Supreme Court of Canada Hearings

Her Majesty the Queen v. J.J. (Day 2/2) (39133)

(publication ban) (sealing order)The respondent, J.J., was charged with sexual assault, contrary to s. 271 of the Criminal Code. His lawyer is in possession of communications between J.J. and the complainant. His lawyer wants to use those communications on cross-examination of the complainant; however, he says those communications meet the definition of a record in s. 278.1 of the Criminal Code and as a result he must apply to have the communications admitted as relevant to an issue at trial pursuant to ss. 278.92, 278.93 and 278.94. The application must be made on seven days’ notice to the Crown, unless the trial judge permits a shorter period. Duncan J. held that the seven-day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1. Duncan J. “read down” s. 278.93(4) of the Code to: (1) remove the seven day notice requirement in s. 278.93(4) only as it applies to s. 278.92 applications; and (2) provide that s. 278.92 applications should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. On October 5, 2020, J.J.’s trial on a single count of sexual assault commenced before a judge and jury in the B.C. Supreme Court. On October 9, 2020, the jury returned a verdict of not guilty. The Crown has not appealed the verdict. Keywords Canadian charter (Criminal) - Constitutional law, Criminal law - Charter of Rights - Constitutional law - Criminal law - Admissibility and use of third party records in the possession of the accused for certain enumerated sexual offences - Interlocutory constitutional ruling - Whether the trial judge erred in concluding that the seven-day notice requirement in s. 278.93(4) of the Criminal Code infringes s. 7 of the Charter and does not constitute a reasonable limit pursuant to s. 1 - Charter of Rights and Freedoms, ss. 1 and 7 - Does the “records screening regime” in ss. 278.92 to 278.94 of the Criminal Code violate s. 7, 11(c), and/or 11(d) of the Charter of Rights and Freedoms such that it should be declared of no force or effect? Notes (British Columbia) (Criminal) (By Leave) (Publication ban in case) (Sealing order) 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. J.J. (Day 1/2) (39133)

(publication ban) (sealing order)The respondent, J.J., was charged with sexual assault, contrary to s. 271 of the Criminal Code. His lawyer is in possession of communications between J.J. and the complainant. His lawyer wants to use those communications on cross-examination of the complainant; however, he says those communications meet the definition of a record in s. 278.1 of the Criminal Code and as a result he must apply to have the communications admitted as relevant to an issue at trial pursuant to ss. 278.92, 278.93 and 278.94. The application must be made on seven days’ notice to the Crown, unless the trial judge permits a shorter period. Duncan J. held that the seven-day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1. Duncan J. “read down” s. 278.93(4) of the Code to: (1) remove the seven day notice requirement in s. 278.93(4) only as it applies to s. 278.92 applications; and (2) provide that s. 278.92 applications should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. On October 5, 2020, J.J.’s trial on a single count of sexual assault commenced before a judge and jury in the B.C. Supreme Court. On October 9, 2020, the jury returned a verdict of not guilty. The Crown has not appealed the verdict. Keywords Canadian charter (Criminal) - Constitutional law, Criminal law - Charter of Rights - Constitutional law - Criminal law - Admissibility and use of third party records in the possession of the accused for certain enumerated sexual offences - Interlocutory constitutional ruling - Whether the trial judge erred in concluding that the seven-day notice requirement in s. 278.93(4) of the Criminal Code infringes s. 7 of the Charter and does not constitute a reasonable limit pursuant to s. 1 - Charter of Rights and Freedoms, ss. 1 and 7 - Does the “records screening regime” in ss. 278.92 to 278.94 of the Criminal Code violate s. 7, 11(c), and/or 11(d) of the Charter of Rights and Freedoms such that it should be declared of no force or effect? Notes (British Columbia) (Criminal) (By Leave) (Publication ban in case) (Sealing order) 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).

Mike Ward v. Commission des droits de la personne et des droits de la jeunesse (39041)

