Supreme Court of Canada Hearings

Her Majesty the Queen v. Gerard Comeau (Day 1/2) (37398)

In October 2012, the respondent Mr. Comeau drove from his hometown Tracadie, in New Brunswick, to Pointe-à-la-Croix and the Listuguj First Nation Indian Reserve, in the province of Quebec. He went there to purchase alcoholic beverages. Mr. Comeau was, at the time, under police surveillance as part of an investigation into cross-border liquor transport. His vehicle was intercepted upon his return, in Campbellton, New Brunswick. Mr. Comeau was charged by way of Notice of Prosecution for “hav[ing] or keep[ing] liquor not purchased from the Corporation”, an offence under section 134(b) of the New Brunswick Liquor Control Act, RSNB 1973, c. L-10. The police also seized the alcoholic beverages he had purchased that day, a total of 354 bottles or cans of beer and three bottles of liquor. In his defense, Mr. Comeau claimed that section 134(b) of the Liquor Control Act was an unenforceable provincial law, of no force and effect, as it contravened section 121 of the Constitution Act, 1867.The trial judge declared s. 134(b) of the Liquor Control Act unconstitutional and of no force and effect. He found that s. 134(b) constitutes a trade barrier which violates section 121 of the Constitution Act, 1867.The Attorney General of New-Brunswick brought an application for leave to appeal to the Court of Appeal of New-Brunswick pursuant to s. 116(3) of the Provincial Offences Procedure Act, SNB 1987, c. P-22.1. This provision allows an appeal directly to the Court of Appeal on a ground of appeal that involves a question of law alone. The application for leave to appeal was dismissed (R. v Comeau, 2016 CanLII 73665 (NB CA)). Argued Date 2017-12-06 Keywords Constitutional law - Constitutional law - Interpretation - Conflict of laws - Interprovincial trade - Notice of Prosecution for having brought alcoholic beverages into New Brunswick from Quebec - Whether section 121 of the Constitution Act, 1867 is a free trade provision? - Whether s. 121 of the Constitution Act renders unconstitutional s. 134 of the Liquor Control Act, RSNB 1973, c. L-10, which along with s. 3 of the Importation of Intoxicating Liquor Act, R.S.C., 1985, c. I-3, establishes a federal-provincial regulatory scheme in respect of intoxicating liquor? - Constitution Act, 1867, s. 121 - Liquor Control Act, RSNB 1973, c. L-10, s. 134 - Importation of Intoxicating Liquor Act, R.S.C., 1985, c. I-3, s. 3. Notes (New Brunswick) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Nova Chemicals Corporation v. Dow Chemical Company, et al. (39439)

(SEALING ORDER)In 2014, the Federal Court, in the liability phase of the trial, held that the respondents’ (collectively “Dow”) 705 Patent for fabricated products made from ethylene polymer blends was found to be valid and infringed by a product manufactured by Nova Chemicals Corporation (“Nova”). The 705 Patent issued in 2006 and expired on April 19, 2014. Dow was held to be entitled to damages under the Patent Act, R.S.C. 1985, c. P-4, and had to elect either an accounting of Nova’s profits or damages sustained by reason of Nova’s infringement under s. 55(1) of the Act. The quantum of that award was to be assessed by reference. Dow elected an accounting of profits. The reference judge was required to determine the manner in which damages payable to Dow pursuant to ss. 55(1) and 55(2) of the Act should be calculated. The principles articulated by the reference judge allowed for the calculation of the accounting of profits to be disgorged by Nova and made payable to Dow. That decision was upheld on appeal. Argued Date 2022-04-20 Keywords Intellectual property - Patents, Medicines, Damages - Intellectual property — Patents — Medicines — Damages — Respondent seeking remedy of accounting of profits following determination applicant had infringed respondent’s patent — What is the proper conceptual approach to determining how to calculate a disgorgement of profits in the patent context? — Are “springboard profits” on products sold after patent expiry available at law?. Notes (Federal Court) (Civil) (By Leave) (Certain information not available to the public) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Corporal C.R. McGregor v. Her Majesty the Queen (39543)

