SCC 2022

The Crown appealed after the British Columbia Court of Appeal set aside a second degree murder conviction, holding that hearsay testimony from the accused's brother regarding an overheard phone call in which the accused admitted to killing the victim was inadmissible.

The majority of the Supreme Court of Canada held that the trial judge did not err in admitting the brother's testimony as a party admission: the evidence was capable of non-speculative meaning and thus relevant, it fell within the party admission exception to the hearsay exclusionary rule, and the trial judge did not err in the discretionary balancing of probative value against prejudicial effect.

The Court also held there was no error in the trial judge's answer to the jury's mid-deliberation question regarding the definition of bodily harm.

The dissenters agreed with the majority's analytical framework but concluded that, on the facts, assessing the relevance of the overheard statements was an exercise in pure speculation and the evidence should not have been admitted.

The appellant was charged with sexual assault after engaging in vaginal intercourse without a condom, having been expressly told by the complainant that her consent was conditional on condom use.

The trial judge granted a no-evidence motion and dismissed the charge on the basis that the complainant had consented to all the physical acts involved, leaving only a fraud analysis under s. 265(3)(c) of the Criminal Code.

The majority of the Supreme Court held that when condom use is a condition of consent, it forms part of the 'sexual activity in question' under s. 273.1(1), and intercourse without a condom is a fundamentally different physical act than intercourse with one, such that there was evidence of a lack of subjective consent.

The concurring minority agreed the appeal should be dismissed but held that Hutchinson applies and all condom-related consent must be analyzed under the fraud provision, articulating a detailed framework for horizontal stare decisis.

The appeal was dismissed and a new trial ordered.

The Crown appealed a Court of Appeal decision that had excluded a murder confession and ordered a new trial after finding multiple Charter breaches.

Police executed a search warrant at the respondent's home, transported him to the police station and interviewed him for over three hours without advising him of his right to counsel.

Three weeks later, after arrest and a brief Legal Aid consultation, the respondent asked mid-interview to call his father to obtain legal counsel; police refused and he subsequently confessed.

The majority held the respondent was psychologically detained on the day of the warrant execution contrary to s. 10(b), and that police committed a further s. 10(b) breach by refusing a second consultation when there was objective reason to question whether the initial Legal Aid advice had been understood.

The majority further held that admission of the evidence would bring the administration of justice into disrepute under s. 24(2) given the seriousness of the breaches and their significant impact on the respondent's Charter-protected interests, particularly in light of his youth, Indigenous background, and minimal prior exposure to the police.

The appellant was convicted of second degree murder after the trial judge found that the victim's unlawful confinement in a moving truck had ended when the victim jumped out and therefore the murder was not committed 'while committing' unlawful confinement under s. 231(5)(e) of the Criminal Code.

The Court of Appeal substituted a conviction for first degree murder, holding that unlawful confinement continued after the victim escaped from the truck and that the confinement and murder were part of a single transaction.

The Supreme Court of Canada dismissed the appeal, confirming that unlawful confinement does not require physical restraint in an enclosed space and that coercive restraint through violence, fear, and intimidation suffices.

The Court held that the victim remained unlawfully confined as he ran for his life, and that the unlawful confinement and murder were temporally and causally connected, forming a single continuous transaction.

The appellants challenged the Federal Court of Appeal's decision setting aside the Copyright Board of Canada's tariff determination, which had held that s. 2.4(1.1) of the Copyright Act created a separate compensable 'making available' right triggering royalties both when works are made available online and again when downloaded or streamed.

The majority held that the Board's interpretation violated the principle of technological neutrality and was inconsistent with the text, structure, and purpose of the Act; correctness was the applicable standard of review as concurrent first instance jurisdiction between courts and the Board constitutes a sixth category of correctness review.

Section 2.4(1.1) was interpreted as clarifying only that s. 3(1)(f) applies to on-demand streams and that a work is performed as soon as it is made available for on-demand streaming, with Canada's obligations under art. 8 of the WIPO Copyright Treaty satisfied through a combination of existing performance, reproduction, and authorization rights.

The concurring minority would have applied a reasonableness standard but agreed the Board's decision was unreasonable for disregarding binding precedent and the principle of technological neutrality.

Appeal dismissed.

The appellant law society brought disciplinary proceedings against a member lawyer in 2012, resulting in a finding of guilt on four charges and disbarment in 2019.

The respondent applied for a stay of proceedings on the basis of inordinate delay amounting to an abuse of process; the Hearing Committee dismissed the application but the Court of Appeal granted the stay, setting aside the penalty.

The Supreme Court clarified the three-step test from Blencoe for determining whether administrative delay constitutes an abuse of process: the delay must be inordinate, it must have directly caused significant prejudice, and a final assessment must find the delay manifestly unfair or otherwise bringing the administration of justice into disrepute.

