Supreme Court of Canada Hearings

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).

Her Majesty the Queen v. Nigel Vernon Lafrance (39570)

The respondent was found guilty by a jury of second-degree murder. Shortly after the killing of the victim, police obtained a warrant to search the respondent’s house, and he was asked to voluntarily provide a statement to police while the search was being executed. The respondent agreed to do so, and he was interviewed in March 2015. He was not arrested at that time and was not provided with his Charter rights. Following the interview, the respondent consented to giving his fingerprints and a blood sample for DNA analysis, and he turned over his cell phone and some of his clothing. The respondent was subsequently arrested for murder in April 2015. He was given his Charter rights and the opportunity to contact legal counsel. After speaking to a lawyer, the respondent was interviewed and confessed to the murder. At trial, he brought an application seeking the exclusion of the evidence obtained as a result of the interviews, alleging his s. 10(b) Charter right had been breached on both occasions. The trial judge dimissed the application.The respondent appealed his conviction. A majority of the Court of Appeal for Alberta allowed the appeal, set aside the respondent’s conviction and ordered a new trial. It found that the respondent’s s. 10(b) rights had been breached during both interviews, and held that the evidence obtained as a result of the interviews should be excluded under s. 24(2) of the Charter. In dissent, Wakeling J.A. would have dismissed the appeal. Keywords Criminal law - Canadian charter (Criminal), Right to counsel (s. 10(b)) - Criminal law - Charter of Rights - Detention - Right to counsel - Whether the majority of the Court of Appeal erred in finding that the respondent’s rights under s. 10 of the Charter were breached - Canadian Charter of Rights and Freedoms, s. 10(b). 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).

Her Majesty the Queen v. Patrick Dussault (39330)

The respondent, Patrick Dussault, was arrested for murder and arson. Before his trial, he moved to exclude from the evidence an incriminating statement he had made to the police while being questioned; the reason he gave was that the statement had been obtained as the result of a violation of his right to counsel protected by s. 10(b) of the Canadian Charter of Rights and Freedoms. A voir dire was held. The trial judge dismissed the motion and found that the respondent’s statement was admissible in evidence. At his trial, the jury then found the respondent guilty of second degree murder.The respondent appealed the verdict. He argued that the trial judge had erred in dismissing the motion to exclude the incriminating statement and in finding that his right to counsel under s. 10(b) had not been violated. The respondent submitted that, in his telephone conversation with his lawyer, the latter had started to advise him but had not finished doing so, and that the refusal of the police to allow the respondent to continue that consultation when his lawyer arrived at the police station was a violation of the police duty to ensure the application of s. 10(b) of the Charter. The Court of Appeal unanimously allowed the appeal, set aside the guilty verdict and ordered a new trial. Keywords Criminal law - Criminal law — Charter of Rights — Right to counsel — Appeal — Power of intervention — Palpable error — Whether Court of Appeal erred regarding scope of its power of intervention by making its own assessment of facts even though it had identified no palpable error made by trial judge — Whether Court of Appeal erred in law in establishing principle of “continuous” right to counsel that departs from principles from this Court’s decision in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, by allowing second consultation despite absence of objective facts that would make it necessary — Whether Court of Appeal erred in law in determining whether legal assistance obtained was sufficient from perspective of counsel without regard to testimony of accused and to findings of fact of trial judge, who noted that accused had understood. 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).

Trent Terrence Sinclair v. Her Majesty the Queen (Part 2/2) (32537)

Charter of Rights - Criminal law - Right to counsel - Whether the Court of Appeal erred in holding that s. 10(b) of the Canadian Charter of Rights and Freedoms does not require the police to suspend further questioning a detainee who has exercised his right to counsel prior to the interrogation but requests a second consultation during the interrogation - Whether the Court of Appeal erred in holding that s. 10(b) of the Charter does not require the police to respect a detainee’s request to have his lawyer present during a custodial interrogation.Sinclair was convicted of manslaughter in the killing of Garry Grice on December 18, 2003. After being arrested, he was advised of his right to counsel and was taken to the police detachment. There, he twice spoke by telephone with a lawyer of his choice, each time for approximately three minutes. He was later interviewed by Sergeant Skrine for approximately five hours, who confirmed that Sinclair had exercised his right to counsel. During the interview, Sinclair stated on five occasions that he did not want to talk to the officer, wished to speak with his lawyer again and wanted his lawyer present during the interview. However, the officer deflected the requests, advised Sinclair that he did not have the right to have his counsel present, and continued with the questioning, gradually revealing more of the evidence against Sinclair as the interview wore on. Eventually, Sinclair implicated himself in Grice’s death. Later, the police placed him into a cell with an undercover officer, where he made similar incriminating statements to that officer. Sinclair also accompanied the police to where Grice had been killed and participated in a re-enactment. A voir dire was conducted to determine the admissibility of his statements. Keywords Canadian charter - criminal. 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).