(PUBLICATION BAN IN CASE)Cpl. McGregor, a Canadian Armed Forces member, was posted to and resided in the United States. The Canadian Forces National Investigation Service suspected he committed the offences of interference and voyeurism by surreptitiously placing audio recording devices in the residence of another Canadian Armed Forces member also posted to the United States. An American police force obtained a search warrant in Virginia permitting entry into and a search of Cpl. McGregor’s residence in Virginia. Virginia law permits searching electronic devices under the authority of a warrant to search a residence. The American police entered Cpl. McGregor’s residence and invited the Canadian Forces National Investigation Service to conduct the search. Officers seized electronic devices and searched some devices during the search of the residence. They discovered evidence of the suspected offences and other offences. Electronic devices were seized, removed to Canada and searched further pursuant to warrants from the Court Martial. The Standing Court Martial dismissed a motion to exclude the evidence for breach of s. 8 of the Canadian Charter of Rights and Freedoms. Cpl. McGregor was convicted for sexual assault, two counts of voyeurism, possession of a device for unlawful interception, and disgraceful conduct. The Court Martial Appeal Court dismissed an appeal. Argued Date 2022-05-19 Keywords Canadian charter (Criminal) - Extraterritoriality, Search and seizure (s. 8) - Canadian Charter of Rights and Freedoms — Extraterritoriality — Search and seizure — Canadian Forces National Investigation Service seizing and searching contents of electronic devices during search of residence in United States of America of Canadian Armed Forces Regular Member posted to United States of America — Admissibility of evidence seized during search at Standing Court Martial in Canada — Whether Canadian Charter of Rights and Freedoms applied to search — If yes, whether search breached right to be free from unreasonable search and seizure — If search breached s. 8 of Charter, whether evidence should be excluded pursuant to s. 24(2) of Charter — Whether exception of customary or international law necessitates unilateral Canadian authority in context of Canadian Armed Forces member required to be on foreign soil — Whether cooperation between states precludes exception of consent to principle of sovereignty?. Notes (Court Martial Appeal Court of Canada) (Criminal) (By Leave) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

F. v. N. (39875)

(PUBLICATION BAN IN CASE)The appellant and her former husband, the respondent, were married in Pakistan in 2012. They have two children under the age of five who are both Canadian citizens, as is the mother. The father is a Pakistani citizen. The parties resided in Dubai, United Arab Emirates (“UAE”) during the entire course of their marriage under a series of temporary residence visas directly linked to the father’s employment there. The mother and children were issued visas as dependents of the father, who had discretion over the renewal process. The mother advised the father shortly after arriving in Canada with the children in June 2020 to visit with her family that she would not be returning to Dubai with the children.The father initiated proceedings for divorce in Dubai, and brought an application under s. 40 of the CLRA for an order requiring the children to be returned to Dubai to have the matters of custody and access decided there, as the children’s habitual residence. The UAE is not a signatory country to the Hague Convention. The father obtained a divorce from the court in Dubai and was also granted custody and guardianship of the children. The mother did not participate in the proceedings in Dubai. The mother asked the Ontario court to assume jurisdiction in this case under ss. 22 or 23 of the CLRA to decide the parenting issues. Argued Date 2022-04-12 Keywords Family law - Custody, Parental authority, Courts, Jurisdiction - Family law — Custody — Parental authority — Courts — Jurisdiction — Mother leaving non Hague Convention country with children without father’s consent and retaining them in Ontario — Did the majority of the Court of Appeal err by affirming the trial judge’s decision to decline jurisdiction pursuant to s. 23 of the CLRA? — What factors and to what extent should the “best interests of the child” principle inform a s. 23 analysis in determining the risk of serious harm? — Did the majority of the Court of Appeal err by affirming the trial judge’s decision to return the children to the UAE pursuant to s. 40 of the CLRA? — How and to what extent should the “best interests of the child” principle inform the exercise of judicial discretion and available remedies under s. 40 of the CLRA? Notes (Ontario) (Civil) (By Leave) (Publication ban in case) (Publication ban on party) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Transportation Safety Board of Canada v. Kathleen Carroll-Byrne, et al. (39661)

