Credit to the team at Supreme Advocacy
Leaves Granted
Criminal Law/Media: Confidentiality Orders
Canadian Broadcasting Corporation, et al. v. R., 2022 QCCA 984 (40371)
There is a publication ban in this case; a sealing order; certain information not available to the public, in the context of staying criminal proceedings against a police informer. “The applications for leave to appeal…are granted. The motion by Lucie Rondeau, in her capacity as Chief Justice of the Court of Quebec, to be added as an intervener on the applications for leave to appeal and on the appeals is granted. The intervener is permitted to serve and file a factum not to exceed ten (10) pages in length and book of authorities, if any, within six (6) weeks following the date of service of the appellants’ factums, and is granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeals. The request to include in the intervener’s factum certain elements from the records of the trial court or the Court of Appeal is dismissed, without prejudice to the intervener’s right to file a motion under Rule 59(1)(b) of the Rules of the Supreme Court of Canada.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Police Texting as Dealer
Campbell v. R., 2022 ONCA 666 (40465)
Police seized a cellphone during a search incident to the arrest of a known drug dealer. The phone was displaying incoming text messages on its screen. The police believed the messages revealed a transaction for heroin, which would likely be laced with fentanyl, was in progress. The police impersonated the drug dealer by responding to the text messages, and arranged to have the drugs delivered to the dealer’s residence. Applicant Dwayne Campbell arrived at the residence and was arrested. Mr. Campbell was charged under the Controlled Drugs and Substances Act. At trial, Mr. Campbell brought a motion to exclude evidence, claiming his rights under s. 8 of the Charter had been infringed by the police action in using the dealer’s phone to communicate with him. The trial judge rejected Mr. Campbell’s claim he had a reasonable expectation of privacy in the text messages, and concluded the likelihood the drugs were laced with fentanyl created exigent circumstances that justified the warrantless use of the drug dealer’s cellphone. Mr. Campbell was convicted and sentenced. The Ont. C.A. held Mr. Campbell did have a reasonable expectation of privacy in his electronic communications, but the police action was justified by the exigent circumstances doctrine. Consequently, there was no breach of Mr. Campbell’s s. 8 rights. The Ont. C.A. dismissed Mr. Campbell’s appeal from his conviction and sentence. “The application for leave to appeal…is granted.”
Source: SCC Today: 3 Leaves & 37 Dismissed
Leaves Dismissed
Criminal Law: Dangerous Driving; Police EDR Evidence
R. v. Major, 2022 SKCA 80 (40384)
The Respondent drove his pickup truck at high speed into an intersection where it collided with a semi-truck to whom the Respondent was required to yield. The collision killed three of his six passengers and injured the three others; none of them were wearing seatbelts. An experienced RCMP accident reconstructionist extracted relevant information about the vehicle’s speed and brake application in the seconds preceding the collision from the pickup truck’s event data recorder (“EDR”). The reconstructionist had the technical skills and tools to extract this information but was not familiar with the underlying function of the EDR or the software tools he used to complete the extraction. The data he extracted appeared to show the Respondent was travelling more than 50 km/h over the speed limit until he applied the brakes 1.2 seconds before the collision. The Applicant Crown sought to lead this data at the Respondent’s trial. The trial judge admitted the data. The Respondent was found guilty of dangerous driving and criminal negligence. The S.K.C.A. allowed the Respondent’s appeal and ordered a new trial. “The motion for an extension of time to serve and file the response is granted. The application for leave to appeal…is dismissed.”
Source: SCC Today: 1 Leave Granted & 11 Dismissed
Criminal Law: Dangerous Offender Designation
N. v. R., 2022 ABCA 48 (40355)
There is a publication ban in this case, in the context of dangerous offender designation. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Source: SCC Today: 1 Leave Granted & 11 Dismissed
Criminal Law: Third Party Records
The Canadian Broadcasting Corporation v. British Columbia (Attorney General), 2022 BCCA 170 (40266)
An accused charged with sexual assault was approved for and completed an Alternative Measures program. The charge was stayed. Media entities filed a petition in the B.C.S.C. seeking an order granting them access to records related to the accused’s Alternative Measures program, as a third party records application. The petition was dismissed. The B.C.C.A. quashed a notice of appeal. “The motions for an extension of time to serve and file the application for leave to appeal and the reply are granted. The application for leave to appeal…is dismissed.”
