal's reversal of the trial judge's finding of liability against the respondent obstetrician.

The trial judge found the respondent breached the standard of care by failing to have surgical back-up immediately available before attempting the forceps procedure and by failing to obtain the mother's informed consent.

The Supreme Court of Canada restored the trial judgment, holding the trial judge committed no palpable and overriding error in finding causation on the "but for" test.

The matter was remitted to the Court of Appeal on the damages issue.

The appellant was convicted of second degree murder following a jury trial.

The issue on appeal was whether the trial judge's charge to the jury was unfair because the judge provided opinions on the evidence while summarizing the theory of the defence.

The Supreme Court of Canada unanimously agreed with the dissenting judge in the Quebec Court of Appeal that the trial judge's charge compromised the fairness of the trial, and ordered a new trial.

The appellant telecommunications company challenged a general warrant and related assistance order requiring it to produce stored text messages of two subscribers on a prospective, daily basis over a two-week period.

The majority held the general warrant invalid, with two concurring opinions reaching that result by different routes.

One plurality held that the prospective daily production of future text messages constituted an interception of private communications requiring authorization under Part VI of the Criminal Code, making the general warrant unavailable under s. 487.01(1)(c).

The other concurring opinion held that even if not strictly an interception, the technique was substantively equivalent to one, precluding resort to the general warrant.

The dissent would have upheld the general warrant, finding the technique was disclosure of previously intercepted communications rather than an interception itself.