Supreme Court of Canada Hearings

Jason Donald Hay v. His Majesty the King (40316)

(PUBLICATION BAN IN CASE)Following a judge-alone trial, the appellant, Mr. Hay, was acquitted of one count of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant conceded that the complainant did not consent to anal intercourse on September 13, 2019. The only issue on appeal was whether Mr. Hay had an honest but mistaken belief in the complainant’s communicated consent. Following a s. 276 voir dire, the trial judge admitted evidence of a previous sexual encounter on August 24, 2019.The trial judge found there was an air of reality to the appellant’s defence of honest but mistaken belief in communicated consent. She concluded that the Crown had failed to prove the necessary mens rea and acquitted him. The Court of Appeal 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 previous sexual conduct and by finding there was an air of reality to the defence of honest but mistaken belief in communicated consent. Argued Date 2023-05-19 Keywords Criminal law - Offences, Evidence, Defences - Criminal law — Offences — Sexual assault — Consent — Evidence — Defence — Whether the Court of Appeal of Alberta erred by conflating the actus reus for sexual assault (consent) with the mens rea (belief in communicated consent or a mistaken belief in communicated consent) — Whether the Court of Appeal of Alberta erred by reversing the trial judge’s decision admitting evidence of previous sexual acts on the s. 276 application — Whether the Court of Appeal of Alberta erred by reversing the criminal standard of proof to place an onus on the appellant to establish his innocence — Whether the Court of Appeal of Alberta erred in substituting its own view of the facts contrary to the trial judge’s findings in relation to the testimony of the appellant — Whether the Court of Appeal of Alberta erred by requiring proof of explicit consent as a prerequisite for the defence of mistaken belief in communicated consent to apply. Notes (Alberta) (Criminal) (As of Right) (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).

His Majesty the King v. Christopher James Kruk (40095)

(PUBLICATION BAN IN CASE)The complainant was intoxicated, and eventually passed out or fell asleep in the respondent’s bedroom. She testified that she woke up to find the respondent on top of her with his penis inside her vagina. The respondent denied having sex with the complainant. The respondent was convicted of sexual assault. The Court of Appeal allowed the respondent’s appeal, set aside the conviction, and ordered a new trial. Argued Date 2023-05-18 Keywords Criminal law - Trial - Criminal law — Trial — Judgments — Sexual assault — Whether the Court of Appeal erred in concluding that the trial judge relied on speculative reasoning in accepting the complainant’s evidence — Whether there was no merit to the respondent’s alternate argument regarding alleged misapprehensions of evidence, and the appropriate remedy was to restore the conviction. 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).

Jason Donald Hay v. His Majesty the King (40316)

(PUBLICATION BAN IN CASE)Following a judge-alone trial, the appellant, Mr. Hay, was acquitted of one count of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant conceded that the complainant did not consent to anal intercourse on September 13, 2019. The only issue on appeal was whether Mr. Hay had an honest but mistaken belief in the complainant’s communicated consent. Following a s. 276 voir dire, the trial judge admitted evidence of a previous sexual encounter on August 24, 2019.The trial judge found there was an air of reality to the appellant’s defence of honest but mistaken belief in communicated consent. She concluded that the Crown had failed to prove the necessary mens rea and acquitted him. The Court of Appeal 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 previous sexual conduct and by finding there was an air of reality to the defence of honest but mistaken belief in communicated consent. Argued Date 2023-05-19 Keywords Criminal law - Offences, Evidence, Defences - Criminal law — Offences — Sexual assault — Consent — Evidence — Defence — Whether the Court of Appeal of Alberta erred by conflating the actus reus for sexual assault (consent) with the mens rea (belief in communicated consent or a mistaken belief in communicated consent) — Whether the Court of Appeal of Alberta erred by reversing the trial judge’s decision admitting evidence of previous sexual acts on the s. 276 application — Whether the Court of Appeal of Alberta erred by reversing the criminal standard of proof to place an onus on the appellant to establish his innocence — Whether the Court of Appeal of Alberta erred in substituting its own view of the facts contrary to the trial judge’s findings in relation to the testimony of the appellant — Whether the Court of Appeal of Alberta erred by requiring proof of explicit consent as a prerequisite for the defence of mistaken belief in communicated consent to apply. Notes (Alberta) (Criminal) (As of Right) (Publication ban in case) Language Floor Audio 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).

