Supreme Court of Canada Hearings

Minister of Public Safety and Emergency Preparedness, et al. v. Tusif Ur Rehman Chhina (37770)

Mr. Chhina was placed in immigration detention pending deportation from Canada. The Immigration and Review Board held 12 reviews of his detention and each time ordered continued detention. After 10 months, Mr. Chhina applied to the Court of Queen’s Bench for a writ of habeas corpus on the grounds that his detention was lengthy and indeterminate, therefore illegal. He invoked his right under s. 10(c) of the Charter of Rights and Freedoms to have the validity of his detention determined and to be released if the detention was not lawful, under s. 7 of the Charter to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice, and under s. 9 of the Charter not to be arbitrarily detained or imprisoned. The Court of Queen’s Bench of Alberta declined to exercise jurisdiction to hear the habeas corpus application. The Court of Appeal Appeal allowed an appeal and remitted the applicaiton to the Court of Queen’s Bench for a rehearing on its merits. Argued Date 2018-11-14 Keywords Courts - Jurisdiction, Habeas corpus, Immigration, Procedure - Courts - Jurisdiction - Habeas corpus - Immigration - Immigration and Refugee Board reviews respondent’s immigration detention and orders continued detention - Respondent applies to Court of Queen’s Bench for writ of habeas corpus - Whether courts should decline habeas corpus jurisdiction in immigration matters - Whether reviews of immigration detention decisions under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, are more limited and less favourable than reviews by way of habeas corpus - Whether reviews of immigration detention decisions for Charter compliance can only occur on habeas corpus applications - Whether reviews of immigration detention decisions do not require expertise in immigration matters?. Notes (Alberta) (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).

Barrett Richard Jordan v. Her Majesty the Queen (36068)

Canadian Charter of Rights and Freedoms – Right to be tried within a reasonable time – How is the issue of institutional delay to be weighed in a s. 11(b) application? – Canadian Charter of Rights and Freedoms, s. 11(b).Between March and December 2008, the applicant was the subject of a police investigation into a dial-a-dope operation selling cocaine and heroin. The police executed a search warrant at the applicant’s residence which yielded 42.3 grams of heroin, 1463.5 grams of cocaine and crack cocaine, $6640 in cash and an employee “shift calendar” for the dial-a-dope line. The applicant was charged with several drug trafficking related offences in 2008. In September 2012 the applicant brought an application for judicial stay of proceedings pursuant to s. 24(1) of the Charter alleging his rights under s. 11(b) had been infringed due to an unreasonable delay in bringing his case to trial. The trial judge found that 32.5 months of delay in this case was due to institutional delay. Argued Date 2015-10-07 Keywords Canadian charter (Criminal) - Right to be tried within a reasonable time (s. 11(b)). 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).

In the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26;, et al. (35586)

Legislation - Interpretation - Constitutional law - Supreme Court of Canada - Appointment of judges - ReferenceThe Honourable Justice Marc Nadon was appointed to the Supreme Court of Canada on October 3, 2013, to fulfill the requirements of s. 6 of the Supreme Court Act which requires that three of the judges of this Court be drawn from the province of Quebec. He was sworn in on October 7, 2013. Prior to his appointment to the Supreme Court, Justice Nadon was a judge of the Federal Court of Appeal.Third parties brought an application for judicial review in Federal Court challenging (i) Justice Nadon’s appointment on the basis that sections 5 and 6 of the Supreme Court Act do not permit the appointment of Federal Court or Federal Court of Appeal Judges to the Supreme Court of Canada, and (ii) Parliament’s ability to legislate with respect to the criteria set out at sections 5 and 6 of the Act. Pending the resolution of this challenge to his appointment, Justice Nadon announced that he would not to participate in matters before the Supreme Court of Canada.On October 22, 2013, a bill was introduced in the House of Commons proposing to add two declaratory provisions to the Supreme Court Act so as to expressly permit the appointment to the Supreme Court of Canada of a person who currently is, or was at any time, a member of a provincial bar with at least 10 years standing. That same day, the Governor in Council referred two questions to the Court by way of Order in Council P.C. 2013-1105:1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?2. Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No.2?The proceedings before the Federal Court were stayed pending the determination of the questions submitted to this Court. Argued Date 2014-01-15 Keywords Courts - Interpretation, Constitutional law. Notes (Canada) (Civil) (Reference) 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).

