These are among the questions raised before the Supreme Court, in a new term featuring 13 appeals, including seven involving criminal law and seven that came to the court as-of-right.
First up for argument in the winter session, which kicks off Jan. 16, is the Crown’s as-of-right appeal from a Court Martial Appeal Court of Canada’s (CMACC) decision last February upholding, 2-1, a court martial’s sexual assault acquittal of a military member: R. v. Vu, 2023 CMAC 2.
The respondent accused gave evidence that, in line with his understanding of the Canadian Armed Forces’ (CAF) teachings about “consent” in the military’s defunct “Operation Honour,” he filmed himself engaging in oral-genital contact on a highly impaired fellow military member, with a view to protecting himself from criminal liability by recording her affirmative consent.
The case presented the Supreme Court with the opportunity to revisit vexed questions around intoxicated complainants’ capacity to consent — with which the top court grappled most recently in R. v. G.F. 2021 SCC 20.
However, in a 6-1 oral ruling from the bench Jan. 16, the top court dismissed the Crown’s appeal. The Supreme Court’s majority affirmed, “substantially for the reasons” of the majority of the court martial appeal court, that the assessment of the evidence by the military judge at first instance was thorough and did not adopt a piecemeal or narrow approach to the evidence or apply the wrong legal principles. In dissent, Justice Michelle O’Bonsawin would have allowed the appeal, and ordered a new trial, for reasons expressed by the CMACC’s dissenting judge.
“We are very happy with the result, which reinforces the importance of showing deference to trial judges,” said Major Francesca Ferguson of the Canadian Armed Forces’ defence counsel services, lead counsel for Vu, whose co-counsel were Colonel Nooral Ahmed and Commander Mark Letourneau.
University of Alberta law professor Steven Penney
Last February, the CMACC’s majority, Chief Justice Richard Bell and Justice Gary Trotter, upheld the decision of the military judge below that the Crown failed to prove an essential feature of the actus reus of sexual assault beyond a reasonable doubt, i.e., that the complainant did not subjectively consent.
But CMACC Justice Glennys McVeigh dissented vigorously, arguing the military judge did not cumulatively consider the circumstantial and direct evidence in the case. Instead, the military judge treated the video evidence as if it was definitive of the complainant’s consent and operating mind, and failed to consider in their totality the accused’s voluntary statements and their implications, including that the accused indicated multiple times that the complainant was unconscious or asleep toward the end of the impugned events and that he was aware of her high level of intoxication.
Dalhousie University law professor Elaine Craig
“I think this case demonstrates the ongoing problems with this area of sexual assault law,” she observed.
On Feb. 14, the Supreme Court will hear R. v. Agenor Archambault et al., a by-leave Crown appeal from Quebec which asks the court to interpret s. 535 of the Criminal Code, an amendment that came into force Sept. 19, 2019 restricting eligibility for preliminary inquiries to requests to the court by an accused “charged with an indictable offence that is punishable by 14 years or more of imprisonment.” Parliament did not specify whether the changes apply to: all accused people, regardless of when the offence was allegedly committed; those whose alleged offence post-dates the amendment; or those whose alleged crime precedes the amendment, but who weren’t charged until the amendment came into force.
In July 2019, in two separate cases, the respondents appeared in the Court of Québec to answer charges for indictable offences that were punishable by a maximum of 14 years of imprisonment, but that had been punishable by a maximum of 10 years of imprisonment at the time they were allegedly committed.
The Quebec Court of Appeal held that the defence’s right to a preliminary inquiry vests at the time of the alleged offence where it occurred before the amendments, but the accused’s request for a preliminary inquiry took place after. The Crown’s appeal asks whether the entitlement to a preliminary inquiry is determined by the law in effect at: (a) the time of the offence, as per the Quebec Court of Appeal; (b) the time of the first appearance in court, or (c) the time the accused elects their mode of trial and requests a preliminary inquiry (as per the intervener Ontario Attorney General, relying on the Ontario Court of Appeal’s decision in R. v. R.S., 2019 ONCA 906.) If Quebec’s appeal court is correct, any individual charged with an indictable offence committed before Sept. 19, 2019 will be entitled to a preliminary inquiry, Ontario’s AG says in its factum.
A second question raised in Archambault is whether an accused person who is not personally liable to a maximum sentence of 14 years or more can nevertheless request a preliminary inquiry under the new s. 535 of the Criminal Code, because the same offence, if committed now, is punishable by 14 years or more. If the answer is yes, anyone charged with sexual offences against children occurring before July 17, 2015 (when the 10-year maximum penalty increased to 14 years) — although not personally liable to a maximum of 14 years’ imprisonment — would be entitled to a preliminary inquiry based on subsequent increases in the maximum penalties, the intervener Ontario Crown says in its factum “Attaching preliminary inquiry eligibility to ‘classes’ of offences, and not the maximum penalty the offender faces is contrary to Parliament’s express intent.”