His Majesty the King v. Edwin Tsang (40447)

(PUBLICATION BAN IN CASE)The respondent and the complainant had mutual friends, but met for the first time at an event. When that event ended, the respondent drove the complainant and her friend, to Commodore Ballroom. The respondent and the complainant continued drinking and dancing and later left the Commodore in the respondent’s car. On the way to the complainant’s home, they got into the back seat to “make out”. The trial judge found that what ensued after the initial consensual foreplay was a sexual assault. The trial judge convicted the respondent of sexual assault. The Court of Appeal allowed the conviction appeal, set aside the conviction and ordered a new trial. Argued Date 2023-05-18 Keywords Criminal law - Trial - Criminal law — Trial — Judgments — Sexual assault — Whether the Court of Appeal erred by not applying a deferential standard of review, and intervening on the basis that the trial judge erred in law by basing her credibility conclusions on unfounded generalizations — Whether the Court of Appeal erred by not conducting a functional and contextual review of the trial judge’s reasons — Whether the Court of Appeal erred by improperly re-weighing the evidence in concluding that the alleged unfounded generalizations were material — What is the appropriate remedy for the Court of Appeal’s errors? Notes (British Columbia) (Criminal) (By Leave) (Publication ban in case) Language Floor Audio 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).

His Majesty the King v. Christopher James Kruk (40095)

(PUBLICATION BAN IN CASE)The complainant was intoxicated, and eventually passed out or fell asleep in the respondent’s bedroom. She testified that she woke up to find the respondent on top of her with his penis inside her vagina. The respondent denied having sex with the complainant. The respondent was convicted of sexual assault. The Court of Appeal allowed the respondent’s appeal, set aside the conviction, and ordered a new trial. Argued Date 2023-05-18 Keywords Criminal law - Trial - Criminal law — Trial — Judgments — Sexual assault — Whether the Court of Appeal erred in concluding that the trial judge relied on speculative reasoning in accepting the complainant’s evidence — Whether there was no merit to the respondent’s alternate argument regarding alleged misapprehensions of evidence, and the appropriate remedy was to restore the conviction. Notes (British Columbia) (Criminal) (By Leave) (Publication ban in case) Language Floor Audio 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).

Canadian Broadcasting Corporation, et al. v. Aydin Coban, et al. (40223)

(PUBLICATION BAN IN CASE)An accused was charged with several offences. Before the jury selection process began, a ban on publication was imposed on all pre-trial applications in the proceedings pursuant to s. 648(1) of the Criminal Code. A consortium of major media outlets applied to have the ban clarified and declared applicable only after the jury is empaneled. The motion judge dismissed the application. Argued Date 2023-05-17 Keywords Criminal law - Publication bans - Criminal law — Publication bans — Whether a publication ban pursuant to s. 648 of the Criminal Code applies to proceedings before a jury is empaneled? Notes (British Columbia) (Criminal) (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).

Canadian Broadcasting Corporation, et al. v. Aydin Coban, et al. (40223)

(PUBLICATION BAN IN CASE)An accused was charged with several offences. Before the jury selection process began, a ban on publication was imposed on all pre-trial applications in the proceedings pursuant to s. 648(1) of the Criminal Code. A consortium of major media outlets applied to have the ban clarified and declared applicable only after the jury is empaneled. The motion judge dismissed the application. Argued Date 2023-05-17 Keywords Criminal law - Publication bans - Criminal law — Publication bans — Whether a publication ban pursuant to s. 648 of the Criminal Code applies to proceedings before a jury is empaneled? Notes (British Columbia) (Criminal) (By Leave) Language Floor Audio 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).

La Presse inc. v. Frédérick Silva, et al. (40175)

(CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)The respondent Frédérick Silva was charged with four counts of murder and one count of attempted murder based on incidents that occurred on February 21, 2017, and December 20, 2018. On November 22, 2019, the prosecution laid five charges by direct indictment. On August 2 and October 15, 2021, respectively, the Superior Court dismissed Mr. Silva’s motion for a stay of proceedings and Garofoli motion. It also made orders under s. 648(1) of the Criminal Code, R.S.C. 1985, c. C-46 (Cr. C.), prohibiting publication, broadcasting and transmission in relation to the two judgments. Further to those judgments, and by consent of the parties, Mr. Silva was tried by a judge alone, without a jury, on four of the five counts. On November 16, 2021, he formally recognized that the prosecution had discharged its burden on each essential element of the four offences through a nolo contendere proceeding. On January 27, 2022, Mr. Silva was convicted on the four counts. The parties agreed that the last count, which was for second degree murder, would be separated from the indictment and that Mr. Silva would have a trial by judge and jury on that count in May 2022. Before the trial began, La Presse brought a motion to lift the orders prohibiting publication, broadcasting and transmission in relation to the two judgments. On March 11, 2022, the Superior Court dismissed the motion. On May 6, 2022, Mr. Silva filed a nolo contendere proceeding on the last count, leading to the cancellation of the jury trial. Argued Date 2023-05-16 Keywords Criminal law - Publication bans - Criminal law ? Publication ban ? Orders prohibiting publication, broadcasting and transmission in relation to judgments on voir dire ? Whether s. 648 of Criminal Code applies prior to jury selection ? Whether Superior Court erred in applying Dagenais/Mentuck test ? Criminal Code, R.S.C. 1985, c. C-46, s. 648. Notes (Quebec) (Criminal) (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).

