In the case of Derrick Michael Lawlor v The King, Mr. Lawlor, the appellant, appealed to the Supreme Court of Canada as of right from the Court of Appeal for Ontario, on the basis of a dissenting judge. The appellant had engaged in a sexual encounter with the deceased and another man at a park. Hours later, the body of the deceased was found, and the cause of death was determined to be neck compression. The appellant suffered from mental illness and had consumed both psychiatric medication and alcohol around the time that he was in the park. The appellant had made statements before and after the deceased’s death stating that he wanted to kill gay men. In the days following, the appellant had searched the internet for news with respect to a body being found in a park. The appellant was convicted by a jury of 1st degree murder. He appealed his conviction on the basis of several deficiencies in the jury charge. The majority at the Court of Appeal dismissed the appeal on the basis that the instructions to the jury were appropriate. Justice Nordheimer, dissenting, would have allowed the appeal on the basis that the judge failed to instruct the jury with respect to the appellant’s mental health and level of intoxication as it related to the intent for murder, and on the basis that the judge failed to provide a limiting instruction for the use of after the fact conduct evidence.

CASE SUMMARY- TREVOR LINDSAY V. HIS MAJESTY THE KING At what point should a police officer lose the protection offered by section 25 of the Criminal Code, justifying the use of as much force as necessary, so long as the officer acted on reasonable grounds and used that force for something the officer was required or authorized to do? This appeal comes to the Supreme Court of Canada as of right from the Court of Appeal of Alberta. Officer Lindsay was charged with aggravated assault against an individual in his custody following an incident, much of which was captured on video. Following a brief interaction with the prisoner, Officer Lindsay was seen punching him in the face and, after another interaction, three more times to the back of the head. The most significant injury, a skull fracture, occurred when, during the course of either throwing the man to the ground or, as the officer testified, lowering him to the ground, the man’s head hit the pavement.  The officer explained that he was concerned initially that the prisoner, whom he had been advised was an intravenous drug user with a history of being aggressive to police, might have a serious infectious disease such as hepatitis C, which could pose a risk should he spit at him or his partner in the cruiser. This concern grew after the first blow, which bloodied the man’s nose, after which he spit some blood at the cruiser. The officer went on to explain that he meant to lower the man to the ground by the collar of his hoodie but inadvertently got hold of the hood. The slack between the hood and the collar resulted in his not being able to lower him in the controlled fashion he meant to employ, and the resultant contact led to injuries sufficiently serious that defence counsel conceded they were enough to constitute aggravated assault, should the judge conclude that an assault had, in fact occurred. The trial judge found that there were no reasonable grounds for the first strike as there was no objective basis for any fear. The force used thereafter was excessive. The majority of the Court of Appeal found no error in the trial judge’s finding that neither section 25 nor section 34 were of assistance to the officer. Wakeling, J.A., in dissent, felt that the trial judge ought to have considered several key questions, including whether a reasonable person with the officer’s training would have considered the assessment of risk reasonable; whether the officer felt the force used was no more than necessary; whether a reasonable person with the officer’s training would have considered that the belief in the need for force and the use of no more force than necessary was reasonable; and whether the harm likely to result to the officer if less force was used should be considered in the context of the degree of harm the detainee might suffer with the use of force chosen. In particular, he emphasized the need for the trial judge to consider what act(s), in particular, constituted the offence here, as it was essentially the act of putting the man to the ground which resulted in the significant head injury, and what level of intention would have to be proven with respect to the harm which resulted from that conduct. In today’s society, the use of force by police has been the subject of considerable scrutiny, whether in Canada or elsewhere. The Supreme Court is in a position to provide important clarification on the extent to which such use of force may be justified, such that a criminal conviction ought not to result therefrom.

