SCC 2023

The appellant media organisation challenged a publication ban issued by the Manitoba Court of Appeal over an affidavit filed in wrongful conviction proceedings.

The affidavit concerned the death of a witness and contained highly sensitive personal information about the witness's spouse.

Applying the three-branch test from Sherman Estate v. Donovan, 2021 SCC 25, the Court held that court openness posed a serious risk to the spouse's dignity as an important public interest, the ban was necessary and not overbroad, and the benefits of the ban significantly outweighed its minimal effect on free expression and the open court principle.

The affidavit was not admitted as evidence and played no role in determining that a wrongful conviction had occurred.

The appellant was charged with manslaughter and firearms offences in December 2015.

Trial was scheduled within the Jordan ceiling but delays arose when the Crown refused to consent to a judge-alone trial, causing the net delay to reach approximately 35 months, exceeding the 30-month ceiling.

The trial judge denied a stay of proceedings by applying a transitional exceptional circumstance, finding the parties had reasonably relied on pre-Jordan law.

The Supreme Court held that no transitional exceptional circumstance applied: after Jordan was decided in July 2016, the parties could not have reasonably relied on the prior state of the law, and the delay was attributable to the Crown's refusal to adapt rather than insufficient time for the system to do so.

The Court also rejected a bright-line rule that would characterize all delay following defence counsel's rejection of a court-offered date as defence delay.

The appellant was convicted of offences arising from a home invasion robbery on the basis of circumstantial evidence of identity, namely DNA found on a cigarette butt in a stolen vehicle and a victim's testimony that he may have heard the appellant's last name spoken during the robbery.

The majority of the Supreme Court of Canada found the verdicts unreasonable, holding that the DNA evidence alone did not establish guilt beyond a reasonable doubt and that the trial judge misapprehended the victim's testimony and failed to address serious concerns about his reliability.

The majority set aside the convictions and substituted verdicts of acquittal.

Côté and O'Bonsawin JJ. dissented, finding the combined effect of the DNA and identification evidence reasonably supported the inference of guilt.

The appellant was convicted of first degree murder by a jury and his appeal to the Court of Appeal for Ontario was dismissed.

On further appeal to the Supreme Court of Canada, the majority allowed the appeal on the ground that the trial judge erred by failing to instruct the jury on the relevance and permitted use of evidence relating to the accused's mental health when charging on the element of intent for murder.

The majority found no error in the trial judge's failure to provide a limiting instruction regarding after-the-fact conduct evidence.

The conviction was set aside and a new trial ordered.

Kasirer J. dissented, finding the jury charge adequate in light of all the circumstances.

A peace officer convicted of aggravated assault appealed his conviction following use of force against a detainee.

The trial judge found the officer had no reasonable grounds to use force and that the force applied — striking the detainee multiple times in the head and throwing him to the ground — was unnecessary and excessive, precluding reliance on the statutory defence under s. 25(1) of the Criminal Code.

The majority of the Court of Appeal upheld the conviction on the basis that the trial judge's findings of fact were comprehensive and amply supported by the evidence.

The Supreme Court dismissed the appeal, holding that the trial judge's reasons were sufficient in law and that the findings of fact were not subject to appellate intervention.

The appellant was convicted of sexual assault and sexual interference following a jury trial.

On appeal, he argued that the trial judge erred by failing to instruct the jury to disregard improper submissions made by Crown counsel during closing address, specifically an anecdote about a personal childhood memory unrelated to the evidence.

The Court of Appeal dismissed the appeal, and the Supreme Court affirmed, holding that although Crown counsel's personal anecdote was improper, it did not render the trial unfair or result in a miscarriage of justice in light of contextual factors including the anecdote's limited prominence, the trial judge's general caution to the jury, and defence counsel's failure to object.

Five non-rights holder parents applied to the Minister to exercise discretion to admit their children to a French first language education program in the Northwest Territories, with the support of the francophone school board.

The Minister denied each application, finding the parents did not meet the categories established in the ministerial directive.

The SCC held that the Minister was required not only to consider s. 23 of the Charter but to conduct a proportionate balancing of the values underlying that provision — including preservation and development of the minority language community — against the government's interests.

Applying the Doré framework, the Court found the decisions unreasonable because the Minister gave disproportionate weight to consistency and cost, and insufficient weight to pedagogical requirements and the remedial purpose of s. 23.

The appeal was allowed and the Court of Appeal orders set aside.

The appellant was pulled over in a traffic stop and subjected to an investigative detention and sniffer dog search that breached his rights under ss. 8 and 9 of the Charter.

Following the sniffer dog's positive indication, police arrested the appellant and searched his vehicle, seizing over 100 pounds of cannabis and cash.

The trial judge found initial Charter breaches but declined to exclude the evidence under s. 24(2).