An Air Canada flight from Toronto to Halifax crashed when it landed short of the runway during a snowstorm. Some of the passengers commenced a class action asserting negligence on the part of various defendants, including Air Canada, the pilot and co pilot. The appellant (Board) investigated the crash, taking into consideration the on-board cockpit voice recorder (CVR). The Board’s report on its findings was produced to the parties. The respondent Airbus S.A.S. moved for an Order requiring the Board to produce the audio data from the CVR and any transcripts. Other respondents also sought production. The CVR and transcripts are in possession of the Board, who claims a statutory privilege over the materials under the Act. It intervened to argue that the court should not exercise its discretion to order production in the face of its privilege. A judge of the Supreme Court of Nova Scotia denied a motion by the Board to make further ex parte representations after his in camera review of the CVR and ordered production of the CVR and transcripts, subject to restrictions. The Nova Scotia Court of Appeal granted leave to appeal and dismissed the appeal. Argued Date 2022-03-17 Keywords Legislation - Interpretation, Courts - Legislation — Interpretation — Courts — Discretion to order production — Open court principle — Important public interest — Privacy — Safety — Does s. 28(6)(b) of the Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3 (the Act), entitle the Transportation Safety Board of Canada to make in camera submissions (not in the presence of other parties) to a court prior to any decision to release an on board recording (in this case, a cockpit voice recorder) — What is the correct test to be applied by a court when deciding whether to order production of the contents of an on board recording (in this case, a cockpit voice recorder) pursuant to s. 28(6)(c) of the Act. Notes (Nova Scotia) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Kerry Alexander Nahanee v. Her Majesty the Queen (39599)

(PUBLICATION BAN IN CASE)The appellant plead 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. There was no guilty plea in exchange for joint submissions on 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. The Court of Appeal dismissed the sentence appeal. Argued Date 2022-03-16 Keywords Criminal law - Sentencing - Criminal law — Sentencing — Guilty plea — Sentencing judge exceeding sentence proposed by Crown and failing to warn parties — Are the considerations set out in Anthony Cook applicable to non joint submissions where the Crown and the accused negotiate sentencing positions that reflect partial agreement or an agreed upon range — Whether the failure of a trial judge to alert counsel that they intend to exceed the sentencing ceiling proposed by Crown an error in principle resulting in fundamental unfairness and warranting appellate intervention. Notes (British Columbia) (Criminal) (By Leave) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Jesse Dallas Hills v. Her Majesty the Queen (39338)

(PUBLICATION BAN)The appellant, Jesse Dallas Hills, pled guilty to four charges from an incident in May 2014 where he swung a baseball bat and fired a shot with his rifle at an occupied vehicle, smashed the window of a parked vehicle and shot a few rounds into an occupied family residence. One of the charges was the intentional discharging of a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place under s. 244.2(1)(a) of the Criminal Code, which carries a minimum four year imprisonment sentence. Mr. Hills alleged that the minimum sentence under s. 244.2(3)(b) of the Criminal Code violated his constitutional right to not be subjected to any cruel and unusual treatment or punishment by virtue of s. 12 of the Charter.At trial, Mr. Hills presented a scenario that he claimed could reasonably occur and for which the four year mandatory minimum sentence would constitute cruel and unusual punishment. Taking into account this hypothetical case proposed by Mr. Hills where a young person intentionally fires an air powered pistol or rifle at a residence, the trial judge found that despite the minimum four year sentence not resulting in a grossly disproportionate sentence for Mr. Hills, it is reasonably foreseeable that it would result in a grossly disproportionate sentence for other potential offenders. The trial judge therefore found that the mandatory minimum sentence contravened s. 12 of the Charter and could not be saved by s. 1. As a result, he declared s. 244.2(3)(b) of the Criminal Code to be of no force and effect. Mr. Hills was sentenced to imprisonment for a term of three and a half years.The Alberta Court of Appeal overturned the trial judge’s finding of unconstitutionality and set aside the declaration of invalidity in a judgment containing three separate concurring reasons. Justices O’Ferrall and Wakeling were critical of the expansive usage of hypotheticals in this Court’s s. 12 Charter jurisprudence and invited this Court to abandon it. The appeal against the sentence for discharging a firearm was allowed and the sentence was increased to four years imprisonment. Argued Date 2022-03-22 Keywords Canadian charter (Criminal) - Criminal law, Sentencing - Charter of Rights — Criminal law — Sentencing — Mandatory minimum sentence — Whether the Alberta Court of Appeal erred in finding that s. 244.2(3)(b) of the Criminal Code does not constitute cruel and unusual punishment that violates s. 12 of the Charter — Whether the Alberta Court of Appeal erred in failing to consider the appellant’s Métis status in re sentencing him — Criminal Code, R.S.C. 1985, c. C 46, s. 244.2(3)(b). Notes (Alberta) (Criminal) (By Leave) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