The appeal to the Supreme Court of Canada originates from Court Martial Appeal Court (CMAC). Prior to the appeal being filed, multiple decisions came out by military judges which held that there is a lack of institutional independence because of their risk of prosecution under the military’s code of Service Discipline. It leaves military judges at risk of being influenced by a senior member of the Canadian Armed Forces. The separate roles is a fundamental postulate of the rule of law. Therefore, judicial independence must not only exist in fact, but it must also be seen to exist to a reasonable person. The appellants are members of the Canadian Armed forces who had various charges laid against them. The appeals focus on whether the role and status of military judges as military officers in the chain of command compromises their institutional independence, denying the appellants their right to a hearing under s.11 (d) of the Charter. The question in issue before the Supreme Court of Canada are the following: 1)    Since Genereux, do military judges deciding cases still raise a reasonable apprehension of bias? 2)    Has there been significant societal change which dissipates this court’s concern that a trial before a military judge is a matter of practical necessity? 3)    If so, does the military status of judges, prescribed under the National Defence Act’s legislative scheme, lead an informed person, viewing the matter realistically and practically, to conclude that there is an apprehension of bias contrary to s.11 (d) of the Charter? 4)    If so is this violation saved under s 1 of the Charter? 5)    If not, what is the appropriate constitutional remedy under s 52 of the Constitution Act, 1982?

In this episode, you will hear the oral submissions from the Appellant Don Johnson vs His Majesty the King. Mr. Johnson was charged with two counts of first-degree murder of brothers, Justin, and Jerome Waterman. The three of them were known to be friends. At trial before a judge and jury, Mr. Johnson denied the crime and that he was the shooter. Further, he alleged that a man named Marcus Cumsille likely murdered the brothers. The Crown argued that it was unlikely Mr. Cumsille was the shooter.  At trial, the Judge instructed the jury, that even if Mr. Johnson was not the shooter, he must be found guilty if there was any intention to assist the shooter, in other words, if he was found to be aiding. After the jury convicted Mr. Johnson, he appealed to the Court of Appeal for Ontario on the basis that the trial judge did not have a factual basis for the party instruction and that a finding of guilt on such was not open to the jury. The majority dismissed the appeal. In his dissenting remarks, Nordheimer J.A. would have allowed the appeal. He was of the view that there was no evidentiary foundation for party liability that the jury could consider. Furthermore, there was no reason to believe that Mr. Johnson would have assisted the shooter in committing the crime if he was not the shooter.  Mr. Johnson is now appealing to the Supreme Court of Canada as of right. 

Mr. Metzger was convicted of two counts of robbery, breaking and entering to steal a firearm, and disguise with intent in relation to 2017 home invasion. Mr. Metzger was convicted largely on the strength of DNA evidence which tied him to a cigarette butt found within the getaway vehicle 11 hours after the robbery. The trial judge concluded that this evidence permitted him to infer both recent possession of the vehicle and guilt in the robbery. The defence appealed the convictions to the Court of Appeal of Alberta on the grounds that the trial judge misapprehended the cigarette butt evidence when he found that it supported the conclusion that Mr. Metzger was in recent possession of the vehicle. The defence further argued that the trial judge misapplied the doctrine of recent possession in his reasons. A majority of the Court of Appeal upheld the verdict, holding that the trial judge did not misapprehend the evidence or err in law by relying on the doctrine of recent possession to infer guilt. Veldhuis J.A., dissenting, would have granted the appeal and substituted an acquittal, holding that the trial judge misapplied the doctrine of recent possession and that the verdict was unreasonable. The defendant appealed as of right to the Supreme Court of Canada. One of the main issues to be determined is whether the trial judge could reasonably convict on the basis of the cigarette butt evidence and the complainant’s testimony - that he may have heard the name "Metzger" spoken during the robbery.

