January: Recent SCC Decisions

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Recent Supreme Court of Canada and Appeals Courts decision synopses graciously authored and provided by Professor Eugene Meehan and Supreme Advocacy LLP. The full website is accessible at https://supremeadvocacy.ca/

Criminal Law: Aiding & Abetting

Cowan v. R., 2020 SKCA 77 (39301)
Following a trial before a judge sitting alone, Mr. Cowan (appellant on the appeal as of right/Respondent on the leave application) was acquitted of armed robbery and of having his face masked with intent to commit robbery. The theories of the Crown (Respondent on the appeal as of right/Applicant on the leave application) at trial were Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory. A majority of the C.A. allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial on the robbery charge. Although it dismissed the Crown’s arguments under the principal theory, the majority was satisfied the trial judge made a legal error in the application of s. 21(1)(c) and s. 22(1) of the Criminal Code, by restricting himself to consideration of whether the Crown had proven Mr. Cowan abetted or counselled the principal offender(s). That error had a material bearing on Mr. Cowan’s acquittal, because it led the trial judge to overlook relevant and probative evidence which strongly supported a finding of guilt. The majority then considered remedy and held a new trial should be ordered. It said the Crown’s appeal with respect to the acquittal on the principal theory was dismissed, so the new trial should proceed only on the question of whether Mr. Cowan was guilty of robbery as a party, on the basis of abetting or counseling. Jackson J.A., dissenting, would have dismissed the Crown’s appeal in its entirety. She agreed with the majority that the Crown had not discharged the burden upon it to justify a new trial on the basis the trial judge made an error of law when he concluded Mr. Cowan had not personally committed the offence of robbery. However, she also concluded the trial judge did not err by limiting himself to considering two named individuals only as being principals only to the offence, as he was responding to the evidence and submissions. If the trial judge did commit an error of law, Jackson J.A. was of the view it was not of sufficient materiality for the court to overturn the acquittal and order a new trial. “The application for leave to appeal…filed by Her Majesty the Queen, is granted.”

Criminal Law: Constitutionality of Mandatory Minimums 

R. v. Sharma2020 ONCA 478 (39346)
In 2016, the Respondent, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act  (“CDSA ”). At the time of the commission of the offence, the Respondent was 20 years old and had no prior criminal record. A Gladue report was prepared, and expert evidence was tendered on sentencing to explain the link between colonialism and racism to the criminalization of Indigenous women. After initially recommending a sentence in the range of 6 years, the Crown reduced its recommendation during the sentencing hearing to 18 months imprisonment. The Respondent sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two‑year mandatory minimum sentence under s. 6(3) (a.1 ) of the CDSA and of ss. 742.1 (b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found the two‑year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA  violated s. 12  of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1 (b), and he dismissed the s. 15 challenge to s. 742.1 (c). The Respondent was sentenced to 18 months imprisonment, less one month for pre‑sentence custody and other factors. The Respondent appealed and, with the Crown’s consent, also brought a constitutional challenge to (e)(ii) of the Criminal Code. A majority of the C.A. allowed the appeal. Sections 742.1 (c) and 742.1(e)(ii) were found to infringe both ss. 7  and 15(1)of the Charter, and the infringement could not be justified under s. 1. The majority held the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment. “The application for leave to appeal…is granted.”