The Court also held that in statutory appeals, questions of procedural fairness and abuse of process are subject to appellate standards of review, not the correctness standard applicable on judicial review.

Applying these principles, the majority found no palpable and overriding error in the Hearing Committee's conclusions that the delay was not inordinate and that no significant prejudice was established, and accordingly allowed the appeal.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

A not-for-profit disability rights organization sought public interest standing to challenge the constitutionality of British Columbia's mental health legislation permitting forced psychiatric treatment without patient consent.

After individual co-plaintiffs withdrew, the chambers judge dismissed the claim for lack of standing; the Court of Appeal remitted the matter for fresh consideration.

The Supreme Court dismissed the appeal, holding that legality and access to justice do not merit particular weight in the Downtown Eastside framework and that a directly affected individual co-plaintiff is not required for a public interest litigant to establish a sufficient factual setting.

Applying the three Downtown Eastside factors cumulatively, the Court granted the organization public interest standing and awarded special costs on a full indemnity basis throughout.

Two family trusts petitioned for equitable rescission of transactions that had resulted in unanticipated income tax liability after the Canada Revenue Agency changed its interpretation of s. 75(2) of the Income Tax Act following the Tax Court's decision in Sommerer.

The majority held that a limiting principle of equity and the principles of tax law stated in Fairmont Hotels and Jean Coutu bar taxpayers from resorting to equity to undo freely agreed upon transactions in order to avoid unanticipated adverse tax consequences arising from the ordinary operation of a tax statute.

The prohibition against retroactive tax planning applies broadly to all equitable remedies, including rescission, not only rectification.

Côté J. dissented, holding that rescission is available in strictly limited circumstances where there is a clear causative mistake of sufficient gravity, and that neither Fairmont Hotels nor Jean Coutu generally precludes equitable remedies in a tax context.

The Crown appealed a Court of Appeal decision that set aside the respondent's jury convictions for unlawful act manslaughter and unlawfully causing bodily harm in relation to two foster children who suffered severe malnutrition and dehydration in the respondent's care.

The Court of Appeal majority had found errors in the trial judge's mens rea instructions for the predicate offence of failing to provide necessaries of life under s. 215 of the Criminal Code, specifically regarding intermingling of foreseeability standards and failure to address the accused's circumstances as a secondary caregiver.

The Supreme Court majority held that the functional approach to jury charge review was not met for intervention, as the charge as a whole properly conveyed the requisite mens rea despite imperfections.

A concurring minority would have found the charge deficient but applied the curative proviso on the basis that no substantial wrong or miscarriage of justice resulted.

The appeal was allowed and convictions restored.

Child protection appeal concerning the standard of appellate review for disposition decisions under child protection legislation.

A child was apprehended by the Director of Child Protection; both the maternal grandmother and the biological father sought permanent custody at the disposition hearing.

The hearing judge awarded custody to the grandmother, finding it was in the child's best interests, but the Court of Appeal reversed and awarded custody to the father.

The Supreme Court restored the hearing judge's order, holding that appellate intervention is only warranted where there is a material error, a serious misapprehension of the evidence, or an error in law.

The Court held that a biological tie carries minimal weight in a best interests analysis and does not serve as a tie-breaker; a court may also consider the conduct of a child protection agency in determining how the status quo arose and assessing the weight of evidence presented by or through the agency.

The appellant Crown sought to uphold s. 745.51 of the Criminal Code, which authorized courts to impose consecutive 25-year parole ineligibility periods for each count of first degree murder.

The respondent, convicted of six counts of first degree murder in the Quebec City mosque attack of January 29, 2017, challenged the constitutionality of the provision.

The Supreme Court unanimously dismissed the appeal, holding that s. 745.51 violates s. 12 of the Charter because it effectively authorizes imprisonment for life without a realistic possibility of parole, which is degrading in nature and intrinsically incompatible with human dignity.

The provision was declared of no force or effect immediately and retroactively to its enactment in 2011, resulting in the respondent serving his six 25-year parole ineligibility periods concurrently for a total ineligibility period of 25 years.

The appellant mother was awarded primary residence of the children at trial and permitted to relocate approximately ten hours from the respondent father's residence.

The father successfully appealed to the British Columbia Court of Appeal, which admitted post-trial financial evidence under a test distinct from Palmer and used it to overturn the relocation order.

The Supreme Court of Canada allowed the appeal, holding that the Palmer test governs all additional evidence tendered on appeal for the purpose of reviewing the decision below, whether the evidence relates to events before or after trial.

The new evidence failed the Palmer due diligence criterion because it could have been available at trial with reasonable diligence, and its admission was not in the interests of justice given the availability of legislative variation procedures.

The trial judge's relocation analysis under Gordon v. Goertz was free from reviewable error, and the Court of Appeal wrongly intervened in the absence of a palpable and overriding error.