Il y a une ordonnance de non-publication dans le dossier L’intimé, H.V., a plaidé coupable à une infraction de leurre, poursuivie par voie sommaire, commise entre le 31 juillet et le 9 août 2017. Lors de la détermination de la peine, l’intimé a soulevé l’inconstitutionnalité de la peine minimale obligatoire de 6 mois prévue à l’al. 172.1(2)b) du Code criminel, en vertu de l’art. 12 de la Charte canadienne des droits et libertés. Il a été d’avis qu’une peine d’emprisonnement serait injustifiée. La poursuite a réclamé une peine entre 9 et 12 mois d’emprisonnement avec une probation. La Cour du Québec a déclaré la peine minimale obligatoire de 6 mois inopérante à l’égard de l’accusé et sursoit au prononcé de la peine en imposant une probation de deux ans avec l’obligation d’effectuer 150 heures de travaux communautaires. La Cour supérieure a accueilli l’appel, et a confirmé que la peine minimale obligatoire de 6 mois d’emprisonnement prévue par l’al. 172.1(2)b) du Code criminel est inopérante à l’égard de l’accusé au regard de l’art. 12 de la Charte et n’est pas sauvegardée par l’application de l’article premier ; elle a déclaré invalide et inopérante la peine minimale obligatoire et annulé la peine imposée en première instance. Elle a condamné l’accusé à purger 90 jours d’emprisonnement de façon discontinue, avec une probation de 3 ans qui inclut l’exécution de 150 heures de travaux communautaires. Elle a maintenu les autres conditions, modalités et ordonnances prononcées en première instance. La Cour d’appel a rejeté l’appel de la poursuite, confirmant la peine d’emprisonnement de 90 jours et la déclaration d’invalidité de la peine minimale de 6 mois d’emprisonnement prévue à l’al. 172.1(2)b) du Code criminel. La Cour d’appel a conclu que la Cour supérieure n’a pas prononcé une peine manifestement non indiquée qui n’atteste pas de la gravité objective et subjective du crime commis et qu’elle n’a pas erré en droit en concluant à l’invalidité constitutionnelle de l’al. 172.1(2)b).

M. Chatillon a été déclaré coupable d’un chef d’agression sexuelle sur une enfant. Cette condamnation a été principalement basée sur des aveux qu’il a fait aux professionnels qui l’évaluaient, dans le contexte d’une démarche entièrement volontaire en thérapie pour recevoir des soins en lien avec des problèmes liés à l’abus de substance et de déviance sexuelle. La question qui se posait était de savoir si les aveux étaient protégés par un privilège en droit criminel, question à déterminer selon le cadre d’analyse Wigmore. Le juge du procès a conclu que cette preuve était admissible suivant ce cadre d’analyse, estimant que les professionnels avaient l’obligation de dénoncer les comportements de M. Chatillon à la Direction de la protection de la jeunesse, nonobstant le secret professionnel qui caractérise la relation thérapeutique. Les juges majoritaires de la Cour d’appel du Québec ont plutôt déterminé que les aveux étaient inadmissibles en preuve, suivant leur propre analyse des critères du test de Wigmore. L’appel a été accueilli et M. Chatillon acquitté. Le juge dissident aurait rejeté l’appel au motif que les aveux étaient admissibles, puisque non protégés par un privilège. La dissidence a estimé qu’en consentant à la divulgation de ses aveux, M. Chatillon a explicitement renoncé au caractère confidentiel de ceux-ci.

Mr. Hay and the complainant met online and had been dating for approximately one month before the alleged sexual assault, involving unconsensual anal intercourse occured. At the trial, Mr. Hay was allowed under s 276 of the Criminal Code to admit evidence that during a previous consensual sexual encounter with the complainant, she encouraged him to digitally penetrate her anus. Following a judge-alone trial Mr. Hay was acquitted of the charge. Mr. Hay conceded that the complainant did not consent to the anal intercourse on the day in question, but successfully argued that he had an honest but mistaken belief in the complainant’s communicated consent. The trial judge concluded that the Crown had failed to prove the necessary mens rea. The Crown appealed Mr Hay’s acquittal, and the Court of Appeal of Alberta unanimously allowed the appeal, quashed the acquittal and entered a conviction for sexual assault. It found the trial judge erred in law both by admitting the evidence of the previous sexual encounter and consequently by finding that there was an air of reality to the defence of honest but mistaken belief in communicated consent. Mr. Hay is appealing now to the Supreme Court of Canada as of right.

