SCC 2019

The appellant was charged with possession of methamphetamine and cocaine for the purpose of trafficking.

The trial judge acquitted the accused on the trafficking charges but convicted him of the lesser included offence of simple possession.

The Saskatchewan Court of Appeal found that the trial judge had applied the wrong legal test with respect to possession for the purpose of trafficking and entered convictions on the trafficking charges.

The Supreme Court of Canada dismissed the appeal substantially for the reasons of the Court of Appeal, upholding the trafficking convictions.

The Crown appealed a conditional sentence imposed on an offender convicted of historical sexual offences (gross indecency) committed between 1979 and 1987.

The conditional sentence had not existed at the time the offences were committed, was available for a discrete intermediate period, but was no longer available under the sentencing provisions in force at the time of sentencing in 2017.

The majority held that s. 11(i) of the Charter confers a binary right — entitling an offender only to the lesser of the punishments applicable at the time of the offence and at the time of sentencing — and not a global right to the least onerous punishment available at any point in the intervening interval.

The dissent would have dismissed the appeal as moot following the respondent's death and would have upheld 30 years of consistent judicial interpretation giving s. 11(i) a global reading.

The appeal was allowed, though no new sentence was imposed given the respondent's death.

The Crown appealed a majority decision of the Court of Appeal for British Columbia that ordered a new trial for an accused convicted of sexual assault and sexual interference.

The Court of Appeal majority found the trial judge erred in the jury charge regarding the indictment, in responding to the jury's question during deliberations, and in failing to provide further credibility instructions.

The Supreme Court of Canada allowed the appeal substantially for the reasons of the dissenting judge, finding the trial judge's charge and response to the jury's question were adequate.

Three additional issues raised by the respondent for the first time at the Supreme Court — character evidence limiting instruction, prior consistent statements, and interpretation of 'single transaction' under s. 581(1) of the Criminal Code — were addressed but did not require a new trial.

Convictions for sexual assault restored and judicial stay on sexual interference count maintained.

The appellant was arrested by Ontario Provincial Police officers while walking to a counter-protest flag rally, having committed no offence and presenting no threat of violence.

The police relied on a purported common law power to arrest someone acting lawfully in order to prevent an apprehended breach of the peace by others.

Applying the ancillary powers doctrine, the Court held that no such common law power exists: the power is not reasonably necessary because statutory arrest powers already address situations where individuals resist or obstruct officers taking less intrusive measures, and effectiveness of a police action alone cannot justify an arrest if less intrusive means were available.

The Court restored the trial judge's award of damages for battery, wrongful arrest and false imprisonment, and found no new trial was warranted on the issue of excessive force because the arrest itself was unlawful.

A journalist was subpoenaed to testify in support of an accused's motion for a stay of proceedings on the ground of abuse of process, seeking to identify government sources responsible for leaking confidential information.

The Court considered the new federal statutory scheme for the protection of journalistic sources in s. 39.1 of the Canada Evidence Act, enacted by the Journalistic Sources Protection Act, S.C. 2017, c. 22.

The majority held that the new scheme shifts the burden of proof to the party seeking disclosure, establishes reasonable necessity as a threshold requirement, and requires a balancing of the public interest in the administration of justice against the public interest in preserving the confidentiality of journalistic sources.

The appeal against the Quebec Court of Appeal's finding that it lacked jurisdiction was dismissed.

The appeal against the Superior Court's authorization of disclosure was allowed in part due to the Crown's change of position, with the case remanded to the court of original jurisdiction for reconsideration once new evidence from a government investigation is disclosed.

The dissent would have set aside the disclosure authorization outright, finding fundamental legal errors in the Superior Court's application of the new statutory scheme.

A land surveying company brought a class action on behalf of Ontario land surveyors whose plans of survey had been digitized, stored, and copied by the province's electronic land registry service provider without payment of royalties.

The appellant argued that Crown copyright under s. 12 of the Copyright Act did not vest in the registered and deposited plans.

The majority held that the comprehensive provincial land registration regime gave the Crown complete control over the publication process, satisfying the requirements of s. 12.

A concurring minority agreed on the outcome but adopted a different interpretive framework, requiring both that the work be published 'by or under the direction or control' of the Crown and that the work qualify as a 'government work' serving a public purpose.

The appeal was dismissed without costs.

Two sets of appellants (manufacturers of optical disc drives) appealed the certification of a price-fixing class proceeding in British Columbia.

The majority held that the discoverability rule applies to extend the two-year limitation period in s. 36(4)(a)(i) of the Competition Act, that fraudulent concealment can toll a limitation period without requiring a special relationship between the parties, that umbrella purchasers (persons who bought from non-defendant manufacturers) have a cause of action under s. 36(1)(a), that s. 36(1) does not bar concurrent common law and equitable claims, and that a plaintiff's expert methodology need only establish that overcharges reached the indirect-purchaser level to certify loss as a common issue.