On appeal to the SCC, the majority held that the subsequent arrests and searches were consequential Charter breaches but that, absent additional or independent state misconduct, consequential breaches are unlikely to significantly increase the seriousness of the Charter-infringing conduct, and the Grant factors on balance favoured admission.

The appeal was dismissed, with Martin and Kasirer JJ. dissenting on the ground that the cumulative seriousness of all breaches and their substantial impact on the appellant's protected interests warranted exclusion.

Four British Columbia residents alleged to have participated in a transnational pump-and-dump securities manipulation scheme with links to Quebec challenged the adjudicative jurisdiction of Quebec's Financial Markets Administrative Tribunal (FMAT) over out-of-province defendants.

The majority held that while the Civil Code of Québec's private international law rules did not independently ground jurisdiction, the Quebec securities scheme — comprising the Securities Act and the Act respecting the Autorité des marchés financiers — properly interpreted in light of the Unifund sufficient connection test, conferred jurisdiction on the FMAT over appellants who had a real and substantial connection to Quebec.

The majority dismissed the appeals, finding that using Quebec as the 'face' of the scheme and injuring Quebec investors established the requisite connection.

Côté J. dissented, arguing that the majority conflated constitutional applicability of legislation with adjudicative jurisdiction, and that in the absence of express conferral of territorial jurisdiction by special statute, the C.C.Q.'s private international law rules exclusively govern, under which the FMAT lacked jurisdiction.

A municipality contracted with a constructor to repair a water main and dispatched quality control inspectors to the project site.

A pedestrian was fatally struck by construction equipment at an intersection where required safety measures — a fence and signallers — were absent.

The municipality was charged as an employer under the Occupational Health and Safety Act for failing to ensure that prescribed regulatory measures were carried out in the workplace.

On equal division, the Supreme Court of Canada dismissed the appeal, with the majority holding that proof of control over workers or the workplace is not required to establish the actus reus of the employer's duty under s. 25(1)(c); control is relevant only to the due diligence defence.

The dissent would have either remitted the matter or restored the acquittals on the basis that regulatory measures apply only to work within the employer's sphere of control.

The Crown appealed the fitness of the sentence imposed on the first respondent for child luring under s. 172.1(1)(b) of the Criminal Code, and both respondents challenged the constitutionality of the mandatory minimum sentences in s. 172.1(2)(a) and (b) as cruel and unusual punishment under s. 12 of the Charter.

The majority held that the sentencing judge committed errors in principle in imposing a five-month concurrent sentence for luring, and increased the sentence to 12 months' imprisonment to be served consecutively.

The mandatory minimum sentences of one year (indictable) and six months (summary) for child luring were found to be grossly disproportionate when applied to reasonably foreseeable offenders and declared of no force or effect under s. 52 of the Constitution Act, 1982.

The dissent would have upheld the mandatory minimums as constitutional.

The appellants, who served as presidents of a group of insurance companies under an incentive pay agreement with the majority shareholders, learned that a major company was interested in acquiring the group.

Rather than disclosing this to the shareholders, the presidents purchased the shareholders' interests and resold them at a substantial profit.

The Supreme Court of Canada held that the presidents breached both an implied contractual obligation to inform arising from the nature of the Presidents' Agreement and the obligation to perform that agreement in accordance with the requirements of good faith under arts. 1434 and 1375 of the Civil Code of Québec.

Disgorgement of profits was held unavailable as a non-compensatory remedy absent an obligation of maximalist loyalty, but damages equivalent to the appellants' profits were awarded pursuant to a rebuttable presumption that the shareholders' lost gain equalled those profits, where the appellants' own disloyal conduct prevented precise proof of injury.

The appeal was dismissed with costs.

The appellant was convicted of two counts of first degree murder and appealed on the basis that the trial judge erred by charging the jury on party liability.

The Supreme Court unanimously held that party liability was properly left with the jury as the evidence provided it with an air of reality.

The Court agreed with the dissenting judge below that the trial judge erred in his instructions on party liability, finding that the jury was never clearly told the appellant would have needed to know the principal intended to kill the victims in a planned and deliberate manner to be liable as an aider.

Nonetheless, the curative proviso under s. 686(1)(b)(iii) of the Criminal Code applied because the errors were harmless and there was no reasonable possibility the jury would have reached a different verdict.

Appeal dismissed and convictions upheld.

The Attorney General of Canada appealed from the Alberta Court of Appeal's ruling that the federal Impact Assessment Act and Physical Activities Regulations were entirely ultra vires Parliament.

The Supreme Court allowed the appeal in part, holding that the designated projects scheme is unconstitutional because it is not in pith and substance directed at regulating effects within federal jurisdiction — those effects do not drive the scheme's decision-making functions — and because the defined term 'effects within federal jurisdiction' does not align with federal legislative jurisdiction.