David Beckman, in his capacity as Director, Agriculture Branch, Department of Energy, Mines and Resources, et al. v. Little Salmon/Carmacks First Nati...

Aboriginal law - Self government - Land claims - Fiduciary duty - Treaty rights - Duty to consult - Whether there is a duty to consult and, where possible, accommodate First Nations’ concerns and interests in the context of a modern comprehensive land claims agreement - If there is a duty to consult, what is the scope of that duty and was it met in this case?The Little Salmon/Carmacks First Nation entered into a land claims agreement (“Final Agreement”) with Canada and Yukon in 1997 after a long, intensively negotiated process.On November 2001, Larry Paulsen submitted an application for an agricultural land grant of approximately 65 hectares of Yukon Crown land. The land is within the boundaries of the Respondent Mr. Sam’s trapping concession issued to him under the Wildlife Act, R.S.Y. 2002, c. 229, which grants him the exclusive right to trap commercially in the area. Under s. 6.2 of the Final Agreement, all Little Salmon/Carmacks members have the right of access to Crown land for subsistence harvesting in their traditional territory except where the Crown land is subject to an agreement for sale such as would be the case if the Paulsen application was approved and the land grant made. The 65 hectares represented by the Paulsen application is approximately one third of one percent of the trapline area of Mr. Sam which totals 21 435 hectares.The Paulsen application was reviewed by the Agriculture Branch of the Yukon Department of Energy, Mines and Resources and by the Agriculture Land Application Review Committee between 2001 and 2004. Little Salmon/Carmacks was not notified of the initial review and had no opportunity to raise concerns. It was then reviewed by the Land Application Review Committee (LARC). Members of LARC include Yukon government and federal and municipal government agencies as well as Yukon First Nations including Little Salmon/Carmacks. LARC gave notice of the Paulsen application by advertising in local newspapers, mailing application material to all residents living within one kilometre of the parcel and mailing a letter and package of information to Little Salmon/Carmacks, the Selkirk First Nation and the Carmacks Renewable Resources Council. The letter and package invited comments on the application within 30 days and it included notice of a meeting date. Little Salmon/Carmacks expressed its concern with respect to the Paulsen application by letter but the Director of Little Salmon/Carmacks Lands Department who normally attends LARC meetings was unable to do so when the Paulsen application was being considered. Little Salmon/Carmacks did not ask for an adjournment. It was later provided with minutes of the meeting which reflect a discussion of the First Nation’s concerns as raised in the letter. At the end of the meeting, LARC recommended that the Paulsen application be approved. Little Salmon/Carmacks continued to express opposition. It was advised that the LARC process was used for consultation but that there was no requirement under the Final Agreement to consult with Little Salmon/Carmacks in respect of agricultural land applications and consultation took place as a matter of courtesy. Argued Date 2009-11-12 Keywords Native Law. Notes (Yukon Territory) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Corey Daniel Ramelson v. Her Majesty the Queen (39664)