Prime Minister of Canada, et al. v. Omar Ahmed Khadr (33289)

Constitutional law - Charter of Rights - Right to life, liberty and security of person - Fundamental justice - Remedy - Crown prerogative in matters of foreign relations - Interviews conducted in Guantanamo Bay by Canadian officials who knew that Canadian child had been subjected to sleep deprivation techniques - Refusal of the Canadian Government to repatriate its national - Whether the courts below erred in finding that the Respondent’s rights under s. 7 of the Charter were breached - If such a breach occurred, whether the remedy was appropriate and just in the circumstances.Mr. Khadr, a Canadian citizen, was taken prisoner in Afghanistan when he was 15 years old and has been detained by U.S. Forces since 2002 at Guantanamo Bay, Cuba, where he is currently facing murder and other terrorism-related charges. During his detention, Mr. Khadr was given no special status as a minor. He was not allowed to communicate with anyone outside Guantanamo Bay until November 2004, when he met with legal counsel for the first time. The Canadian Government has asked, through diplomatic channels, for consular access and other assurances, but it is its policy not to request his repatriation until the conclusion of the prosecution. In 2003, Canadian officials questioned Mr. Khadr, still a minor, at Guantanamo Bay, with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities. In 2006, after formal charges were laid against him, Mr. Khadr sought disclosure in Canada of, notably, the records of the interviews conducted at Guantanamo Bay. The Supreme Court of Canada ordered the disclosure (“Khadr 2008”). After the information was disclosed, it became clear that when the officials interviewed Mr. Khadr, they were aware that he had been subjected to a form of sleep deprivation, known as the “frequent flyer program”, to make him more amenable and willing to talk. Mr. Khadr asked the Canadian Government to repatriate him, but to no avail. He sought judicial review of the policy and decision of the Canadian Government not to seek his repatriation. The Federal Court granted his application and ordered the Government to seek his repatriation from the U.S. as soon as practicable. In a majority decision, the Federal Court of Appeal dismissed the Government’s appeal. Argued Date 2009-11-13 Keywords Canadian charter - civil. Notes (Federal Court) (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).

Association de médiation familiale du Québec v. Isabelle Bisaillon, et al. (39155)

Following their separation, Isabelle Bisaillon and Michel Bouvier attended five mediation sessions and then signed the standard agreement proposed by the Association de médiation familiale du Québec at the start of the process, which provided in part that the content of the process was to remain confidential. At the end of the process, the mediator prepared a summary of the matters agreed upon in mediation and sent it to the parties, who did not sign it or have a formal agreement drawn up.On an application filed by Ms. Bisaillon for judicial partition into equal shares of an immovable held in undivided co-ownership through sale by judicial authority, Mr. Bouvier argued in defence that a settlement existed: the summary of the matters agreed upon in mediation amounted to an agreement. In the Superior Court, Ms. Bisaillon argued that the mediation process was subject to a fundamental principle of confidentiality, which meant that evidence of the summary of the matters agreed upon and of anything arising from the mediation was inadmissible. The summary was not a contract and was not enforceable or binding if not signed or homologated, which was the case here. Moreover, the cashing of the cheques written by Mr. Bouvier did not amount to the acceptance or implementation of an agreement.The Superior Court, among other things, confirmed the existence of the parties’ agreement on the partition of the immovable and ordered its implementation. It found the summary of the matters agreed upon and any other related document or discussion to be admissible in evidence. Although the parties had agreed in their mediation contract that the summary of the matters agreed upon was privileged, they had implicitly waived the privilege by implementing and relying on the agreement they had reached. The Court of Appeal dismissed Ms. Bisaillon’s appeal. Argued Date 2021-03-18 Keywords Family law - Family law - Mediation - Settlement privilege - Exception - Summary of matters agreed upon in family mediation - Legal and binding nature of summary - Admissibility in evidence - Whether principles for exception to settlement privilege outlined in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, apply in context of family mediation - Whether summary of matters agreed upon in mediation and any other related document or statement, including testimony, arising from family mediation can be admissible in evidence for purpose of proving that agreement was reached during family mediation and to prove terms of that agreement. Notes (Quebec) (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).

Her Majesty the Queen v. William Victor Schneider (39559)

Following a jury trial, the respondent, William Victor Schneider, was convicted of second degree murder and interfering with a body after death, contrary to ss. 235(1) and 182(b) of the Criminal Code, R.S.C. 1985, c. C-46.Before the Court of Appeal, the respondent submitted that the murder conviction should be set aside and a new trial ordered. He argued that the trial judge erred in admitting statements made during a telephone conversation overheard by his brother; erred in her instructions to the jury; and mishandled a question posed by the jury. A majority of the Court of Appeal allowed the appeal and ordered a new trial on the count of second degree murder. The majority dismissed the second and third grounds of appeal but held that the trial judge erred in admitting the overheard conversation. In its view, no properly instructed jury could conclude that the overheard statements were an admission. Accordingly, they were not relevant and it was an error to admit them into evidence and put them before the jury.In dissent, DeWitt-Van Oosten J.A. would have dismissed all three grounds of appeal and therefore the appeal from conviction. In her view, the overheard telephone conversation statements were properly admitted into evidence. The trial judge correctly determined that the overheard statements were logically relevant to an issue at trial and the respondent did not demonstrate error in the trial judge’s exercise of discretion on legal relevance or the weighing of probative value and prejudicial effect. To the dissenting judge, the trial judge properly left the meaning of the impugned words and their weight with the jury. A functional review of the charge to the jury revealed the instructions sufficiently cautioned the jury on use. Argued Date 2021-12-10 Keywords Criminal law - Evidence, Admissibility - Criminal law - Evidence - Admissibility - Relevancy - Overheard telephone conversation - Whether the trial judge erred in admitting statements made by the accused during a phone conversation, overheard by the accused’s brother. Notes (British Columbia) (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).