However, the intervener Criminal Lawyers’ Association of Ontario (CLA), which agrees with the Quebec Court of Appeal that the right to a preliminary inquiry was acquired when the alleged offence was committed, argues on the second question that “there is no principled reason to subject accused persons and complainants in child sex offence cases to different procedures based on whether the allegations pre-date or post-date July 2015.”
“The ‘personal liability’ approach would create confusion in how preliminary inquiries should proceed where the allegations on one information cover a timeframe of both before and after July 2015,” the CLA urges in its factum. “These mischiefs are avoided by taking an offence-type approach to s. 535.” The offence-type approach focuses on the available maximum penalty at the time s. 535 was enacted and not on an accused’s personal liability.
The intervener Canadian Civil Liberties Association (CCLA) also supports the Quebec Court of Appeal’s view that “the elimination of preliminary hearings applies prospectively only, and that the relevant date for determining whether the amendment applies is the date that the offence was allegedly committed. “This interpretation is required in this case because preliminary hearings provide a substantive protection to accused people and their elimination affects the accused’s substantive rights,” the CCLA’s factum argues.
On Feb. 15, the top court will hear argument in R. v. Hodgson, 2022 NUCA 9. a by-leave defence appeal in a case where the victim died in 2017 after the accused applied a one-arm choke hold to him during a Nunavut house party. The victim, a large man, had become aggressive towards the house owner and refused to leave and the accused, who was sleeping in a nearby bedroom, was asked by a guest to help remove the victim from the house.
Charged with second-degree murder, Hodgson was acquitted because the trial judge had a reasonable doubt about whether the accused had the required intent for murder. With respect to the lesser included offence of manslaughter, the trial judge concluded the Crown had not proven beyond a reasonable doubt that Hodgson did not act in self-defence pursuant to s.34 of the Criminal Code. The Nunavut Court of Appeal set aside the acquittal and ordered a new trial for second-degree murder, ruling that the trial judge’s failure to infer the requisite intent for murder from the appellant’s use of a chokehold to subdue the victim was an error.
Among other things, the defence argues the appeal court erred in concluding that the trial judge was required to infer the intent for murder from the act of a headlock, which it contends improperly imported an objective element into the assessment of mens rea for murder.
The intervener Criminal Trial Lawyers’ Association (CTLA) argues the Alberta Court of Appeal’s decision in R. v. Lemmon, 2012 ABCA 103, did not create a new legal standard mandating trial courts to find that chokeholds are “inherently dangerous,” or that a chokehold “is always an act which is more than merely transient or trifling in nature.” Rather the degree of dangerousness arising from a choking incident is fact-specific.
Moreover, even if chokeholds are inherently dangerous, the accused’s knowledge of a risk of death is insufficient to ground a conviction for murder by implied intent under s. 229(a)(ii) of the Criminal Code, Alberta’s defence counsel association urges. “Inherent dangerousness is not enough. The accused must know that their conduct will likely cause death.”
On March 21, the court will hear argument in a by-leave defense appeal from Campbell v. The King, 2022 ONCA 666, a s. 8 search and seizure case from Ontario, raising the question of the scope of privacy protection for text messages. The case has attracted 10 interveners, including the CTLA, the CLA, the Trial Lawyers Association of B.C., the attorneys general of Alberta and Ontario, Quebec’s director of criminal and penal prosecutions, and the National Council of Canadian Muslims.
The case arose when 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 in-progress a transaction for heroin, which would likely be laced with fentanyl. The police impersonated the phone's owner by responding to the text messages, and arranged to have the drugs delivered to his residence. When the accused arrived, police arrested him and seized a heroin/fentanyl mix. The accused applied unsuccessfully in the Ontario courts below to have the evidence excluded on the basis that his right to be secure against unreasonable search and seizure under s. 8 of the Charter was breached by the police’s warrantless search and seizure of his phone.
The lower courts accepted the Crown’s submission that there was no breach of the applicant’s s. 8 Charter rights, partly because the invasion of his reasonable expectation of privacy was justified by “exigent circumstances,” i.e., the imminent threat to public safety posed by fentanyl “ultimately reaching users on the street” if the applicant were not apprehended and the drugs seized. The defence argues the decisions below create an “end run” around the Supreme Court’s ruling in R. v. Marakah, 2017 SCC 59. Marakah held that a sender’s texts are sometimes entitled to Charter privacy protection, depending on “the totality of the circumstances.”
Nader Hasan, Stockwoods LLP
“These courts are chipping away at content neutrality by suggesting that s. 8 does not protect activities or relationships that society does not value,” the CCLA’s counsel Nader Hasan and Alexandra Heine of Toronto’s Stockwoods argue in the CCLA’s factum. “This is problematic. An approach that considers whether the fruits of a search revealed illegal activities as part of the analysis into whether a Charter claimant’s privacy rights are engaged is necessarily content-driven. Such an approach should be rejected outright — not only because it would undermine decades of this Court’s prior jurisprudence mandating a content-neutral approach to s. 8 and would undermine s. 8’s objective, but also because it would inject uncertainty into law enforcement’s decision-making on when to obtain a warrant.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.