February: Recent SCC Decisions

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Criminal Law: Right to Counsel

R. v. Dussault2020 QCCA 746 (39330)
The Respondent, Patrick Dussault, was arrested for murder and arson. Before his trial, he moved to exclude from the evidence an incriminating statement he had made to the police while being questioned; the reason he gave was the statement had been obtained as the result of a violation of his right to counsel protected by s. 10(b). A voir direwas held. The trial judge dismissed the motion and found the statement admissible in evidence. At trial, the jury found second degree murder. The Respondent appealed the verdict. He argued the trial judge had erred in dismissing the motion to exclude the incriminating statement and in finding his right to counsel under s. 10(b) had not been violated. The Respondent submitted, in his telephone conversation with his lawyer, the latter had started to advise him but had not finished doing so, and the refusal of the police to allow the Respondent to continue consultation when his lawyer arrived at the police station was a violation of the police duty to ensure the application of s. 10(b). The C.A. allowed the appeal, set aside the guilty verdict and ordered a new trial. “The application for leave to appeal…is granted.”

Criminal Law: DUI; Dangerous Driving

Courchene v. R., 2020 MBCA 68 (39325)
Mr. Courchene lost control of his vehicle and his passenger suffered serious injuries. He was charged with dangerous driving causing bodily harm and impaired driving. A toxicologist gave opinion evidence based on blood samples taken just over two hours after the crash he was intoxicated at the time of the accident. An accident reconstruction expert opined he lost control of his vehicle on the shoulder of the highway while speeding in less than ideal conditions. From skid marks on the highway, the trial judge inferred an attempt to pass another vehicle on its right-hand side. The trial judge did not rely on the evidence of several witnesses. The trial judge convicted of dangerous driving causing bodily harm and impaired driving. The C.A. dismissed an 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.”

Criminal Law: Full Answer & Defence

R. v Sandeson2020 NSCA 47 (39390)
Mr. Sandeson was charged with first degree murder. His defence counsel hired a private investigator. The investigator helped develop the defence strategy. Without defence counsel’s knowledge, the investigator also assisted the police officers who were investigating the murder. At trial, Crown counsel disclosed the private investigator had helped police. The defence moved for a mistrial. The trial judge found a breach of the duty to disclose but denied a mistrial. He held an adjournment and further cross‑examination would remedy the breach. Trial continued. A jury convicted Mr. Sandeson of first degree murder. He appealed his conviction. The C.A. found the failure to disclose the conduct of the investigator and the police had precluded full answer and defence. It declared a mistrial and ordered a new trial. “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: Possession for the Purposes 

Stewart v. R., 2020 ABCA 252 (39335)
Ms. Stewart was stopped in a routine traffic stop and arrested. Her vehicle was searched. Police found 80 pounds of marijuana and 1 kilogram of cocaine hidden in feed bags. At trial, she testified she had been paid to courier marijuana and she had done so twice before. She testified she never touched the bags or looked inside them and she had no idea there was cocaine in them. The trial judge convicted Ms. Stewart of possession of cocaine for the purposes and possession of marihuana for the purposes. The C.A. dismissed a cross‑appeal from the conviction for possession of cocaine for the purposes. “The application for leave to appeal…is dismissed.”

Criminal Law: Threats; Probation  

Boast v. R., 2020 ONCA (39478)
Mr. Boast was in prison when he became embroiled in an altercation with a corrections officer about whether his cell lights should be on or off. Two officers witnessed the altercation. Crown counsel led evidence Mr. Boast said to the officer something akin to “Wait until I get released. I’ll get you in the street”. The officer testified he perceived that as a threat. The officer asked Mr. Boast if he had made a threat and Mr. Boast replied with something akin to “I don’t know what you’re talking about. I didn’t say anything”. Mr. Boast was convicted of uttering a threat and breach of probation. A summary conviction appeal judge refused to admit fresh evidence and dismissed the appeal. The C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”

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