SCC 2016

In a criminal appeal as of right, the Court addressed whether an erroneous jury instruction on fabrication of alibi and evidentiary rulings required appellate intervention.

The Court confirmed that an alibi-fabrication instruction must be limited to an inference of consciousness of guilt and requires independent evidence linking the accused to deliberate fabrication.

Although the instruction was erroneous, the Court held the evidence against the accused was overwhelming.

Applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, the convictions for first degree murder and attempted murder were upheld.

The appellant challenged a first degree murder conviction on the basis of unreasonable verdict.

The Court affirmed that the verdict of the trial judge was reasonable and adopted the majority reasons of the provincial appellate court.

The appeal was dismissed from the bench on the hearing date.

The conviction for first degree murder remained in force.

In a criminal bribery prosecution, the appellant international financial organization challenged a third party production order and subpoenas issued in support of a Garofoli wiretap challenge.

The Court held that archival and personnel immunities under the Bretton Woods and Related Agreements Act applied to records and investigators of the organization’s integrity unit, and no waiver was established.

The Court further held that, in the Garofoli context, third party production requires a reasonable likelihood of probative value to the affiant-knowledge issues, not broad relevance to trial truth.

Because that threshold was not met, the production order was set aside.

The Crown appealed a declaration that the restriction on enhanced pre-sentence custody credit in s. 719(3.1) of the Criminal Code was unconstitutional.

The Court held that denying enhanced credit to offenders denied bail primarily because of prior convictions is overbroad under s. 7 because the provision captures persons unrelated to the public safety objective and affords limited meaningful review of endorsements.

The infringement was not saved by s. 1, as the measure was not minimally impairing and its deleterious liberty effects outweighed its benefits.

The Court also rejected the proposition that proportionality in sentencing process is an independent principle of fundamental justice under s. 7.

On a sentence appeal, the Court considered a constitutional challenge to the one-year mandatory minimum in s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act for repeat trafficking-related offences.

The majority held provincial court judges may decide constitutionality in matters before them, although they cannot issue formal s. 52(1) declarations.

Applying the reasonable hypothetical framework, the Court found the provision captured less blameworthy offenders and could impose grossly disproportionate punishment contrary to s. 12 of the Charter.

The infringement was not justified under s. 1, and the Court declined to decide s. 7 after resolving the appeal under s. 12.

The appeal was allowed and the 12-month sentence restored.

On a constitutional appeal, the appellants sought declarations that Métis and non-status Indians fall within Parliament’s jurisdiction under s. 91(24), that the federal Crown owes them a fiduciary duty, and that they have consultation and negotiation rights.

The Court held that Métis and non-status Indians are “Indians” under s. 91(24), restored the broader trial declaration, and rejected restricting Métis status to the Powley framework for this jurisdictional purpose.

The Court found this declaration had practical utility in ending the federal-provincial jurisdictional impasse.

The Court declined the second and third declarations as restatements of settled law lacking practical utility.

The Court considered the legal meaning of the phrase "her mind is then disturbed" in the infanticide provision of the Criminal Code.

It held that the phrase carries its ordinary meaning, does not require proof of a defined mental disorder, and sets a broad, flexible standard tied to childbirth or lactation effects at the time of the act.

Applying that standard, the Court found no reversible legal error in the trial judge's approach and upheld the infanticide verdicts and acquittals on murder counts.

The Crown's appeal was dismissed.

On a criminal appeal concerning party liability for cocaine trafficking, the appellants challenged convictions entered after the appellate court set aside acquittals.

The court held that, on the trial judge's factual findings, aiding and abetting through protective conduct for the distribution operation was established.

The reasons accepted that the appellants' acts hindered interference and provided assistance and encouragement to the principal offender.

The court affirmed the appellate disposition and dismissed both appeals.

The moving party sought to strike an affidavit filed in support of an application for leave to appeal, arguing the affidavit was irrelevant and inadmissible under Rule 89 of the Rules of the Supreme Court of Canada.

The Court held the opinion evidence lacked proper foundation, consisted largely of sworn argument on ultimate issues, and improperly attacked the correctness of the appellate decision below.

The Court reaffirmed that affidavit evidence will rarely be useful on leave applications unless it assists in establishing public importance through material not apparent from the record.

The motion was granted, the affidavit and related memorandum portions were struck without leave to amend, and costs were awarded to the moving party in any event of the cause.

In a labour arbitration context, a public-sector employer challenged an interlocutory ruling permitting examination of executive committee members on in camera deliberations leading to a teacher’s dismissal.

The Court held that reasonableness was the applicable review standard and upheld the arbitrator’s evidentiary ruling.

It concluded that the doctrine that legislative motives are unknowable and deliberative secrecy did not bar the proposed examinations in this contractual employment-dismissal setting.

The appeal was dismissed with costs and the grievance inquiry was remanded to proceed.

In this criminal appeal as of right, the Court considered whether the confinement element required for first degree murder under s. 231(5)(e) was made out where the accused blocked the victim from escaping before the killing.

The Court held that the trial judge was entitled to find that the forcible or unlawful confinement was distinct and independent from the act of killing.

The appellate intervention substituting second degree murder was therefore unwarranted.

The conviction for first degree murder was reinstated and the appeal was allowed.

In this criminal appeal as of right, the Court considered whether evidence obtained after an unlawful police detention should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms following a breach of s. 9.

Adopting the reasons of the intermediate appellate court judge, the Court held that the weighing of the relevant exclusion factors did not support excluding the impugned evidence.

The conviction was therefore left undisturbed.

The appeal was dismissed from the bench with brief oral reasons.

In a criminal appeal as of right based on a dissent, the appellant argued ineffective assistance of trial counsel and resulting unfair trial.

The Court applied the two-part test requiring proof of counsel incompetence and a resulting miscarriage of justice.

It held that, although the dissent identified critical deficiencies, the reasons did not establish how those deficiencies caused a miscarriage of justice.

The Court was not persuaded that any form of miscarriage of justice occurred and dismissed the appeal.

On a motion to extend the suspension of the declaration of constitutional invalidity granted in an earlier physician-assisted death ruling, the moving party sought a six-month extension.

The Court held that the federal election delay constituted extraordinary circumstances justifying only a four-month extension.

The Court also granted an exemption for Quebec in relation to specified provincial end-of-life care provisions and permitted eligible individuals to seek judicial authorization from superior courts during the extension period.

A partial dissent would have granted only the four-month extension and refused both exemption requests.

Special costs were awarded on a full indemnity basis.

The appellant challenged an order for a new trial after the court below set aside an acquittal on a sexual assault charge.

The dispositive issue was whether the trial judge’s failure to instruct the jury on taking reasonable steps to ascertain consent could reasonably have had a material bearing on the acquittal.

The Court agreed with the majority below that the instructional error met that threshold.

The appeal was dismissed and the new trial order stood.

The appellant challenged a provincial appellate decision that had set aside an acquittal for manslaughter and ordered a new trial.

The Court addressed corroboration and hearsay issues arising from the trial judge's treatment of confirmatory evidence.

A majority concluded that the appeal should be allowed substantially for the reasons given in the dissenting reasons below and restored the acquittal.

The result confirms that the identified hearsay-test error did not affect the trial outcome.

In an appeal concerning transportation regulation, the appellant sought to invalidate amending rail interswitching regulations on the basis that the regulator followed improper governmental direction in the rule-making process.

The appellant accepted that the regulator had statutory authority and that a presumption of proper administrative action applied.

The Court held that no evidentiary foundation was provided to rebut that presumption.

The appeal was dismissed with costs to the federal respondent.