(ORDONNANCE DE NON PUBLICATION DANS LE DOSSIER) L’intimé a plaidé coupable à une accusation de contacts sexuels commis sur une mineure âgée de moins de 16 ans entre le 1er août 2013 et le 19 juillet 2015. Au cours de cette période, lui et la plaignante ont eu quatre relations sexuelles complètes. Il a plaidé également coupable à une accusation de leurre, en lien avec des échanges avec la plaignante sur les réseaux sociaux entre le 25 février 2015 et le 13 septembre 2015.  La juge de première instance a condamné l’intimé à une peine de 10 mois d’emprisonnement sur le chef de contacts sexuels et à 5 mois d’emprisonnement concurrents sur celui de leurre. Elle a conclutpar ailleurs que la peine minimale obligatoire d’un an d’emprisonnement prévue à l’al. 172.1(2)a) C.cr. pour l’infraction de leurre est disproportionnée, vu les circonstances de sa commission en l’espèce et celles propres à l’intimé, et qu’elle contrevient donc à l’art. 12 de la Charte. Elle l’a déclaré en conséquence inopérante à l’égard de l’intimé.  La majorité de la Cour d’appel du Québec a rejeté l’appel de la peine d’emprisonnement pour l’infraction de leurre et de la déclaration du caractère inopérant de la peine minimale. Le juge Levesque, dissident, aurait accueilli l’appel, rehaussé la peine pour l’infraction de leurre de 5 à 12 mois, et annulé la déclaration d’inopérabilité. L’appelant fait son appel de plein droit. Les questions devant la cour Suprême ont été lié à la proportionnalité de la condamnation et à la constitutionnalité de l’al. 172.1(2)1(a) du Code Criminel.  https://scc-csc.ca/case-dossier/info/sum-som-fra.aspx?cas=39935

Mr. S.S. was charged with sexual assault and sexual interference against his niece E.B who was 6-8 years old at the time of the allegations. The crux of the crown’s case was E.B.’s unsworn video statement. E.B promised to tell the truth when she gave her police statement, yet at the preliminary hearing, she was unable to recall giving a statement to police or any details surrounding the allegations, and thus defence counsel was not able to cross-examine her. The Crown argued that the statement met the necessity and reliability thresholds and should be admitted as an exception to the hearsay rule at trial. The trial judge found that the child’s evidence should be treated differently pursuant to R v W(R), [1992] 2 SCR 122, and that her video evidence detailing the assaults met the hearsay exception. The trial judge admitted the video statemen, and SS was convicted of both charges. After conviction, the Crown successfully sought to declare S.S. a dangerous offender, and the trial judge added ten years of supervision following the completion of S.S.’s ten-year prison sentence. SS’s appeal was heard by the panel of Feldman, Thorburn, and MacPherson JJA at the Court of Appeal for Ontario. The majority decision written by Feldman J. allowed S.S.’s appeal, set aside the conviction and entered an acquittal on the two charges. The majority held that the trial judge erred in finding that the statement met threshold reliability for admittance. The Appeal Court found that the trial judge erred in making a positive finding that the complainant did not have a motive to fabricate these allegations. Ultimately, there were several reliability concerns with the statement that could not meaningfully be tested by cross-examination. MacPherson JA in dissent would have dismissed the appeal. He found that the unsworn statement was inherently trustworthy as E.B. had given explicit details of the acts underlying the charges when she gave her police statement, and a motive to fabricate is only one of the factors that support reliability. The Crown appealed to the Supreme Court of Canada as of right.

