SCC 2022

The accused was convicted at trial of second degree murder after stabbing the deceased six times during a bar altercation.

The majority of the Court of Appeal overturned the conviction and ordered a new trial, finding an air of reality to the defence of provocation.

The Crown appealed as of right.

The Supreme Court of Canada, applying a correctness standard of review, found no error in the trial judge's determination that there was no air of reality to the provocation defence.

On the evidence, the accused did not act 'on the sudden' before passion could cool — his reaction was the culmination of an altercation he both instigated and anticipated, and he had time and opportunity to reflect before stabbing the deceased.

The appellant appealed 13 domestic violence-related convictions, arguing the trial judge erred in applying the W.(D.) framework and in assessing the complainant's credibility.

The majority of the Court of Appeal below had upheld the convictions.

The Supreme Court dismissed the appeal, holding that the trial judge correctly instructed herself on W.(D.), that assessing complainant credibility before the accused's does not automatically reverse the burden of proof, and that credibility findings responsive to live issues at trial attract significant deference on appeal.

The Court clarified the proper use of absence of motive to lie and lack of embellishment as credibility factors, noting that lack of embellishment cannot be used to bolster a complainant's credibility but may be considered in assessing motive to lie.

The appellant was arrested for possession of a controlled substance after a police officer, responding to a traffic collision, observed him conceal a pill later identified as gabapentin — a prescription drug the officer mistakenly believed was a controlled substance under the CDSA.

The arrest was based on a mistake of law, rendering it unlawful and arbitrary under s. 9 of the Charter, and the searches of the appellant's person and car incident to that arrest breached s. 8.

The majority held that although all impugned evidence was obtained in a manner that triggered s. 24(2), the Charter-infringing conduct was inadvertent and at the less serious end of the culpability scale, the impact on Charter-protected interests was moderate, and society's interest in adjudicating serious firearms and drug offences strongly favoured admission.

The evidence was admitted and the convictions upheld.

Brown J. dissented, finding that admitting the evidence would bring the administration of justice into disrepute.

Police responding to a domestic violence call arrested the accused in the basement of his home and, incident to that arrest, conducted a visual clearing search of an adjoining basement living room, discovering methamphetamine in plain view.

The majority held that the common law standard for search incident to arrest must be modified where the area searched is outside the arrested person's physical control at the time of arrest: the police must have reasonable suspicion of a safety risk, and the search must be conducted in a manner tailored to the heightened privacy interests in a home.

Applying that standard, the majority found no breach of s. 8 of the Charter and dismissed the appeal.

The dissent (Karakatsanis, Brown and Martin JJ.) would have required reasonable suspicion of an imminent threat and found the standard unmet, favouring exclusion of the evidence under s. 24(2).

Côté J. agreed with the dissent on the standard and the s. 8 breach but would not exclude the evidence under s. 24(2).

The Crown appealed a Quebec Court of Appeal decision that reduced a fine in lieu of forfeiture under s. 462.37(3) of the Criminal Code from $10,000,000 to approximately $171,397.57, on the basis that courts have discretion to limit the fine to the offender's profit from criminal activity.

The Supreme Court held that courts have no such discretion: the fine in lieu must equal the full value of the property that constituted proceeds of crime in the offender's possession or under his control.

The Court clarified that while apportionment between co-accused is permissible to avoid double recovery, the offender bears the burden of establishing its appropriateness, and the Crown has a duty to mitigate double recovery risk on its own initiative where possible.

On the facts, the respondent failed to meet his burden and the $10,000,000 fine (less the restitution order of $828,602.43) was restored.

The appellant was convicted by jury of possession of a loaded restricted firearm after a nightclub incident.

At trial, the trial judge made four rulings curtailing defence counsel's cross-examination of the sole Crown witness linking the appellant to the gun.

The majority of the Supreme Court dismissed the appeal, finding three of the four rulings were proper exercises of trial management power and the one erroneous ruling was saved by the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, as there was no substantial wrong or miscarriage of justice.

The dissent would have allowed the appeal, finding that trial management powers cannot be used to exclude relevant and material evidence, and that the erroneous ruling — which prevented cross-examination on a prior inconsistent statement going to the heart of the indictment — was not harmless and could not be saved by the proviso.

The accused was convicted of second degree murder at trial.

The Court of Appeal for Newfoundland and Labrador quashed the conviction and ordered a new trial, holding that the trial judge failed to properly instruct the jury on manslaughter as an included offence, specifically by not explaining the distinction between murder and manslaughter with sufficient clarity regarding the element of intent.

The Crown appealed to the Supreme Court of Canada.

A majority of the Supreme Court dismissed the appeal, agreeing with the majority of the Court of Appeal that the jury instruction on manslaughter was inadequate.