Côté J. dissented in part, finding that the discoverability rule does not apply to s. 36(4)(a)(i) and that umbrella purchasers have no cause of action under s. 36(1).

Both appeals were dismissed.

The Crown appealed after the Court of Appeal ordered a new trial for an accused convicted of sexual interference.

The Crown had relied on the complainant's pregnancy as corroborating evidence of the assault, while the application judge had dismissed the accused's s. 276 application to cross-examine the complainant on other possible causes of the pregnancy.

The majority held that both the application judge and the trial judge erred, but applied the curative proviso under s. 686(1)(b)(iii) on the basis that the cross-examination that actually occurred allowed the defence to adequately test the Crown's evidence.

The dissent would have dismissed the appeal, holding that the restriction on cross-examination deprived the accused of an entire process of questioning and that the errors were neither minor nor harmless.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

The Crown appealed from a Court of Appeal decision holding that the judicial interim release provisions of the Criminal Code do not apply to peace bond proceedings under s. 810.2.

The Supreme Court of Canada held unanimously that the arrest and JIR provisions of Part XVI of the Criminal Code apply, with necessary modifications, to peace bond proceedings under s. 810.2 and all other peace bond provisions.

The Court found that ss. 810.2(8), 810(5), and 795 operate together to incorporate the arrest and summons provisions of Part XVI into the peace bond scheme, and that the modifications required are changes in points of detail only, not substantive changes in the law.

The Court also provided practical guidance on the ladder of increasingly coercive measures applicable to peace bond defendants, emphasizing that arrest and pre-hearing detention are measures of last resort given that the defendant is not accused of any crime.

The accused sought to introduce evidence of a prior ongoing sexual relationship with the complainant — a 'friends with benefits' arrangement — in a sexual assault trial under s. 276 of the Criminal Code.

The majority held that the evidence failed to satisfy s. 276(2) because the accused did not identify any specific, legitimate purpose for the evidence beyond a bare invocation of 'context', meaning its only operative relevance was to support the prohibited twin-myth inferences.

The improper admission of the evidence, and the subsequent broadening of sexual activity evidence at trial, might reasonably have had a material bearing on the acquittal.

Brown J. dissented, finding the trial judge applied the correct legal principles, that the relationship evidence did not solely derive its relevance from twin-myth reasoning, and that a new trial was procedurally unfair given that the Crown itself relied on the sexual nature of the relationship to advance its theory of the case.

The appellant trustee challenged a formal demand for information and documents issued by the Quebec tax authority (ARQ) to an out-of-province bank branch as beyond the ARQ's territorial jurisdiction.

The ARQ had sent the demand to a Calgary branch of the National Bank of Canada pursuant to s. 462(2) of the Bank Act, which requires notifications pertaining to bank customers to be sent to the branch of account.

The Court unanimously dismissed the appeal, holding that s. 462(2) — not s. 462(1) — applied to the demand, that the Bank Act does not treat a branch as a distinct entity from the bank for purposes of such a demand, and that complying with s. 462(2)'s procedural requirements did not render the ARQ's actions extraterritorial or ultra vires, since enforcement could only be effected in Quebec against a bank operating within the province.

The applicant brought a motion to stay an individual exemption granted by the Ontario Court of Appeal, which had exempted the respondent from a 12-month suspension of a declaration of invalidity striking down sex offender registry provisions as unconstitutional in their application to persons found not criminally responsible by reason of mental disorder and granted an absolute discharge.

The applicant sought the stay pending disposition of a leave to appeal application.

The single judge found no special circumstances warranting re-examination of the Court of Appeal's prior refusal to grant the same stay.

The applicant also failed to establish a tenable case for irreparable harm, as the respondent's exemplary 17-year track record provided cogent evidence of minimal risk of reoffending, and there was no apparent reason to deprive the respondent of his s. 15(1) Charter right in the interim.

Motion dismissed without costs.

Two appellants — a religious congregation and a religious institution managed by its members — sought to overturn authorization of a class action brought by victims of alleged sexual assaults committed by members of the congregation decades ago.

The majority held that the Superior Court had made numerous errors of fact and law in denying authorization under the four conditions of art. 575 of the Code of Civil Procedure, and that the Court of Appeal was entitled to substitute its own assessment on all conditions.

The majority further held that the three-year period under art. 2926.1 para. 2 C.C.Q., which applies upon the death of the victim or the author of the act, does not create a term for forfeiture but remains a prescriptive period, with the starting point continuing to be when the victim becomes aware of the connection between the assault and the injury.

The minority would have allowed the appeal against the religious institution for lack of sufficient factual allegations, while dismissing the appeal as to the congregation.