This case comes before the Court as of right following a dissent in the Alberta Court of Appeal.  In September of 2017, police investigated the purchase of virtual gift cards using fraudulent credit card information.  There were two IP addresses of interest which police believed were used in the transactions.  Warrants were executed at both residences associated and the appellant was arrested.   The Appellant was charged with 33 offences relating to firearms and the possession and use of third parties' credit cards and personal information documents. At trial, he argued that his section 8 Charter rights, inter alia, had been violated. The trial judge held that it was not objectively reasonable to recognise a subjective expectation of privacy in an IP address used by an individual and found no section 8 breach. The Appellant was convicted of 13 counts.  The majority of the Court of Appeal of Alberta agreed with the trial judge in her interpretation of the law governing the section 8 analysis and dismissed the appeal. Veldhuis J.A., in dissent, would have allowed the appeal and ordered a new trial, holding that the appellant did have a reasonable expectation of privacy in the IP addresses, leading to a section 8 breach.   The Appellant appealed to the Supreme Court of Canada as of right.

In 2012, two young Somali men were murdered in what was perceived by Police and the media to be street level gang violence.  Toronto Police led a joint forces operation, “Project Traveller”, which resulted in 55 arrests, mostly in Toronto’s northwest.  The Appellant would eventually be convicted by a jury on firearms and criminal organization charges. At trial, the Crown led translations of wiretaps through an expert witness. The Appellant objected to the translator being tendered as an expert, claiming that his opinions were unreliable because there were significant frailties in his knowledge, training, and expertise as a Somali translator. The trial judge nevertheless qualified the translator as an expert and admitted his evidence.  This would become significant, not just for the admissibility question of arguably dubious evidence, but also because the wiretaps were crucial to the criminal organization charge. While the wiretaps were arguably laden with details about the nature of the gang being prosecuted, they were based on conversations of people that did not include the appellant nor his co-accused.  This included reference to coded language, hierarchies, and what the Crown would characterize as evidence of “cohesiveness and continuity.”   The defence urged the jury to find that it was a rag tag disorganized group that formed for the purpose of committing the isolated crime of moving guns from Windsor to Toronto.  (A singular offence being specifically statutorily excluded from the definition of criminal organization in the Code.) Since the wires contained utterances by non-accused people that arguably contained boastful or conjectural statements, a complete and legally correct charge to the jury was critical to the accused persons receiving a fair trial.    The Court of Appeal for Ontario unanimously dismissed the Appellant’s appeal relating to the Somali translations.  The Appellant also complained that the instructions to the jury on the definition of “criminal organization” were inadequate.  This ground was likewise dismissed by the majority, but held sway by Paciocco, J.A.  In dissent, he found fault with the trial judge’s failure to develop in his charge “the requirement that the organization have structure and continuity.”  Leave was sought but denied on the translation issue. Thus, the case appears before the Supreme Court of Canada as an appeal as of right based on the dissent by Paciocco, J.A. on the question of law relating to the definition of a criminal organization.

La Cour d’appel du Québec, rejette l’appel de l’accusé basé sur le caractère déraisonnable du verdict. Siégeant en appel, la Cour d’appel du Québec confirme le verdict de culpabilité. Selon le juge Moore, il était raisonnable pour la juge du procès de conclure que les circonstances, y compris le fait que la preuve en défense ne soulevait aucun doute raisonnable, excluaient toute conclusion autre que la culpabilité. La majorité explique que la juge de première instance a retenu de la preuve que ces éléments étaient établis hors de tout doute raisonnable et elle pouvait arriver à une telle conclusion. Le juge Moore, souligne dans ses motifs que le rôle d’une cour d’appel en ces matières « n’est pas de se substituer à la juge des faits, mais de vérifier si la détermination de celle-ci est elle-même raisonnable, même si un autre juge aurait pu tirer une conclusion différente » Par contre, le juge Schrager, en dissidence, estime que le verdict est déraisonnable. Selon lui, cette conclusion repose sur l’existence d’une inférence raisonnable incompatible avec la culpabilité et sur une erreur de droit relativement à un renversement du fardeau de la preuve. Pour le juge dissident, l’inférence alternative à la culpabilité est la suivante : l’arme à feu fut placée dans le sac de papier de l’appelant au moment où les gyrophares du véhicule de police se sont allumés, à son insu, par Kevinson Daniel, qui prenait également place à l’arrière du véhicule. Alors l’appelant fait l’appel devant la Cour suprême du Canada. La question en litige est de déterminer si les juges majoritaires de la Cour d’appel du Québec ont erré dans leur application des principes en matière de verdict déraisonnable, de possession et de preuve circonstancielle. L’appelant soumet que la preuve de nature circonstancielle dans le présent dossier n’était pas de nature à conclure hors de tout doute raisonnable à la culpabilité de l’appelant d’avoir eu en sa possession une arme à feu. Il y avait la possibilité que l’arme à feu a été placée dans le sac à l’insu de l’appelant, une inférence raisonnable de la preuve. L’appelant demande donc à la Cour supreme du Canada d’infirmer la décision de la juge de première instance, confirmée en appel, et d’imposer un verdict d’acquittement à son égard.