Darren Caley Daniel Sundman v. Her Majesty the Queen (39569)

At trial before judge alone, the appellant, Mr. Sundman, was acquitted of first degree murder but convicted of the included offence of second degree murder. The trial judge found that Mr. Sundman could not be convicted of first degree murder pursuant to s. 231(5)(e) of the Criminal Code because, at the time of the shooting, the victim’s confinement had come to an end.The Crown appealed the acquittals of first degree murder and Mr. Sundman appealed the conviction for second degree murder. A unanimous Court of Appeal dismissed Mr. Sundman’s appeal but allowed the Crown’s appeal from the acquittal of first degree murder, set aside the conviction for second degree murder and entered a verdict of guilty for first degree murder. The Court of Appeal held that the trial judge erred in law in addressing the scope of the offence of unlawful confinement. It went on to explain that even assuming that the trial judge’s conclusion that the act of confinement to which Mr. Sundman was a party had ended moments before the killing did not give rise to an appealable error in law, the trial judge nonetheless erred in law by requiring proof that the confinement and the killing occurred simultaneously. By doing so, the trial judge committed an error of law in applying R. v. Paré, [1987] 2 S.C.R. 618. The court held that on the factual findings made by the judge, Mr. Sundman was guilty of first degree murder and the judge erred in law by failing to come to this conclusion. Argued Date 2021-12-09 Keywords Criminal law - Elements of offence - Criminal law - Elements of offence - First degree murder - Unlawful confinement - Whether the trial judge’s finding that there was an insufficient temporal-causal nexus between the unlawful confinement and murder is a finding of fact which the Crown could not appeal - Whether the trial judge erred in law by implicitly importing a requirement that a person be physically restrained before being unlawfully confined under the Criminal Code, R.S.C. 1985, c. C-46. Notes (British Columbia) (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).

Her Majesty the Queen v. Russell Steven Tessier (39350)

The body of a murdered man was discovered in a ditch. He had been fatally shot in the head. The police determined that Mr. Tessier was a friend and business associate of the deceased. They asked him for an interview with intent to ascertain the victim’s last known movements and to establish a victimology. After voluntarily attending at a police station for an interview, Mr. Tessier took the interviewing officer to a truck to retrieve items that belonged to the deceased. Later that day, he returned to the police station and requested a second interview to provide more information. He asked the police to accompany him to his apartment to confirm his rifle was still there. At the apartment, it was determined that the rifle was missing. The police then suspected Mr. Tessier committed the murder and, for the first time, Mr. Tessier was cautioned and instructed on his right to counsel. The trial judge admitted Mr. Tessier’s statements to the police before he was cautioned into evidence. A jury convicted Mr. Tessier of first degree murder. He appealed from the conviction. The Court of Appeal set aside the conviction and ordered a new trial. Keywords Criminal law - Evidence - Criminal law - Evidence - Common-law confessions rule - Admissibility of a witness’s statements to the police uttered before the police suspect that the witness committed the offence under investigation and caution the witness - Does the confessions rule require proof beyond a reasonable doubt that the accused actually knew he had the right to remain silent and that anything he said could be used against him in evidence - Are police required to caution persons who are not suspected of an offence before questioning and if so, what is the impact of the presence or absence of the caution on the voluntariness of any statements made - Was the Court of Appeal wrong to interfere with the trial judge’s finding of voluntariness of accused’s statements to the police prior to being cautioned?. Notes (Alberta) (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).

Germaine Anderson on her own behalf and on behalf of all other Beaver Lake Cree Nation beneficiaries of Treaty No. 6 and Beaver Lake Cree Nation v. He...