As part of a stand-up routine, comedian Mike Ward used dark humour to “deflate” what he called the “sacred cows” of Quebec’s artistic milieu in reference to a number of prominent public figures. One of his subjects was Jérémy Gabriel, a young man with Treacher Collins Syndrome who had become famous by singing for well-known public figures. In his routine, Mr. Ward made a number of comments relating to physical characteristics of Mr. Gabriel caused by his handicap. Mr Gabriel and his parents filed a complaint of discrimination with the Commission des droits de la personne et des droits de la jeunesse (the “Commission”). The Commission submitted an application to the Human Rights Tribunal (the “Tribunal”). The Tribunal concluded that Mr. Ward’s comments were discriminatory under Quebec’s Charter of human rights and freedoms. It held that the comments violated Mr. Gabriel’s right to dignity and that the violation was not justified by Mr. Ward’s right to freedom of expression. The Tribunal awarded damages for moral injury and punitive damages to Mr. Gabriel and to his mother. The majority of the Court of Appeal allowed Mr. Ward’s appeal in part. It held that in balancing Mr. Gabriel’s right to dignity with Mr. Ward’s right to freedom of expression, the Tribunal was reasonable in concluding that Mr. Ward’s comments surpassed what could reasonably be tolerated by Mr. Gabriel. However, it quashed the order awarding damages to Mr. Gabriel’s mother, finding that she was not subjected to discrimination. A dissenting judge would have allowed the appeal in full. She did not agree that the Tribunal’s conclusion that the comments were discriminatory was reasonable.
Keywords
Human rights - Right to equality, Right to dignity - Human rights - Right to equality - Right to dignity - Right to freedom of expression - Young person with handicap among public figures who were subject of jokes in comedy routine - Human Rights Tribunal finding that comments were discriminatory and were not justifiable on basis of freedom of expression - Tribunal awarding damages for moral injury and punitive damages to complainant and complainant’s mother - Court of Appeal upholding finding of discrimination but quashing order awarding damages to complainant’s mother - Whether political or artistic speech mentioning or mocking personal characteristics amounts to discrimination, thereby giving Human Rights Tribunal jurisdiction to grant redress - Whether appellant’s comedy routine is justified as free speech under Quebec’s Charter of human rights and freedoms - Whether freedom of expression provides same protection to artistic expression as it does to political expression - Whether punitive damages could be awarded in this case - Charter of human rights and freedoms, CQLR, c. C-12, ss. 3, 4, 10.
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, et al. v. David Sullivan, et al. (39270)

Mr. Sullivan attempted suicide by ingesting a prescription drug known to cause psychosis as a side effect. In a psychotic state, he stabbed his mother. Mr. Chan consumed magic mushrooms. In a psychotic state, he fatally stabbed his father and then he stabbed his father’s partner. At their trials, each accused sought to raise non-mental disorder automatism as a defence but the trial judges applied s. 33.1 of the Criminal Code, R.S.C. 1985, c. C-46, which sets out conditions in which the defence is not available. In Mr. Chan’s case, the trial judge also held that s. 33.1 infringes ss. 7 and s. 11(d) of the Charter of Rights and Freedoms but it is not unconstitutional because the infringements are justified under s. 1 of the Charter. Mr. Sullivan was convicted of aggravated assault and assault with a weapon. Mr. Chan was convicted of manslaughter and aggravated assault. The Court of Appeal allowed appeals. It found s. 33.1 unconstitutional. It acquitted Mr. Sullivan on both counts and ordered a new trial for Mr. Chan. Keywords Constitutional law - Constitutional law - Charter of Rights and Freedoms - Fundamental justice - Presumption of innocence - Assaults occurring during states of psychosis caused by ingesting intoxicants - Accused raising defence of non-mental disorder automatism - Defence not available if accused’s state of psychosis caused by self-induced intoxication pursuant to s. 33.1 of Criminal Code - Whether s. 33.1 infringes ss. 7 or 11(d) of the Charter - If s. 33.1 infringes ss. 7 or 11(d) of the Charter, is the infringement justified under s. 1 of the Charter - Whether normal rules of stare decisis apply to declarations of invalidity made by superior court judges pursuant to s. 52(1) of the Constitution Act, 1982?. Notes (Ontario) (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).

Tyler Gordon Strathdee v. Her Majesty the Queen (39556)

The appellant was charged with second-degree murder, aggravated assault and breaking and entering with intent to commit an indictable offence. A group of at least five men, including the appellant, entered an apartment and began assaulting the occupants. Four occupants were stabbed, one of whom died of a single stab wound. The trial judge found that the members of the group, including the appellant, had a common purpose to assault the occupants of the apartment and to assist each other in that purpose, and she found the appellant guilty of three counts of aggravated assault as a party to those offences under s. 21(2) of the Criminal Code. Concerning the murder charge, the trial judge reasoned that an accused cannot be found liable as a joint principal under s. 21(1)(a) of the Code where the cause of death could have only been inflicted by one person. The trial judge acquitted the appellant of both second-degree murder and manslaughter, and also acquitted him of break and enter with intent.The Crown appealed the manslaughter acquittal, and the appellant cross-appealed his convictions for aggravated assault. The Court of Appeal for Alberta found that the trial judge had erred in her application of the law on joint participation and allowed the Crown’s appeal, set aside the acquittal, and entered a conviction for manslaughter. The appellant’s cross-appeal was dismissed, and his convictions for aggravated assault were upheld.
Keywords
Criminal law - Criminal law - Parties to offences - Joint participation - Whether the trial judge erred in her application of the law on joint principals in acquitting the appellant of manslaughter - Criminal Code, R.S.C. 1985, c. C-46, s. 21.
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. Liam Reilly (39531)

