Criminal and Quasi-Criminal Law - SCC

The appellant appealed a unanimous decision of the Alberta Court of Appeal that set aside a trial acquittal on one count of sexual assault and substituted a conviction pursuant to s. 686(4)(b)(ii) of the Criminal Code.

The trial judge had erred in law both by admitting evidence of the complainant's prior sexual activity and by finding an air of reality to the defence of honest but mistaken belief in communicated consent.

The Supreme Court dismissed the appeal, holding that the defence had no air of reality and the prior sexual activity evidence was inadmissible, such that the Court of Appeal properly substituted a conviction.

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 Crown appealed a Court of Appeal decision restoring stay applications for abuse of process that a trial judge had summarily dismissed following a Vukelich hearing.

The accused had alleged systemic police misconduct and inhumane conditions of confinement prejudicing their right to a fair trial.

The Supreme Court of Canada dismissed the Crown's appeal and held that the correct threshold for summary dismissal of applications in the criminal law context is whether the application is manifestly frivolous — a rigorous standard requiring that the frivolous nature of the application be obvious on the face of the record.

The trial judge erred by failing to assume the truth of the alleged facts and inferences and by applying an insufficiently rigorous threshold that slid towards the merits of the underlying applications.

The Crown appealed an acquittal entered by the Quebec Court of Appeal arising from the respondent's refusal to provide a roadside breath sample under s. 254(2)(b) of the Criminal Code when the demanding officer did not have an approved screening device (ASD) in his possession.

The Supreme Court of Canada held that the word 'forthwith' in s. 254(2)(b) must be interpreted in accordance with its ordinary meaning — immediately or without delay — and that the absence of an ASD at the scene at the time a demand is made is not an unusual circumstance justifying a flexible interpretation of that requirement.

A demand made when no ASD is present is therefore invalid, and a driver cannot be criminally liable for refusing to comply with a demand that it was physically impossible to comply with.

The Crown bears the burden of establishing unusual circumstances to justify any departure from the immediacy requirement.

The appeal was dismissed and the acquittal upheld.

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.

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 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.

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 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.