Source: SCC Today: 1 Leave Granted & 11 Dismissed
Criminal Law: 10(b)
Turgeon v. R., 2022 SKCA (40358)
Two police officers testified they saw the Applicant driving a truck in an erratic and dangerous fashion which they at first believed to be consistent with vehicle theft but later they thought it indicated the driver was impaired. After stopping the vehicle, the officer questioned the Applicant and he replied he had had four beers. The officer noticed the Applicant had trouble keeping his eyes open, they were red and glassy and his speech was slurred, and so advised him he had a reasonable suspicion he had alcohol in his body and asked him to take the ASD test in the police cruiser. He failed the test and the officer then made the breath demand and advised him of his right to counsel. The Applicant brought an application alleging violations of his ss. 8, 9, 10(a) and 10(b) Charter rights. The trial judge found there was no arbitrary detention and s. 9 of the Charter was not breached. The Applicant’s s. 10(b) right had not been breached. After conducting a Grant analysis respecting the s. 10(a) breach, the evidence was not excluded. The Summary Conviction Appeal judge held there was no s. 10(a) violation, and the appeal was dismissed. The Sask. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 1 Leave Granted & 16 Dismissed
Criminal Law: Mandatory Minimums
Ookowt, et al. v. R., et al., 2020 NUCA 5 (39349)
Both of the Applicants are Inuk and pled guilty to s. 244.2(1)(a) of the Criminal Code for intentionally discharging a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place. The offence has a maximum sentence of 14 years and a minimum sentence of four years. The Applicants filed a notice of constitutional challenge arguing the mandatory minimum sentence violates s. 12 . Both sentencing judges found the four year mandatory minimum sentence in s. 244.2(3)(b) of the Criminal Code violates s. 12 of the Charter, and struck down the provision. The sentencing judges determined a fit sentence for both Applicants was two years less one day. The NU C.A. allowed the Crown appeals, set aside the constitutional invalidity rulings, and imposed a four year sentence for both Applicants. “The applications for leave to appeal…are dismissed.”
Source: SCC Today: 1 Leave Granted & 11 Dismissed
Criminal Law: Sexual Assault; Sexual History Evidence
M. v. R., 2022 BCCA 288 (40438)
There is a publication ban in this case, in the context of sexual assault & sexual history evidence. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 1 Leave Granted & 11 Dismissed
Criminal Law: Assault; Criminal Harassment
F.H. v. R., 2022 QCCA 964 (40441)
There is a publication ban in this file, in the context of assault, criminal harassment, repeated communications charges. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Delay
Kelly v. R., 2022 NBCA 46 (40444)
The Applicant was charged with theft over $5K and fraud over $5K. As a result of the delay caused by the investigator’s prolonged illness and court closures due to COVID-19, the trial concluded beyond the 18 month presumptive ceiling from the date the information was laid to the conclusion of the trial. The Provincial Court judge dismissed the Applicant’s s. 11(b) Charter application. The lead investigator’s prolonged illness was out of the Crown’s control and constituted exceptional circumstances. The Applicant was convicted of both counts. The theft over $5K was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The N.B. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Fresh Evidence; Hearsay
Downey v. R., 2022 NSCA 59 (40440)
Mr. Downey was convicted by a jury for the second degree murder of Mr. McInnis and the attempted murder, unlawful confinement, and kidnapping of Mr. Thompson. The Crown’s theory was an attempted robbery with accomplices resulted in Mr. Downey fatally shooting Mr. McInnis and shooting Mr. Thompson after he had been bound and transported to a graveyard. On appeal, Mr. Downey applied to admit fresh evidence consisting of hearsay evidence one of the accomplices made inculpatory out-of-court statements to a private investigator and the police. The N.S. C.A. dismissed the fresh evidence motion and the appeal. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Fresh Evidence; Hearsay
Downey v. R., 2022 NSCA 59 (40487)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Homicide; Hearsay
McMorris v. R., 2020 ONCA 844 (40464)
Mr. Coombs was shot to death by three assailants. Witnesses saw one shooter drop a black hoodie as he fled. Evidence placed Mr. McMorris near the scene of the shooting and his DNA was the only DNA found on the hoodie. Mr. Bent pleaded guilty to being one of the shooters but refused to testify at Mr. McMorris’s trial. A witness told police Mr. Bent told him he was the shooter who discarded the hoodie, however, in an intercepted jail cell conversation with the same witness, Mr. Bent implicated Mr. McMorris as a shooter. Trafford J. denied motions to admit the witness’s hearsay evidence. A jury convicted Mr. McMorris of first degree murder. The Ont. C.A. dismissed an appeal. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Sentencing
Vaillancourt v. R., 2020 QCCA 1586 (40290)
The accused, Luc Vaillancourt, a criminal lawyer at the time of the events, was convicted by a Court of Québec judge of conspiracy and trafficking in drugs intended for his client in custody, contrary to s. 5(1) and (3)(a) and (a.1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code. He was sentenced to imprisonment for six years. The Qué. C.A. dismissed Mr. Vaillancourt’s appeal from the conviction but allowed his appeal from the sentence in part in order to subtract 111 days to take account of the time spent in remand. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”
Source: SCC Today: 5 Leaves Granted & 32 Dismissed
Criminal Law: Contempt
Overstory Media Inc., et al. v. Attorney General of British Columbia, et al., 2022 BCSC 1039 (40370)
There is a publication ban in this case, in the context of criminal contempt for breach of an injunction. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 3 Leaves & 37 Dismissed
Criminal Law: Hearsay
Faria v. R., 2022 ONCA 608 (40466)