The respondent, Liam Reilly, was charged with robbery and firearms-related offences. Police attended at Mr. Reilly’s residence after he was identified as one of four perpetrators involved in two armed robberies. Mr. Reilly was on probation at the time and when he did not present himself at the door of his residence for his curfew check, one of the officers entered through an unlocked rear sliding door, knocked on Mr. Reilly’s bedroom door and arrested him. The officers then performed a clearing search of the residence and observed evidence related to the robberies. An information to obtain (“ITO”) was subsequently drafted by the police and a search warrant was obtained based in part on observations from the clearing search.Before trial, a voir dire was held. Mr. Reilly was unsuccessful in seeking an order, pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude the evidence seized in his residence on the basis that the ITO was facially invalid and the search warrant should not have been issued. Following the voir dire ruling, Mr. Reilly invited the judge to convict him of six counts of robbery and firearms-related offences.Mr. Reilly appealed his convictions on the basis that the trial judge erred in finding that reasonable grounds existed for the issuance of the search warrant, and in not excluding the evidence seized pursuant to s. 24(2) of the Charter. A majority of the Court of Appeal allowed the appeal, excluded the evidence, quashed the convictions and ordered a new trial. The majority held that the trial judge did not err in law or in principle in upholding the search warrant, but did err by considering the Charter-compliant conduct of the police as mitigating the seriousness one of the officer’s Charter breaches and by improperly weighing the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The majority conducted a fresh s. 24(2) analysis and held that despite a compelling interest in the adjudication of the case on its merits, the evidence would bring the administration of justice into disrepute. In dissent, Willcock J.A. would have dismissed the appeal. In his view, the majority should have deferred to the trial judge’s s. 24(2) analysis instead of engaging in a fresh and independent analysis. Willcock J.A. disagreed that the trial judge erred in law in his s. 24(2) assessment of whether the admission of the evidence thus obtained would bring the administration of justice into disrepute.
Keywords
Constitutional law - Canadian charter (Criminal), Search and seizure (s. 8), Remedy - Constitutional law - Charter of Rights - Search and seizure - Remedy - Exclusion of evidence - Whether the majority of the Court of Appeal erred in concluding that the trial judge erred in law by considering some Charter-compliant police conduct to be mitigating - Whether the majority erred in concluding that the trial judge erred in law in his s. 24(2) assessment by improperly weighing the factors considered in that assessment - Whether the majority erred by conducting a fresh s. 24(2) analysis, as they ought to have deferred to the trial judge’s assessment under s. 24(2) - Whether the majority erred in their fresh s. 24(2) analysis by attributing no weight to the fact that the evidence linking the accused to the robberies was obtained by a lawfully issued search warrant, and there was no causal connection between the Charter breaches and the issuance of the search warrant.
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Notes
(British Columbia) (Criminal) (As of Right)
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Sylvia H.C.C. Richardson v. Mark Edward Richardson (39123)

The parties were married in 2003 and divorced in 2015. They have both since remarried. Their daughter was born in 2005 and they had a son in 2011. They all resided in the Niagara region until 2017. In 2015, the parties participated in an assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Ms. Richardson was seeking to have the children move with her to Ottawa, where she planned to relocate. The assessor recommended that the children stay in the Niagara region and that the parties have joint custody. The parties accepted this recommendation and settled the matter pursuant to a consent order in 2016. At the time both parties had residences in the Niagara region and Ms. Richardson was dividing her time between the Niagara region and the Ottawa area, where she had a home with her new spouse.In July 2017, Ms. Richardson sold her Niagara residence and moved to Ottawa. She brought a motion to change the consent order on the basis that it would be in the children’s best interests to reside primarily with her in Ottawa. The parties could not settle the matter and it proceeded to trial. On the third day of the trial, counsel for the parties presented a proposed settlement to the trial judge that provided that the children would move from their home in the Niagara region to Ottawa to live primarily with their mother. The trial judge did not accept the terms of the minutes of settlement and stated that he wanted to hear all of the evidence. The trial proceeded. The trial judge concluded that the children would not relocate to Ottawa. This decision was upheld by a majority of the Court of Appeal.
Keywords
Family law - Custody, Judgments and orders - Family law - Custody - Judgments and orders - Reasons - Trial judge making custody order contrary to terms of minutes of settlement signed by parties during course of trial - In family law proceedings involving parenting issues, when is it appropriate for courts to reject parties’ reasonable settlement agreements, and what are the standards for rejecting such settlements? - When, if ever, is it appropriate for a trial judge to continue to sit on a trial after being privy to the parties’ settlement positions?
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Notes
(Ontario) (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).