Trent Terrence Sinclair v. Her Majesty the Queen (Part 1/2) (32537)

Charter of Rights - Criminal law - Right to counsel - Whether the Court of Appeal erred in holding that s. 10(b) of the Canadian Charter of Rights and Freedoms does not require the police to suspend further questioning a detainee who has exercised his right to counsel prior to the interrogation but requests a second consultation during the interrogation - Whether the Court of Appeal erred in holding that s. 10(b) of the Charter does not require the police to respect a detainee’s request to have his lawyer present during a custodial interrogation.Sinclair was convicted of manslaughter in the killing of Garry Grice on December 18, 2003. After being arrested, he was advised of his right to counsel and was taken to the police detachment. There, he twice spoke by telephone with a lawyer of his choice, each time for approximately three minutes. He was later interviewed by Sergeant Skrine for approximately five hours, who confirmed that Sinclair had exercised his right to counsel. During the interview, Sinclair stated on five occasions that he did not want to talk to the officer, wished to speak with his lawyer again and wanted his lawyer present during the interview. However, the officer deflected the requests, advised Sinclair that he did not have the right to have his counsel present, and continued with the questioning, gradually revealing more of the evidence against Sinclair as the interview wore on. Eventually, Sinclair implicated himself in Grice’s death. Later, the police placed him into a cell with an undercover officer, where he made similar incriminating statements to that officer. Sinclair also accompanied the police to where Grice had been killed and participated in a re-enactment. A voir dire was conducted to determine the admissibility of his statements. Keywords Canadian charter - criminal. 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).

Her Majesty the Queen v. Loblaw Financial Holdings Inc. (39220)

The issue in dispute is whether, during the 2001 to 2005 and 2008 and 2010 taxation years, the income of Glenhuron Bank Limited (“GBL”), a bank licenced in Barbados, was foreign accrual property income (“FAPI”) pursuant to ss. 91 and 95 of the Act. If so, the taxable income of Loblaw Financial Holdings Inc. in Canada must include a percentage of its affiliate’s FAPI equivalent to the participating percentage of the respondent’s shares in GBL. FAPI includes income from an investment business. The definition of investment business in s. 95(1) of the Act exempts a business, other than a business conducted principally with non-arm’s length persons, of a regulated foreign bank with greater than five full-time employees. The respondent appealed its tax reassessments on the basis that as GBL was a regulated foreign bank that met the added conditions, its income for the taxation years in question was not FAPI. The appellant argued that GBL was not a foreign bank, did not have greater that five full time employees and was not conducting business principally with non-arm’s length persons, since it was not in competition with anyone. The Crown also argued that the general anti-avoidance rule applied to a series of transactions by the respondent and GBL to give the appearance of compliance with the “investment business” exception.The Tax Court allowed the respondent’s appeals in part, holding that the foreign exchange gains or losses arising on GBL’s investment in short term securities should be on income account. However, the Court determined that while GBL is a regulated foreign bank with more than the equivalent of five full time employees, it was conducting business principally with related persons and therefore could not benefit from the financial institution exemption from investment business. It found, in obiter, that there had been no tax avoidance transactions. The Federal Court of Appeal allowed the respondent’s appeal, set aside the decision of the Tax Court, and referred the reassessment back to the Minister for reconsideration and reassessment on the basis that GBL’s FAPI consists only of income from investment management services provided to non-arm’s length parties. In its view, the receipts side of banking should not be considered when determining whether the investment business was conducted principally with non-arm’s length parties. Keywords Taxation - Income tax, Legislation, Interpretation - Taxation - Income tax - Tax avoidance - Legislation - Interpretation - Interpretation of foreign accrual property income provisions - Whether the business of the respondent’s foreign affiliate as a foreign bank was conducted principally with persons with whom it does not deal at arm’s length - Did the Federal Court of Appeal err in its interpretation of the definition of “investment business” in s. 95(1) of the Income Tax Act, particularly the phrase other than any business conducted principally with persons with whom the affiliate does not deal at arm’s length in the financial institution exception- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) ss. 91 and 95. 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).

Her Majesty the Queen v. Daniel James Gomboc (33332)

Charter of Rights - Criminal law - Search and seizure - Reasonable expectation of privacy - Digital recording ammeter - Exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms - Whether the majority of the Court of Appeal erred in law in concluding that police actions in asking the electrical service provider to measure the Respondent’s electrical consumption with a digital recording ammeter (“DRA”), and in reviewing the results produced by the DRA, involved a search subject to the requirements of s. 8 of the Charter - Whether the majority of the Court of Appeal erred in law in concluding that requesting the installation of the DRA and reviewing the DRA data constituted an unreasonable search.The Respondent’s home became suspicious to Calgary police when they were in his neighbourhood investigating an unrelated matter. The police observed condensation on the Respondent’s home windows, considerable moisture being vented through the chimney and under the deck, and unusual ice buildup around the vents. The officers also noticed a smell of “growing” marihuana from the public roadway and therefore suspected that the Respondent had a marihuana grow operation in his home. The police then requested an electrical service provider in the area to install a digital recording ammeter (“DRA”) which would create a record of when the electrical power was consumed on the Respondent’s property. No judicial authorization for the DRA installation was obtained. With the information provided by the DRA and the earlier observations, the police obtained a search warrant to search the Respondent’s home. The trial judge dismissed the Respondent’s application to exclude the DRA evidence, although she did find that the Respondent’s s. 8 Charter rights had been breached. The Respondent was convicted of two drug offences. The majority of the Court of Appeal allowed the appeal and ordered a new trial, finding that the use of the DRA amounted to a form of surreptitious surveillance of an individual by the police which, without prior judicial authorization, constituted unreasonable search and seizure. O’Brien J.A. would have dismissed the appeal. Keywords Canadian charter - criminal. 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).