The appellant was tried for offences related to spousal abuse and applied for a stay of proceedings on the basis that his right to be tried within a reasonable time under s. 11(b) of the Charter had been infringed.

The trial judge included the period between the end of evidence and argument and the release of the stay decision in calculating total delay, found the net delay exceeded the Jordan presumptive ceiling, and granted the stay.

The Court of Appeal set aside the stay, holding that under R. v. K.G.K. that period should not be counted, bringing total delay below 30 months.

The Supreme Court of Canada affirmed the Court of Appeal, finding the appellant had not established that the remaining 29.25 months of delay was markedly longer than reasonable in the broader context of the trial.

The appellant was convicted of aggravated assault at trial and appealed on three grounds: erroneous admission of spontaneous utterance evidence, improper assessment of alibi evidence, and improper assessment of identification evidence.

The Saskatchewan Court of Appeal dismissed the appeal by majority, with the dissenting judge finding the trial judge failed to conduct the required analysis of identification evidence.

The Supreme Court of Canada, by majority (Moldaver, Côté, and Brown JJ.), dismissed the appeal substantially for the reasons of the majority of the Court of Appeal.

Karakatsanis and Martin JJ. dissented and would have allowed the appeal for the reasons of the Court of Appeal dissent.

The Crown appealed from the Court of Appeal for Ontario's finding that s. 33.1 of the Criminal Code, which bars accused persons from raising a defence of self-induced extreme intoxication akin to automatism, violates ss. 7 and 11(d) of the Charter and is not saved by s. 1.

The Court dismissed the appeals on the basis of the companion decision in R. v. Brown, 2022 SCC 18, which held s. 33.1 unconstitutional and of no force or effect.

The Court further held that ordinary horizontal stare decisis principles govern prior s. 52(1) declarations of unconstitutionality issued by superior courts within the same province, applying the Spruce Mills criteria, and that a trial judge is not strictly bound to follow such a declaration unless it is distinguishable or one of the recognized exceptions to stare decisis applies.

The Court also quashed the respondent Chan's application for leave to cross-appeal for want of jurisdiction under s. 691 of the Criminal Code, as no statutory route exists to challenge a new trial order where a conviction was set aside.

The appellant was charged with aggravated assault and break and enter after consuming alcohol and psilocybin mushrooms and committing violent acts while in a state of extreme intoxication akin to automatism.

The Crown invoked s. 33.1 of the Criminal Code to bar the defence of self-induced extreme intoxication.

The Supreme Court of Canada unanimously held that s. 33.1 violates ss. 7 and 11(d) of the Charter by permitting conviction without proof of mens rea or voluntariness, and that these violations could not be saved under s. 1 because the provision is not minimally impairing and its deleterious effects outweigh its salutary benefits.

Section 33.1 was declared unconstitutional and of no force or effect, and the trial acquittal was restored.

The Crown appealed from a stay of proceedings granted on the basis of unreasonable delay under s. 11(b) of the Charter in circumstances where the accused raised first-trial delay only after a new trial was ordered.

The Supreme Court held that after a new trial is ordered, the delay clock resets to zero and an accused cannot raise first-trial delay in a s. 11(b) motion brought during the retrial, as this would be contrary to the duty of all parties to act proactively under the Jordan framework.

The Court further held that the presumptive ceilings established in Jordan apply to retrial delay without modification.

Applying those principles, the retrial delay of 10 months and 5 days fell well below the 30-month presumptive ceiling and was reasonable in the circumstances.

The accused was arrested on charges of murder and arson and spoke with counsel by telephone at the police station.

The lawyer indicated he was coming to meet the accused in person; the officer's ambiguous response led both the lawyer and the accused to believe the in-person meeting would occur.

Police subsequently refused to allow counsel to meet the accused and conducted an interrogation during which the accused made an incriminating statement while repeatedly expressing confusion about his lawyer's absence.

The SCC held that, in these unique circumstances, the police were required to provide a further opportunity to consult counsel before questioning, as two acts by the officer had the combined effect of undermining the legal advice received, triggering a renewed right to counsel under s. 10(b) of the Charter.

The appeal was dismissed and the exclusion of the statement under s. 24(2) was upheld.

The Crown appealed a Quebec Court of Appeal decision ordering a new trial on certain counts after the trial judge admitted, by consent of both parties, a transcript of testimony given at a first trial into a second trial commenced under s. 669.2(3) of the Criminal Code.

The Court of Appeal had required a two-part inquiry into the voluntariness of the accused's consent and the fairness of admitting prior testimony.

The Supreme Court held that s. 669.2(3) concerns jurisdiction, not evidence, and does not require any such statutory inquiry where parties have consented to filing prior testimony.

The presumption of competence of counsel applies, and absent indications vitiating consent, the judge need not intervene in counsel's tactical decisions.

The judge retains residual discretion to inquire where indications suggest consent is vitiated or trial fairness is undermined.