La Presse inc. v. Frédérick Silva, et al. (40175)

(CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)The respondent Frédérick Silva was charged with four counts of murder and one count of attempted murder based on incidents that occurred on February 21, 2017, and December 20, 2018. On November 22, 2019, the prosecution laid five charges by direct indictment. On August 2 and October 15, 2021, respectively, the Superior Court dismissed Mr. Silva’s motion for a stay of proceedings and Garofoli motion. It also made orders under s. 648(1) of the Criminal Code, R.S.C. 1985, c. C-46 (Cr. C.), prohibiting publication, broadcasting and transmission in relation to the two judgments. Further to those judgments, and by consent of the parties, Mr. Silva was tried by a judge alone, without a jury, on four of the five counts. On November 16, 2021, he formally recognized that the prosecution had discharged its burden on each essential element of the four offences through a nolo contendere proceeding. On January 27, 2022, Mr. Silva was convicted on the four counts. The parties agreed that the last count, which was for second degree murder, would be separated from the indictment and that Mr. Silva would have a trial by judge and jury on that count in May 2022. Before the trial began, La Presse brought a motion to lift the orders prohibiting publication, broadcasting and transmission in relation to the two judgments. On March 11, 2022, the Superior Court dismissed the motion. On May 6, 2022, Mr. Silva filed a nolo contendere proceeding on the last count, leading to the cancellation of the jury trial. Argued Date 2023-05-16 Keywords Criminal law - Publication bans - Criminal law ? Publication ban ? Orders prohibiting publication, broadcasting and transmission in relation to judgments on voir dire ? Whether s. 648 of Criminal Code applies prior to jury selection ? Whether Superior Court erred in applying Dagenais/Mentuck test ? Criminal Code, R.S.C. 1985, c. C-46, s. 648. Notes (Quebec) (Criminal) (By Leave) Language Floor Audio 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).

George Zacharias v. His Majesty the King (40117)

The appellant, George Zacharias, was convicted under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, for possession of 101.5 pounds of cannabis for the purpose of trafficking. The main issue at trial was whether Cst. MacPhail, who conducted a traffic stop of Mr. Zacharias’ truck, had reasonable suspicion to enter into an investigative detention and deploy a sniffer dog. The trial judge found that the initial investigative detention and the sniffer dog search were unlawful and breached the ss. 8 and 9 Charter rights of Mr. Zacharias to be free from unreasonable search and arbitrary detention. Applying the test in R. v. Grant, 2009 SCC 32, the trial judge then found that the first two factors did not strongly favour exclusion of the evidence and that the third one favoured inclusion. The evidence was therefore admitted.A majority of the Court of Appeal dismissed Mr. Zacharias’ appeal, declining to consider his arguments regarding the additional breaches that were neither included in his Charter notice nor argued at trial, as it would have been unfair for an appellate court to make findings of fact of new breach arguments. Further, the majority concluded that while the trial judge did not expressly include the s. 9 Charter breach in her consideration of the second stage of the Grant analysis, her failure to do so did not affect the result. In dissent, Khullar J.A. would have allowed Mr. Zacharias’ appeal, excluded the drug evidence and other evidence seized, set aside the conviction and entered an acquittal. In her view, while there was no reviewable error at the first and third stage of the Grant test, the second Grant factor strongly favoured exclusion of the evidence. The trial judge only considered the exterior search of the vehicle by the sniffer dog, but there were several more Charter breaches. Balancing the three factors together, Khullar J.A. found that admitting the evidence would undermine the reputation of the criminal justice system in the eyes of a reasonable person informed of all the relevant circumstances. Argued Date 2023-05-15 Keywords Constitutional law - Canadian charter (Criminal), Arbitrary detention (s. 9), Search and seizure (s. 8), Enforcement (s. 24) - Constitutional Law — Charter of Rights — Arbitrary detention — Search and seizure — Enforcement — Exclusion of evidence — Whether the trial judge properly considered all the relevant Charter-infringing state conduct. Notes (Alberta) (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).