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This week at the SCC

|Written By Elizabeth Raymer

The Supreme Court of Canada has a full slate of appeal hearings this week: six criminal and one civil, on appeal from the Federal Court of Appeal. Three of the criminal appeals are from sexual assault convictions, and one involves search-and-seizure and child pornography charges. The remaining two appeals are from high-profile convictions of an Alberta couple for failing to provide the necessities of life to their young son, who died of meningitis after his parents had attempted to cure him through natural treatment.

May 14 – Nova Scotia – Cain v. R.

Criminal law: The appellant was charged with sexually assault. At trial the defence introduced the contents of the complainant’s statements to the police, made on the evening of the assault, and then challenged the complainant on inconsistencies. The trial judge convicted the appellant, finding that the complainant’s relation of the central facts was consistent. The appellant appealed, arguing that the trial judge’s use of the complainant’s statements to the police infringed the rule against prior consistent statements, and that the trial judge erred in using the prior consistent statement to confirm the in-court testimony of the complainant. The majority in the Court of Appeal dismissed the appeal.

May 15 – Alberta – Collet Dawn Stephan v. R.

Criminal law: The appellant was convicted by a jury of failing to provide the necessaries of life to her son, who died of meningitis. She appealed, arguing that the trial judge’s charge to the jury was inadequate, that the trial was unfair and amounted to a miscarriage of justice, and that her rights to be tried within a reasonable period of time were breached. The majority in the Court of Appeal dismissed the appeal; a dissenting justice found the trial judge’s charge to the jury confusing, misleading and deficient in describing a key element of the offence, and that the trial judge did not properly instruct the jury on the fault element or the mens rea of the offence.

Read the appellate court decision here.

Related news stories:
Alberta Court of Appeal upholds convictions against parents in son’s meningitis death; Canadian Press

David Stephan gets jail time, Collet Stephan gets house arrest in son's meningitis death; CBC News

Pediatrician says Alberta parents of child who died from meningitis 'attentive'; Canadian Press

May 15 – Alberta – David Robert Stephan v. R.

Criminal law: Companion case to the above. The appellant was convicted by a jury of failing to provide the necessaries of life to his son, who died of meningitis.

Read the appellate court decision here.

May 16 – Federal – Mazraani v. Industrial Alliance Insurance and Financial Services

Civil law: The applicant challenged a decision of the Minister of National Revenue finding that his work as a professional agent for the respondent Industrielle Alliance, Assurance et Services Financiers Inc. was not an insurable employment within the meaning of the Employment Insurance Act, S.C. 1996 c. 23. The Tax Court of Canada found that the applicant held insurable employment and varied the Minister of National Revenue’s decision. The Federal Court of Appeal granted the appeal, finding the witnesses’ language rights had been violated during the hearing before the Tax Court of Canada.

Read the appellate court decision here.

Related case summary:
Judge favouring English over French violating official language rights; Law Times

Related law firm bulletins:
English vs French – Linguistic favoritism by Tax Court Judge: decision quashed by the FCA; Fasken Martineau DuMoulin LLP

Mazraani v. R. - TCC: Insurance agent was an employee engaged in insurable employment; Rueters LLP

May 17 – Ontario – Reeves v. R.

Canadian charter (Criminal): Sometime after the appellant had separated from his common-law wife, N, she reported that she and her sister had found multiple videos that she believed to contain child pornography on the family computer. The police seized the computer, first without a warrant and later with one, after which time they searched it and discovered child pornography on it. The appellant was charged with possessing and accessing child pornography, but succeeded on a pre-trial s. 8 Charter application to exclude the evidence obtained as a result of the search and seizure, as well as any evidence derived from a forensic examination of the computer. The appellant was acquitted, but on appeal the exclusionary order was set aside and a new trial ordered.

Read the appellate court decision here.

Related news story:
OCA rules on search and seizure; Law Times

Sudbury judge tosses evidence; Sudbury Star

Related legal bulletin:
R. v Reeves: The Impact of Joint-Residence on One’s Reasonable Expectation of Privacy; TheCourt.ca

May 18 – Alberta – Colling v. R.

Criminal law: The appellant was charged with sexually assaulting the complainant in his apartment. The only issue at trial was whether the sexual intercourse between the appellant and the complainant was consensual. The trial judge convicted the appellant of sexual assault; he appealed his conviction, arguing that the trial judge erred by improperly interfering with the cross-examination of the complainant on a central matter, by creating a reasonable apprehension of bias and an unfair trial due to his interventions, and by preventing closing argument on the defence of mistaken belief in consent. The majority in the Court of Appeal dismissed the appeal. Berger J.A., dissenting, was of the view that the trial judge’s interventions and his failure to allow closing arguments on the defence of mistaken belief in consent resulted in an unfair trial.

Read the appellate court decision here.

May 18 – Alberta – Gulliver v. R.

Criminal law: The appellant was convicted of seven criminal charges following a chain of events commencing with the assault and sexual assault of the complainant and ending in a six-hour police standoff. The appellant appealed, arguing that the trial judge failed to apply the final stage of the analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742, inappropriately drew an adverse inference based on the late disclosure of an alibi, and failed to provide sufficient reasons to explain his decision. The majority in the Court of Appeal dismissed the appeal. Berger J.A., dissenting, was of the view that the foundations of the trial judge’s reasons were inadequately or erroneously canvassed.

Read the appellate court decision here.

Related news story:
Serial abuser of women labelled dangerous offender; Edmonton Journal

Tattooed Edmonton-area Satanist declared dangerous offender; Edmonton Sun


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