The order for a new trial was upheld.

The respondent was convicted of assault, aggravated assault, and mischief following a trial in Provincial Court.

He appealed on the basis of ineffective assistance of counsel, arguing his trial counsel had failed to advise him of his right to elect his mode of trial.

The majority of the Court of Appeal allowed the appeal and ordered a new trial.

The Supreme Court of Canada reversed, holding that ineffective assistance of counsel requires both a performance component and a prejudice component, and that the loss of the right to elect the mode of trial alone does not constitute a miscarriage of justice where the accused fails to demonstrate a reasonable possibility he would have elected differently.

The appeal was allowed and the matter remanded to the Court of Appeal to address the remaining grounds of appeal.

The appellant First Nation government sought advance costs to fund treaty rights litigation against the Crown, arguing that despite having access to financial resources, those resources were required to address pressing community needs including housing deficits, lack of infrastructure, and high unemployment.

The Supreme Court clarified the impecuniosity requirement for advance costs: a First Nation government with access to financial resources may satisfy the requirement by demonstrating that those resources are genuinely needed to meet pressing needs, which are not limited to bare necessities but extend to matters within the broad mandate of First Nation governance.

The Court found the case management judge erred in failing to make sufficiently particularized findings on the cost of pressing needs and available surplus resources.

The appeal was allowed and the matter remitted to the Court of Queen's Bench of Alberta for reconsideration on a more complete record, with solicitor-client costs awarded to the appellant in all courts.

The Crown appealed as of right from a Quebec Court of Appeal decision that set aside the accused's convictions for aggravated assault, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace, and ordered a new trial.

The trial judge had rejected the accused's self-defence claim under s. 34 of the Criminal Code, finding that he acted out of vengeance rather than to defend himself.

The Supreme Court held that the Court of Appeal majority erred by reassessing the evidence without identifying a palpable and overriding error in the trial judge's analysis, and failed to defer to the trial judge's privileged position in assessing credibility.

The convictions were restored.

Two appellants were convicted of sexual assault by the Court of Appeal for Alberta after having been acquitted at trial, where the trial judge had applied an impermissible principle of broad advance consent.

The Supreme Court held that the trial judge erred in law by failing to address the scope of the complainant's consent and whether it was withdrawn, making the trial judge's credibility findings on subjective consent undeserving of deference.

The Court upheld the substituted convictions under s. 686(4)(b)(ii) of the Criminal Code, finding the Cassidy test satisfied because the trial judge's explicit and implicit findings established both appellants continued sexual activity with the complainant after she cried out 'No' without taking steps to ascertain whether consent was withdrawn.

The Kienapple argument raised by one appellant was rejected as the offences involved different subsets of facts and addressed different forms of harm.

The Crown appealed a Quebec Court of Appeal decision that quashed four convictions and entered a stay of proceedings based on a violation of the right to be tried within a reasonable time under s. 11(b) of the Charter.

The trial judge had found a s. 11(b) infringement but declined to stay proceedings on the basis that the accused had not been prejudiced by the delay.

The Court of Appeal erred by entering a stay without re-examining the reasonableness of the delays, even though the record contained a detailed statement of admissions.

The Supreme Court held that a functional analysis of the trial judge's reasons showed he considered the relevant Morin factors and reached the correct conclusion.

The defence-caused delays, including multiple unsuccessful applications and insistence on conflicted counsel, must be subtracted, and the transitional exceptional circumstance under Jordan further supported the conclusion that s. 11(b) was not infringed.

The Crown appealed a majority decision of the Quebec Court of Appeal upholding a stay of proceedings in favour of the accused for violation of the s. 11(b) Charter right to be tried within a reasonable time.

The Supreme Court applied the Jordan framework to characterize two disputed delay periods.

The Court held that an 84-day delay was attributable to the defence due to the illegitimate manner in which counsel brought a late motion for an unredacted copy of the information, but that a 112-day delay could not be entirely attributed to the defence given institutional delay and the trial judge's lack of initiative.

After apportioning the second period, the net delay still exceeded the 30-month Jordan ceiling at 950 days.

The appeal was dismissed and the stay of proceedings upheld.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking, challenging the lawfulness of a strip search conducted incident to his arrest.

The majority held that there were reasonable and probable grounds justifying the strip search, relying on confidential source information, items consistent with drug trafficking found at the scene, and an officer's observation of the appellant reaching toward the back of his pants.

The majority further held that the appellant's failure to cross-examine officers on the impugned information undermined his hearsay argument.

Côté J., concurring, found a s. 8 Charter breach but declined to exclude the evidence under s. 24(2), applying the Grant framework and concluding that exclusion would bring the administration of justice into disrepute.

Appeal dismissed.