Criminal Law: Drive-by Shooting

Russell, et al. v. R., 2020 BCCA 108 (39274)
The three Applicants, Ms. Dingwall, Mr. Russell, and Mr. Richet, were convicted of aggravated assault and various firearm offences in connection to a drive-by shooting occurring outside a house in Mackenzie, British Columbia. At trial, the Crown’s case was based on circumstantial evidence. The trial judge concluded Mr. Russell and Mr. Richet were guilty as principals or aiders or abettors for all charges. Ms. Dingwall was found guilty as an aider or abettor for the charges relating to the drive-by shooting and as a principal or aider or abettor for the charges related to the burning of a truck. The three Applicants appealed their respective convictions. The majority at the B.C.C.A. dismissed the appeals. First, the majority held the verdicts were not unreasonable. There was agreement with the trial judge no inference other than guilt was available given the evidence and absence of evidence, assessed logically, and in light of human experience and common sense. The majority also disagreed with the arguments that (1) there was a failure to consider each accused separately; (2) the principle in R. v. Thatcher, [1987] 1 S.C.R. 652 is inapplicable in a trial before judge alone (this principle being the law is indifferent to whether the accused personally committed the offence as a principal or aided and abetted another, so long as the court is satisfied beyond a reasonable doubt the accused did one or the other); and (3) there was a failure to provide adequate reasons. In dissent, Butler J.A. disagreed with the disposition of Ms. Dingwall’s appeal relating to the drive-by shooting charges. He would have allowed her appeal with respect to counts 3, 4 (discharging a firearm with intent to wound), count 5 (intentionally discharging a firearm while being reckless as to the life or safety of another person) and count 6 (committing aggravated assault), and directed acquittals for those offences. In his view, the trial judge erred in concluding the only rational inference to be drawn from the evidence was Ms. Dingwall aided or abetted in the offences described under those counts. To Butler J.A., the trial judge failed to properly consider the lack of any evidence about Ms. Dingwall’s activities before and during the shooting offences, and failed to consider the absence of evidence given her potential liability as a party, rather than a principal, to those offences. As Ms. Dingwall’s participation in the offences was not the only rational inference on the evidence, the Crown could not be taken to have met its burden of proof and the trial judge’s verdict was therefore unreasonable. “The motion for an extension of time to serve and file the joint application for leave to appeal is granted. Leave to appeal from the judgment of the Court of Appeal for British Columbia…is granted to Christopher Ryan Russell and Kelly Michael Richet only on the charges for which Meranda Leigh Dingwall can appeal as of right — counts 3 to 6 — based on Butler J.A.’s dissent at the Court of Appeal. Leave to appeal is denied to all three applicants on all of the other counts for which they were convicted and whose convictions were unanimously upheld by the Court of Appeal.”

Criminal Law: “Dissociative Act Manslaughter” 

Wu v. R., 2020 BCCA 128 (39313)
There is a publication ban in in this case, in the context of second degree murder of a spouse. “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.”

Criminal Law: Fraud 

Lu v. R., 2020 QCCA 625 (39242)
The Respondent Crown alleged the Applicant, Ms. Lu, had committed fraud over $5,000 on the government and had conspired with Ms. Zhao to commit that fraud. The offences were connected with the purchase of a daycare centre involving Ms. Zhao. The Court of Québec found Ms. Zhao had, at Ms. Lu’s request, served as a prête‑nom for the purchase of the daycare centre and the prosecution had shown Ms. Lu had intentionally participated in a scheme to deceive the government, a scheme that had in fact caused it economic loss. Ms. Lu was convicted of the fraud and conspiracy charges laid against her. The C.A. unanimously allowed the appeal in part, set aside the conviction on the count of conspiracy and dismissed the appeal on the count of fraud. It found the judge had not erred in assessing Ms. Lu’s credibility and the guilty verdict on the count of fraud was reasonable in light of the evidence. “The application for leave to appeal…is dismissed.”

Criminal Law: Municipal Corruption 

Bergevin v. R., 2020 QCCA 658 (39291)
In 2013, the Applicant, Mr. Bergevin, gave a sum of money to a man named René Lafrance, a sum that was given to the mayor of the city of Châteauguay. Mr. Bergevin was charged with three offences in connection with the giving of that sum of money (conspiracy, breach of trust, municipal corruption). The Court of Québec convicted Mr. Bergevin on the count of municipal corruption (s. 123(1) of the Criminal Code) and acquitted him on the other counts. It found from the evidence Mr. Bergevin intended to aid Mr. Lafrance to commit the offence of corruption and he could not have been unaware Mr. Lafrance was committing the offence. The C.A. dismissed the appeal. It held the trial judge had not erred in finding the Crown had proved the essential elements of the offence of municipal corruption beyond a reasonable doubt. “The application for leave to appeal…is dismissed.”

Criminal Law: Right to Counsel 

Catellier v. R., 2020 QCCA 850 (39342)
Mr. Catellier was charged with breaking and entering a dwelling‑house and committing assault therein, and with committing assault while carrying a weapon. He argued his right protected by s. 10(b) of the Charter had been violated because he had not had a reasonable opportunity to contact counsel of his choice before being questioned by the police. The Court of Québec found Mr. Catellier’s right to retain and instruct counsel without delay had not been violated because he had not been diligent in exercising his right. The police could therefore proceed with the interview. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Second Degree Murder 

Herlichka v. R., 2020 ONCA 307 (39322)
Mr. Herlichka assaulted Mr. Mixemong while intoxicated. Mr. Mixemong later died at hospital. Mr. Herlichka was charged with second degree murder. He pled guilty to manslaughter. The jury charge in part directed the jury to decide the extent of consumption of alcohol and drugs by Mr. Herlichka and the effect it had on his ability to form an intention either to kill Mr. Mixemong or mean to cause him bodily harm with the foresight the likely consequence was death and was reckless whether death ensued or not. The jury found Mr. Herlichka guilty of second degree murder. The C.A. dismissed an appeal. “The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

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