Victoria Doyle was beaten and strangled to death in her home. The Applicant and Ms. Doyle attended the same New Year’s Eve party on the night of her death. Ms. Doyle returned home after the party; the Applicant followed her there uninvited. There is no direct evidence of what occurred in Ms. Doyle’s home to cause her death, but her blood was found on the Applicant’s winter jacket. Over the months preceding her death, Ms. Doyle made statements, verbally and by text message, describing the deterioration of her intimate relationship with the Applicant. These statements tended to characterize the Applicant as violent and obsessive. At trial, the Crown relied in part upon Ms. Doyle’s statements to allege the Applicant murdered her while committing the offence of criminal harassment, and he intended Ms. Doyle’s fear for her safety, thus elevating the murder to first-degree murder under s. 231(6) of the Criminal Code. The Applicant objected to the admission of Ms. Doyle’s statements on the basis they were needlessly repetitive and therefore prejudicial. The Applicant also sought a directed verdict on first degree murder under s. 231(6) on the basis there was insufficient evidence to satisfy that section’s prerequisites. The trial judge found Ms. Doyle’s statements were admissible hearsay. The trial judge also held there was sufficient evidence of the elements of first degree murder required by s. 231(6) to leave that path to liability with the jury. The jury found the Applicant guilty of first degree murder and the trial judge entered a conviction accordingly. The Ont. C.A. dismissed the Applicant’s appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Source: SCC Today: 3 Leaves & 37 Dismissed
Criminal Law: Impaired Operation of a Vessel Causing Death
Sillars v. R., 2022 ONCA 510 (40460)
The Applicant took an eight-year-old child canoeing during the April spring runoff. The water was frigid and moving swiftly. The boy did not know how to canoe and was a weak swimmer. They were headed towards High Falls to retrieve a piece of debris wedged against a yellow barrier warning of danger due to the falls. The canoe capsized, the child was swept over the falls and died. The Applicant made it to shore. The Applicant was convicted in a judge-alone trial of impaired operation of a vessel causing death and criminal negligence causing death. The Ont. C.A. dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Source: SCC Today: 3 Leaves & 37 Dismissed
Criminal Law: Jury Instructions re Mental Health/After-The-Fact Conduct
Lawlor v. R., 2022 ONCA 645 (40500)
The Applicant had engaged in a sexual encounter with two other men in a park. A number of hours later, the body of one of those men was found in the park; he had died due to external neck compression. The Applicant had mental health difficulties and had consumed both psychiatric medication and alcohol around the time he was in the park with the victim and the third man. The Applicant had made several statements both before and after the victim’s death he wanted to harm and kill gay men, and he had at times carried a rope and a knife to do so. In the days following the killing, the Applicant searched the internet for news with respect to the discovery of a body in the park. A jury convicted the Applicant of first degree murder. A majority of the Ont. C.A. dismissed his appeal and held the trial judge’s instructions to the jury had been appropriate. In dissent, Nordheimer J.A. would have allowed the appeal on two grounds: (1) the trial judge failed to instruct the jury on the Applicant’s mental health as it relates to the intent required for murder and (2) the trial judge failed to provide a limiting instruction on the use of after-the-fact conduct evidence. Nordheimer J.A. would have ordered a new trial. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 3 Leaves & 37 Dismissed
Criminal Law: Search & Seizure
Pampena v. R., 2022 ONCA 668 (40470)
The police executed a search warrant at the Applicant’s home and seized drugs and money. After executing the warrant, the police discovered the affiant had mistakenly inverted two numbers in the Applicant’s address in the Information to Obtain, rendering the warrant invalid. At trial, the Crown conceded the error in the search warrant rendered it invalid, and therefore the search was a warrantless search. The Applicant was convicted of possession of cocaine for the purpose of trafficking, possession of marihuana, and possession of property obtained by crime. The trial judge ruled the evidence admissible under s. 24(2) of the Charter. The Ont. C.A. dismissed the conviction appeal. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 3 Leaves & 37 Dismissed
Criminal Law: Search & Seizure
Simon v. R., 2022 QCCA 634 (40294)
Following the receipt of information from a registered informant and seven days of surveillance, the police had reasonable and probable grounds to believe the Applicant, Mr. Simon, was trafficking in heroin. They obtained warrants to search the Applicant’s vehicle and residence as well as those of another individual of interest in the investigation. The police executed the warrants. They arrested the Applicant first behind the wheel of his car and suspended his right to counsel until the other individual was arrested. The suspension lasted just over four hours. During that time, the Applicant was not questioned. When the Applicant, his vehicle and his residence were searched, the police seized a total of 205.8 grams of heroin, two cell phones, $109,876 in cash, small transparent blue bags, bagging equipment and accounting documents. The Applicant was charged with possession of heroin for the purposes and possession of things obtained by the commission of an offence. At trial, he sought to have the evidence excluded under the Charter, alleging the grounds set out in the information in support of the warrant to search his residence were insufficient and his right to counsel had been infringed. The Court of Québec dismissed the motions; the evidence adduced in connection with the motions was entered on the merits and the Applicant was convicted of the offences charged. The Qué. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed.”
Source: SCC Today: 3 Leaves & 37 Dismissed