However, the secondary scheme in ss. 81 to 91 of the IAA, which governs projects on federal lands or outside Canada, was found to be clearly intra vires and severable.

The dissent would have upheld the entire legislation as validly directed at assessing and regulating adverse federal effects.

Media appellants challenged the application of the automatic publication ban in s. 648(1) of the Criminal Code to pre-empanelment proceedings in two unrelated criminal cases.

In the first case (Silva), the ban was imposed on a Garofoli application and a motion for a stay of proceedings for abuse of process.

In the second case (Coban), media sought a declaration that s. 648(1) applied only after the jury was empanelled.

The Supreme Court of Canada held unanimously that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5), which confers on trial judges jurisdiction to deal with matters that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

Both appeals were dismissed.

Two foreign nationals were found inadmissible on security grounds under s. 34(1)(e) of the Immigration and Refugee Protection Act for engaging in acts of violence, without any alleged link to national security or the security of Canada.

The administrative tribunals interpreted s. 34(1)(e) as not requiring such a nexus.

Applying the Vavilov reasonableness review framework, the Supreme Court held that the administrative decisions were unreasonable for failing to address critical points of statutory context, the broad consequences of the interpretation, and Canada's non-refoulement obligations under the Refugee Convention.

The Court held that the only reasonable interpretation of s. 34(1)(e) requires a nexus between the relevant acts of violence and national security or the security of Canada.

Appeals allowed and administrative decisions quashed.

The appellant was convicted of two counts of first degree murder following a jury trial in which he was self-represented and frequently excluded from the courtroom due to chronic disruptive conduct.

The trial judge appointed amicus curiae partway through the trial with a limited mandate to cross-examine Crown witnesses but instructed not to advocate on behalf of the defence.

The appellant argued that the delayed and limited appointment created an appearance of unfairness rising to the level of a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.

The Supreme Court affirmed that amicus can perform a broad spectrum of adversarial functions, including closing argument, without essentially becoming defence counsel, provided the appointment respects the accused's right to control their own defence and the amicus's duty of loyalty to the court.

The Court held that no miscarriage of justice arose on the facts, as the trial judge's discretionary decisions were not shown to have created an irregularity of sufficient gravity to shake public confidence in the administration of justice.

The appellant was convicted by a jury of participation in the activities of a criminal organization for the purpose of weapons trafficking, contrary to s. 467.11 of the Criminal Code, following an investigation into illegal firearms trafficking.

On appeal, the appellant argued that the trial judge erred in law in his jury instructions on the definition of 'criminal organization' by failing to explain that such an organization must have structure and continuity, as required by R. v. Venneri.

The Supreme Court of Canada (majority) held that the trial judge's failure to instruct the jury that a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity constituted an error of law, as the bare statutory definition is insufficient without this gloss from Venneri.

The majority further clarified the functional approach to appellate review of jury instructions, explaining that a properly equipped jury is one that is both accurately and sufficiently instructed, and that trial circumstances — including evidence, counsel's arguments, and the absence of objection — cannot substitute for a mandatory accurate and sufficient instruction on the law.

The appeal was allowed, the conviction on the criminal organization count set aside, and a new trial ordered on that count.

The appellant was charged with summary conviction impaired driving and released on an undertaking not to operate a motor vehicle for 21 months prior to sentencing.

At sentencing, the judge imposed the mandatory one-year driving prohibition under s. 259(1)(a) of the Criminal Code but backdated it to the commencement of the pre-sentence prohibition, effectively giving credit for time already served.

The Court of Appeal held that granting such credit was impermissible as it would reduce the sentence below the mandatory minimum.

The Supreme Court allowed the appeal, holding that common law judicial discretion to grant credit for a pre-sentence driving prohibition — recognized in R. v. Lacasse — is not displaced by s. 259(1)(a) or s. 719(1) of the Criminal Code, as those provisions govern the imposition of a minimum punishment and the commencement of a sentence respectively, and do not preclude a sentencing court from crediting pre-sentence prohibition time served.

The appellants challenged the constitutional validity of s. 159.3 of the Immigration and Refugee Protection Regulations, which designates the United States as a safe third country, rendering refugee claimants arriving at Canadian land ports of entry from the United States ineligible to have their claims considered in Canada.

The Court held that s. 159.3 is not ultra vires the IRPA, as the validity of a regulation is assessed at the time of promulgation.

The Court further held that s. 159.3 does not breach s. 7 of the Charter: while some effects on liberty and security of the person are causally connected to Canadian state action, the legislative scheme is neither overbroad nor grossly disproportionate given the availability of statutory safety valves that guard against real and not speculative risks of refoulement.

The s. 15 equality rights challenge, based on the disproportionate impact on women fearing gender-based persecution, was remitted to the Federal Court for determination on the merits.