On January 7, 2020, David Edward Fury entered the home of Paul and Chris Worrall on two occasions, culminating in physical confrontations between the parties. Later that night, Paul Worrall gave a statement to police. However, prior to trial, Mr. Worrall died of unrelated causes. At trial, the prosecution tendered Mr. Worrall’s statement for the truth of its contents. The trial judge admitted the statement, ruling that the increased necessity reduced the need for reliability. Mr. Fury was convicted of breaking and entering into a dwelling, assault with a weapon, assault causing bodily harm, possession of a knife for a purpose dangerous to the public peace, and breach of an undertaking. On appeal to the Court of Appeal of Newfoundland and Labrador, the majority held that the trial judge erred in finding that where necessity was high, less reliability was required, as the proposition was not supported in law. The majority ruled that increased necessity did not reduce the threshold reliability required to render an out-of-court statement admissible. As such, the statement ought not to have been admitted for the truth of its contents. In dissent, Knickle J.A. found that the trial judge did not improperly relax the criteria set out in the principled approach to the hearsay rule. Knickle J.A. found the trial judge applied the skeptical and cautious approach required in assessing necessity and reliability, including considering the criteria in tandem, and with flexibility. Her Majesty the Queen appealed, as of right, to the Supreme Court of Canada.

In 2017, the Appellant, Jennifer Basque, was charged with operating a motor vehicle while having a blood alcohol level greater than 80 milligrams per 100 millilitres of blood. One of the conditions of her pre-trial release prohibited her from operating a motor vehicle. She was subject to the driving prohibition term of her release order for 21 months before being sentenced. The sentencing judge imposed a $1,000 fine and, under the now repealed s. 259(1)(a) of the Criminal Code, a mandatory minimum one year driving prohibition. The sentencing judge then applied presentence credit for the 21 months Ms. Basque had been subject to the driving prohibition. As a result, Ms. Basque did not face a further driving prohibition. The decision to take the presentence driving prohibition into account was affirmed by the summary conviction appeal court judge. The majority of the New Brunswick Court of Appeal allowed the subsequent appeal by the Crown, imposed a one-year driving prohibition, and stayed the execution of the prohibition order. The dissenting judge was of the view that the appeal should be dismissed. Ms. Basque was granted leave to appeal to the Supreme Court of Canada.