At trial the appellant, Corey Daniel Ramelson, was found guilty of three indictable offences under ss. 172.1, 172.2 and 286.1 of the Criminal Code, R.S.C. 1985, c. C 46. The appellant’s charges arose out of Project Raphael designed by the York Regional Police in Ontario — an undercover investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”. As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage.com. When individuals responded to the ads an undercover officer posing as an escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction; they were then arrested and charged on their arrival.The trial judge originally dismissed the appellant’s application for a stay of proceedings based on entrapment. However, after this Court released its decision in R. v. Ahmad, 2020 SCC 11, the parties were invited to address the impact of that decision on the entrapment analysis. In a second decision the trial judge found that the police actions constituted entrapment and entered a stay of proceedings on the charges.The Court of Appeal unanimously allowed the Crown’s appeal from the stay of proceedings, set aside the stay and remitted the matter to the trial judge for sentencing. The court concluded that the police investigation was a bona fide police inquiry and that the police did not require reasonable suspicion that the person responding to the ad was seeking someone underage before extending offers to commit the offence of communicating to obtain for consideration the sexual services of an underage person. In conducting the investigation, the police necessarily provided persons with the opportunity to commit the rationally connected offence of communicating with a person they believed to be underage to facilitate sexual contact with them. The court concluded that the appellant was therefore not entrapped. Argued Date 2022-05-17 Keywords Criminal law - Abuse of process - Criminal law — Abuse of process — Entrapment — Luring — Whether, in light of R. v. Ahmad, 2020 SCC 11, Project Raphael was a bona fide police inquiry — What is the proper analysis to be applied in determining whether a virtual space is sufficiently precisely and narrowly defined to meet the standard of a bona fide inquiry?. Notes (Ontario) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Syed Adeel Safdar v. Her Majesty the Queen (39629)

The appellant, Syed Adeel Safdar, and two co accused who have since discontinued their appeals, were tried for a number of offences involving the abuse of the appellant’s wife. At the end of the evidence and argument on the merits of the allegations, they brought an application under s. 11(b) of the Charter for a stay of proceedings based on unreasonable delay. While the trial judge was preparing his decision on the trial proper, he heard the s. 11(b) application, reserved his decision and then granted the stay. In the trial judge’s reasons on the s. 11(b) application, he also advised that he had completed his reserved decision on the trial proper, which he did not release, but placed under seal pending the outcome of any appeal of the stay order.The Crown appealed the stay order, arguing that following the Supreme Court’s decision in R. v. K.G.K., 2020 SCC 7, the trial judge erred in including the period from the end of the evidence and argument until the release of the stay decision in his calculation of the overall delay. The Court of Appeal unanimously allowed the Crown’s appeal, set aside the stay order and referred the matter back to the trial judge to release his decision on the trial proper. Argued Date 2022-05-18 Keywords Constitutional law - Canadian charter (Criminal), Right to be tried within a reasonable time (s. 11(b)) - Constitutional law — Charter of Rights — Right to be tried within a reasonable time — Whether the Court of Appeal erred in holding that the period of time required for applications brought pursuant to the Canadian Charter of Rights and Freedoms should be considered as part of verdict deliberation time and thus deducted from the calculation of net delay in an application brought under s. 11(b) of the Charter — Whether the Court of Appeal erred in failing to correct the trial judge’s characterization of delay in setting trial dates attributable to systemic limitations on court resources as defence waiver — Whether the Court of Appeal erred in failing to correct the trial judge’s characterization of delay attributed to the trial taking substantially longer than the trial estimate as a discrete exceptional circumstance — Whether the Court of Appeal erred in failing to correct the trial judge’s over allocation of delay for the discrete exceptional circumstance of illness of Crown counsel — Whether the Court of Appeal erred in concluding that below the ceiling delay of 29.25 months was not markedly longer than the trial should have taken. Notes (Ontario) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).