Meranda Leigh Dingwall, et al. v. Her Majesty the Queen, et al. (39274)

The three appellants, Ms. Dingwall, Mr.Russell, and Mr. Richet, were convicted of aggravated assault and various firearm offences in connection to a drive-by shooting occurring outside a residential house in British Columbia. At trial, the Crown’s case was based on circumstantial evidence. The trial judge concluded that Mr. Russell and Mr. Richet were guilty as principals or aiders or abettors for all charges. Ms. Dingwall was found guilty as an aider or abettor for the charges relating to the drive-by shooting and as a principal or aider or abettor for the charges related to the burning of a truck. The three appellants appealed their respective convictions. The majority at the Court of Appeal dismissed the appeals. It held that the verdicts were not unreasonable. There was agreement with the trial judge that no inference other than guilt was available given the evidence and absence of evidence, assessed logically, and in light of human experience and common sense.In dissent, Butler J.A. disagreed with the disposition of Ms. Dingwall’s appeal relating to the drive-by shooting charges. He would have allowed her appeal with respect to counts 3 to 6 and directed acquittals for those offences. He would have dismissed Ms. Dingwall’s appeal from her other convictions and dismissed the appeals of Mr. Russell and Mr. Richet. In his view, the trial judge erred in concluding that the only rational inference to be drawn from the evidence was that Ms. Dingwall aided or abetted in the offences described under those counts. To Butler J.A., the trial judge failed to properly consider the lack of any evidence about Ms. Dingwall’s activities before and during the shooting offences, and failed to consider the absence of evidence given her potential liability as a party, rather than a principal, to those offences. As Ms. Dingwall’s participation in the offences was not the only rational inference on the evidence, the Crown could not be taken to have met its burden of proof and the trial judge’s verdict was therefore unreasonable.
Keywords
Criminal law - Appeals, Evidence - Criminal law - Appeals - Unreasonable verdict - Circumstantial evidence -Parties to offence - Whether the trial judge erred in law in his determination that the appellants’ guilt on counts 3, 4, 5 and 6 was the only reasonable conclusion available on the totality of the evidence.
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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).

Sokha Tim v. Her Majesty the Queen (39525)

The appellant was charged with offences related to the possession of a handgun, possession of fentanyl, and breach of an undertaking. He had been involved in a single-vehicle collision, and an intervening police officer observed a small bag containing a single yellow pill in his car. The officer identified the pill as gabapentin, a substance which he erroneously believed to be a controlled substance under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and placed the appellant under arrest for possession of a controlled substance. Further searches of the appellant and his vehicle yielded fentanyl and a loaded firearm. At trial, the appellant sought exclusion of the evidence pursuant to s. 24(2) of the Charter on the basis that he had been arrested for a non-existent offence, resulting in a violation of his ss. 8 and 9 Charter rights. The trial judge concluded that the arrest and subsequent searches were lawful, and dismissed the application.A majority of the Court of Appeal of Alberta dismissed the appellant’s appeal, holding that while the officer had been mistaken in his belief that gabapentin is a controlled substance, he had not been enforcing a non-existing law, and his belief that the appellant had been committing an offence was both subjectively and objectively reasonable. In dissent, Veldhuis J.A. would have allowed the appeal, excluded the evidence, and entered acquittals on all counts.
Keywords
Criminal law - Constitutional law, Canadian charter (Criminal) - Criminal law - Constitutional law - Charter of Rights - Right to not be arbitrarily detained - Right to be secure against unreasonable search or seizure - Reasonable and probable grounds for arrest - Non-existent offence - Whether the police officer’s mistake of law rendered the appellant’s arrest unlawful and therefore arbitrary under s. 9 of the Charter - If so, whether the subsequent searches of the appellant were authorized by law under s. 8 of the Charter - If the searches were not authorized by law, whether the evidence should be excluded under s. 24(2) of the Charter - Charter of Rights and Freedoms, ss. 8, 9, 24(2).
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).