Mr. Downes was convicted of two counts of voyeurism contrary to s. 162(1)(a) of the Criminal Code after being found to have surreptitiously taken photographs of two adolescent male hockey players, whom he coached, dressed only in their underwear, in arena dressing rooms. In convicting Mr. Downes, the trial judge found that an arena dressing room was a “place in which a person can reasonably be expected to be nude”, pursuant to the definition of the offence as enumerated in s. 162(1)(a).  Mr. Downes appealed his conviction to the Court of Appeal for British Columbia. There, a majority of the Court upheld the appeal and granted a new trial on the basis that the trial judge had found that nudity was expected “at some time” in the dressing rooms in question, but did not address whether nudity was expected at the time the photos were taken. They found that such contemporaneity was necessary to ground the offence, otherwise conduct that was not engaged in for the purpose of, nor resulted in, the observing or recording of nudity or sexual activity would be criminalized as a sexual offence under the section.  The minority opinion of the Court of Appeal for British Columbia would have dismissed the appeal, noting that the Criminal Code does not speak to a requirement for the expectation of nudity to be contemporaneous with the observations or recordings being made by the accused.  The Crown appealed the Supreme Court of Canada as of right.

The respondents, Matthew James Johnston and Cody Rae Haevischer, were convicted at of six counts of first-degree murder and one count of conspiracy to commit murder at trial. They applied for a stay of proceedings under section 24(1) of the Charter alleging that their pretrial custody conditions as well as police misconduct during the initial investigation constituted an abuse of process. The Crown brought an application for a summary dismissal of the application without an evidentiary hearing. Following a Vukelich hearing, the trial judge granted the Crown’s application and declined to hold a full evidentiary hearing, finding that the circumstances of the offence were too serious to warrant a stay of proceedings. In 2021, the Court of Appeal for British Columbia dismissed seven grounds of appeal but allowed one, finding that the trial judge erred in summarily dismissing the applications for a stay of proceedings and that an evidentiary hearing was necessary. The Court of Appeal for British Columbia quashed the convictions, affirmed the verdicts of guilt, and ordered an evidentiary hearing on allegations of abuse of process. The Supreme Court of Canada granted leave to appeal. At trial, Mr. McColman brought an application under s. 9 of the Charter, alleging that the traffic stop was unlawful. The arresting officers conceded that there was nothing unusual about Mr. McColman’s driving and relied on the power to conduct random sobriety checks under s. 48(1) of the Highway Traffic Act. The trial judge agreed, Mr. McColman was convicted of impaired driving and appealed.  The Summary Conviction Appeal judge held that the trial judge erred in dismissing the Charter application - there was no statutory authority under the Highway Traffic Act for police to conduct a random sobriety check on private property, nor did the power exist at common law. The Summary Conviction Appeal excluded the breath samples under s. 24(2) and entered an acquittal.  The Crown appealed to the Court of Appeal for Ontario, where a majority of the Court upheld the decision of the Summary Conviction Appeal Judge, finding that neither the Highway Traffic Act nor the common law authorized the police conduct in this case. The evidence was properly excluded under s. 24(2) – the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment overrode the public interest in the admission of the evidence.  The Crown applied for and was granted leave to the Supreme Court of Canada.  The issues in this case include: whether there exists any statutory or common law authority to permit the police to conduct a random sobriety check after a person has exited the highway; the correct approach to the statutory interpretation of public welfare legislation; the role of the common law to fill gaps in the legislation under the ancillary powers doctrine and finally the approach to good faith Charter breaches when considering the exclusion of evidence under s. 24(2)