Beaver Lake Cree Nation filed a claim against Alberta and Canada in 2008, seeking various declarations of rights, injunctions, and damages for the cumulative effects of resource developments allowed on their traditional lands protected by Treaty 6. The trial is currently scheduled for 2024. Thus far, Beaver Lake has spent approximately $3 million in legal fees, of which approximately one half has been paid from its own funds; it presently pays $300,000 in legal fees per year.Beaver Lake filed an application for advance costs in the amount of $5 million to allow them to proceed with their claim. The case management judge at the Alberta Court of Queen’s Bench found that Beaver Lake met the test for advance costs, including the “financial means” branch of the test, The case management judge awarded partial advance costs to Beaver Lake, ordering Alberta and Canada to each pay $300,000 per year towards Beaver Lake’s legal fees, until such time as the trial is concluded or the litigation is resolved, in addition to the $300,000 that Beaver Lake was spending annually on the litigation.The Alberta Court of Appeal reversed this decision and set aside the order for partial advance costs. It found that the case management judge had committed an error of law with respect to the manner in which the test for advance costs was applied to the facts of this case, and that Beaver Lake had failed to satisfy the “financial means” branch of the test for advance costs. In particular, based on fresh evidence adduced by Canada, the Court of Appeal found that Beaver Lake in fact had access or potential access to several million dollars in order to continue funding the litigation, including having received $2.97 million in December 2019 from a resolved Specific Claim. As a result of Beaver Lake’s available resources, the Court of Appeal concluded that the original order for advance costs was unreasonable.Beaver Lake now appeals the Court of Appeal decision to the Supreme Court of Canada. Keywords Civil procedure - Costs, Advance costs - Civil procedure - Costs - Advance costs - First Nation pursuing claim against provincial and federal Crown for infringement of treaty rights - First Nation seeking advance costs to fund litigation - Case management judge finding criteria for partial advance costs order satisfied - Court of Appeal overturning order as unreasonable, and finding impecuniosity branch of test not met - Whether Court of Appeal erred in law in interpreting financial means branch of test by considering only whether funds available and excluding consideration of unique social, political, and economic context of impoverished First Nations, and consideration of reasonable financial choices - If answer to Issue 1 is ‘no”, whether Court of Appeal erred in holding that Beaver Lake did not satisfy test based on findings made by case management judge, including that Beaver Lake could not both fund the litigation and meet basic needs - Whether Court of Appeal erred in law in holding that case management judge’s discretionary order was unreasonable by including defined annual cap, and failing to require repayment of award. Notes (Alberta) (Civil) (By Leave) (Sealing order) (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).

Ross McKenzie Kirkpatrick v. Her Majesty the Queen (39287)

(PUBLICATION BAN IN CASE)The appellant, Mr. Kirkpatrick, was charged with sexual assault. The complainant told the appellant that she insisted on condom use during sexual intercourse. They engaged in intercourse on two occasions, but on the second occasion, unbeknownst to the complainant, the appellant did not wear a condom. The complainant testified that she had not consented to intercourse without a condom, and her evidence was that she would not have done so if asked.At trial, following a successful no evidence motion, the appellant was acquitted of sexual assault. Relying on R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, the trial judge found that under s. 273.1 of the Criminal Code, there was no evidence that the complainant had not consented to the sexual activity in question. Turning to s. 265(3)(c) of the Code, the trial judge concluded that there was also no evidence to show that the appellant had acted fraudulently.The Court of Appeal unanimously allowed the Crown’s appeal and remitted the matter for a new trial. On the issue of consent, Groberman J.A. (with Saunders J.A. concurring) held that the majority decision of the Court in Hutchinson allowed a person to limit their consent to sexual intercourse on the condition that their partner wear a condom. He held that sexual intercourse with a condom is a different physical act than sexual intercourse without a condom. The complainant had therefore not consented to the sexual activity in question under s. 273.1 of the Criminal Code. Bennett J.A. was instead of the view that the majority in Hutchinson clearly stated that the use of a condom was to be determined under s. 265(3) of the Code - whether consent was vitiated by fraud. She therefore agreed with the trial judge that there was no evidence to suggest that the complainant had not voluntarily agreed to the sexual activity in question.On the issue of fraud, Bennett J.A. (Saunders J.A. concurring in the alternative) ruled that the complainant’s consent was vitiated by fraud as the appellant had been dishonest when he did not disclose that he had not worn a condom and that there had been deprivation. Groberman J.A. held that the trial judge did not err in holding that there was no evidence to support that the appellant had acted fraudulently. Keywords Criminal law - Offences - Criminal law - Offences - Sexual assault - Consent - Whether the use of a condom and/or contraceptives forms part of the sexual activity a person is consenting to pursuant to s. 273.1(1) of the Criminal Code - Whether the failure of a party to advise a sexual partner that a condition or quality of the sexual activity they have agreed to is absent constitutes some evidence of fraud under s. 265(3) of the Criminal Code - Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3)(c), 273.1(1). 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).