The appellant, a young racialized man, was gathered with four others in a private backyard at a Toronto housing co-operative when three police officers entered without warrant, consent, or warning and immediately questioned the men, demanding identification.

The appellant fled when asked what was in his satchel and was arrested in possession of a firearm, drugs, and cash.

The majority held that the arbitrary detention crystallized the moment police entered the backyard, not merely when they asked about the satchel, applying the Grant framework with particular attention to the racialized context and private-property setting; the resulting s. 9 breach was serious and the evidence was excluded under s. 24(2).

The dissent would have found the detention began only when the officer directed inquiry at the appellant, and in any event would have admitted the evidence given the trial judge's unchallenged findings that the police acted in good faith with legitimate investigatory purposes and the seriousness of the offences.

The accused was charged with first degree murder in the death of an Indigenous woman and sex worker found dead in his hotel room with an 11 cm wound in her vaginal wall.

At trial, the accused testified at length about prior sexual activity with the deceased without having made an application under the s. 276 regime of the Criminal Code, and the jury was not given any limiting instruction on the permissible uses of that evidence.

The jury acquitted the accused of both first degree murder and the included offence of unlawful act manslaughter.

The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial on first degree murder.

The majority of the Supreme Court held that the trial judge erred by failing to comply with the mandatory s. 276 regime, and that the resulting failure to inoculate the jury against mistakes of law related to the defence of honest but mistaken belief in communicated consent warranted a new trial on unlawful act manslaughter.

However, a new trial on first degree murder was not warranted as the errors did not materially bear on the murder acquittal, which turned on a battle of expert evidence on whether a sharp object was used.

The dissent would have upheld the Court of Appeal's order of a new trial on both murder and manslaughter.

The accused was found in possession of a loaded handgun, ammunition and cocaine when stopped by police while walking along a street late at night.

The trial judge found that several of the accused's constitutional rights were infringed by police but declined to exclude the evidence under s. 24(2) of the Charter, convicting the accused of various firearms offences and possession of cocaine for the purpose of trafficking.

A majority of the Court of Appeal held that the trial judge committed reversible error in assessing the seriousness of the Charter-infringing police conduct, excluded the evidence and entered acquittals.

The Supreme Court of Canada, by majority, allowed the Crown's appeal and restored the convictions, substantially for the reasons of the dissenting judge at the Court of Appeal, while leaving open the question of whether remedies other than exclusion of evidence may be available under s. 24(1) of the Charter when dealing with s. 24(2).

The appellant was charged with a provincial driving offence in British Columbia and applied to be tried in French pursuant to s. 530 of the Criminal Code.

The provincial court dismissed the application, holding that the 1731 Act mandated English-only proceedings.

The Supreme Court of Canada held that s. 133 of the Offence Act incorporates s. 530 of the Criminal Code, granting the right to be tried in either official language in provincial offence proceedings.

The Court further held that the provincial court's refusal to honour this right constituted a jurisdictional error amenable to immediate certiorari review, and that an appeal following conviction was not an adequate alternative remedy given the fundamental and personal nature of the language right violated.

The appellant, an investor, sought damages from specific-project corporations on the basis of knowing assistance in a breach of fiduciary duty arising from a complex multi-million dollar real estate fraud perpetrated by a married couple.

The couple convinced investors to invest in specific-project corporations to acquire and hold commercial real estate, but instead diverted the funds for personal use.

The application judge dismissed the knowing assistance claim, finding the fraudulent wife's knowledge could not be imputed to the specific-project corporations.

The majority of the Court of Appeal allowed the claim.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting judge below that the knowing assistance claim must fail.

The Court clarified that while Livent permits courts to decline to apply corporate attribution where the public interest so requires, the minimal criteria from Canadian Dredge must always first be satisfied.

An immigration detainee applied for habeas corpus after 13 months in immigration detention, challenging the legality of his detention on the grounds that it was lengthy and of indeterminate duration and was being served in inappropriate maximum-security lockdown conditions, both in alleged violation of ss. 7 and 9 of the Charter.

The chambers judge declined jurisdiction on the basis that the Immigration and Refugee Protection Act provided a complete, comprehensive and expert statutory scheme at least as broad and advantageous as habeas corpus (the Peiroo exception).

The majority of the Supreme Court held that the Peiroo exception does not bar habeas corpus applications in all immigration matters; rather, a court must examine whether the statutory scheme is as broad and advantageous as habeas corpus with respect to the specific grounds raised.

The IRPA scheme fell short in three ways regarding lengthy, indeterminate detention: the onus on detainees is less advantageous; the scope of federal court review is narrower than superior court review on habeas corpus; and the IRPA offers a less timely remedy.

The appeal was dismissed, with Abella J. dissenting on the basis that the IRPA scheme, properly interpreted, provides review at least as broad and advantageous as habeas corpus.