At around 12:30 a.m. on March 26, 2016, police on general patrol in the area of the Thessalon Frist Nation in Northern Ontario saw a utility terrain vehicle (or UTV) parked outside a restaurant and gas station.  When it appeared the UTV was about to exit the parking lot, police decided to conduct a sobriety check of the driver and turned around to follow the UTV. Approximately 200 metres down the road – less than one minute of unremarkable driving – the UTV turned into the driveway of a home – the home of the driver’s parents. The police officers followed and activated their lights.  On approaching the UTV, police observed signs of impairment and arrested Mr. McColman for impaired driving.  At the station, he provided two breath samples, both of which were over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.  At trial, Mr. McColman brought an application under s. 9 of the Charter, alleging that the traffic stop was unlawful. The arresting officers conceded that there was nothing unusual about Mr. McColman’s driving and relied on the power to conduct random sobriety checks under s. 48(1) of the Highway Traffic Act. The trial judge agreed, Mr. McColman was convicted of impaired driving and appealed.  The Summary Conviction Appeal judge held that the trial judge erred in dismissing the Charter application - there was no statutory authority under the Highway Traffic Act for police to conduct a random sobriety check on private property, nor did the power exist at common law. The Summary Conviction Appeal excluded the breath samples under s. 24(2) and entered an acquittal.  The Crown appealed to the Court of Appeal for Ontario, where a majority of the Court upheld the decision of the Summary Conviction Appeal Judge, finding that neither the Highway Traffic Act nor the common law authorized the police conduct in this case. The evidence was properly excluded under s. 24(2) – the intrusive nature of a police power to arbitrarily stop and question people on their own property, in the absence of reasonable suspicion of impairment overrode the public interest in the admission of the evidence.  The Crown applied for and was granted leave to the Supreme Court of Canada.  The issues in this case include: whether there exists any statutory or common law authority to permit the police to conduct a random sobriety check after a person has exited the highway; the correct approach to the statutory interpretation of public welfare legislation; the role of the common law to fill gaps in the legislation under the ancillary powers doctrine and finally the approach to good faith Charter breaches when considering the exclusion of evidence under s. 24(2)

L’intimé M. Breault a refusé à plusieurs reprises de fournir un échantillon d’haleine à un agent de la paix qui lui ordonne de le faire, alors qu’il n’est pas en possession d’un appareil de détection approuvé. En première instance, le juge Simard de la Cour municipale de la ville de Québec déclare l’intimé coupable. Le juge détermine que le délai de quatre minutes entre l’ordre et le refus de l’intimé est conforme à la norme d’immédiateté de l’alinéa 254(2)b) Siégeant en appel, le juge Pronovost de la Cour supérieure confirme le verdict de culpabilité. Puis, la Cour d’appel du Québec accepte d’étudier le dossier par l’entremise d’une formation de cinq juges. Elle acquitte l’intimé. Selon son interprétation, la norme d’immédiateté de l’alinéa 254(2)b) C.cr. signifie que le policier doit avoir accès immédiatement à l’ADA lorsqu’il formule l’ordre. Elle indique notamment qu’ « "immédiatement" signifie "immédiatement" lorsqu’il est question d’échantillons d’haleine » . Pour que l’ordre soit valide, le policier doit donc avoir « immédiatement accès »à l’ADA au moment de formuler la demande au conducteur soupçonné de conduire en état d’ébriété. Sa majesté fait l’appel devant la cour suprême du Canada.

There is a section 486.4 publication ban involving this matter. Mr. Kerry Alexander Nahanee pleaded guilty to two counts of sexual assault. The appellant and Crown made sentencing submissions, which were not joint submissions. The Crown sought a 4-6 year global sentence. The appellant sought a 3 to 3.5 year global sentence. The sentencing judge did not agree with the sentencing submissions, and imposed a sentence of eight years’ imprisonment. The sentencing judge did not alert counsel that she was intending to exceed the Crown’s proposed sentence. Mr. Nahanee appealed his sentence to the Court of Appeal for British Columbia on the basis that the judge erred in (1) failing to alert counsel that she planned to impose a sentence in excess of that sought by Crown counsel, (2) imposing a demonstrably unfit sentence, (3) incorrectly applying statutory and common law aggravating factors, and (4) failing to properly consider his Aboriginal heritage. The Court of Appeal dismissed the appeal. The Court of Appeal found that because the guilty plea was not accompanied by a joint submission on sentencing, the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than that sought by the Crown. The sentence was in line with those imposed on offenders who sexually assaulted children while in positions of trust. The judge was permitted to consider the appellant’s lack of insight or ongoing risk to the public, the victims’ ages, and the age differential between the victims and appellant when determining the sentence, and she properly considered whether the appellant’s Indigenous heritage attenuated his culpability. Mr. Nahanee was granted leave to appeal to the Supreme Court of Canada.