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This week at the SCC

April 24 to 28, 2017
|Written By Elizabeth Raymer

The Supreme Court of Canada will hear five appeals this week, the second of its Spring session. Four deal with criminal cases —one Jordan case will see five provinces intervening in support of a more permissive view of delay — while the fifth concerns an aboriginal land claim.

April 24 – Ontario – Sciascia v. R.

Criminal law: The applicant, Joseph Sciascia, was tried simultaneously for summary conviction criminal offences and provincial offences, including under the Highway Traffic Act. On appeal, he argued that the court did not have the authority to try the offences at the same time. The summary conviction appeal court judge dismissed the appeals on the basis that the trial judge had jurisdiction in both matters, that the rules of procedure in both trials would essentially have been the same, and that Sciascia was not prejudiced by any differences in the applicable rules of evidence. The Court of Appeal found that it was an error for the joint trial to have occurred, but dismissed the appeal on the basis that the jurisdictional error could be cured by s. 686(1)(b)(iv) of the Criminal Code.

Read the Ontario appellate court decision here.

April 25 – Newfoundland and Labrador – Cody v. R.

Criminal law: The appellant was charged with trafficking marijuana and cocaine, possession of a prohibited weapon and breach of probation, but the charges were stayed by the trial judge on the basis of unreasonable delay. Sixty months and 21 days had elapsed between the time the charges were laid and the anticipated end of the appellant’s trial. The Crown appealed. Applying the recent decision of R. v. Jordan, a majority of the Court of Appeal allowed the appeal and remitted the matter for trial. White J.A., dissenting, would have dismissed the appeal.

Read the Newfoundland and Labrador appellate court decision here.

Related news stories:

Supreme Court of Canada to revisit trial delays ruling in upcoming session; Toronto Star

Supreme Court drug case prompts appeal for tolerance of judicial delays; The Globe and Mail

April 25 – Newfoundland and Labrador – R. v. Hunt et al.

Criminal law; Charter of Rights: The respondents were charged with fraud, conspiracy to commit fraud, falsifying books and documents, and circulating a false prospectus. It is alleged that their business sold or transferred equipment that had been used to secure loans without informing or paying the creditors and falsified documents and the books. The business’s bankruptcy cost creditors about $93 million. The application judge stayed the charges on the basis that the pre-charge delay had breached the respondents’ s. 7 Charter rights. A majority of the Court of Appeal dismissed the appeal. It found that the application judge provided ample basis for concluding that the pre-charge delay amounted to an abuse of process, and that while the judge did not use the three-step approach mandated by R. v. Babos, he applied the necessary elements of that test. Hoegg J.A. would have allowed the appeal.

Read the Newfoundland and Labrador appellate court decision here.

Related news story:

Delay in Hickman Equipment fraud investigation 'egregious' violation of rights; CBC News

April 26 – Federal – Williams Lake Indian Band v. R.

Aboriginal law: Williams Lake Indian Band filed a specific claim against Canada with the Specific Claims Tribunal. The claim involves two lots totalling nearly 2,000 acres, and alleges that B.C. failed to meet its legal obligation to prevent settlers from pre-empting lands on these two lots and that Canada failed to meet its legal obligations to create reserves for the Band once B.C. entered Confederation in 1871. The Court of Appeal concluded that Canada did not breach any post-Confederation legal obligation to Williams Lake, and was not liable for any breaches of pre-Confederation legal obligations by B.C.

Read the Federal Court of Appeal decision here.

Related legal briefs:

Canada v. Williams Lake Indian Band, 2016 Fca 63, Federal Court Of Appeal (Gauthier, Ryer And Near Jj.A.); Borden Ladner Gervais

Supreme Court of Canada 2016 Year in Review; Supreme Advocacy LLP

April 28  – Saskatchewan – George v. R.

Criminal law: The appellant, a Saskatchewan mother, had sexual intercourse with the 14-year-old complainant, who was a friend of her son. At trial, she was acquitted of sexual interference and sexual assault because the trial judge found that the sexual activity had been consensual, that the appellant had honestly believed the complainant was legally able to consent, and that the Crown had not proven that the appellant failed to take all reasonable steps to ascertain the complainant’s age. The Crown appealed, arguing that the trial judge erred in his consideration and application of s. 150.1(4) of the Criminal Code, which states that it is not a defence for an accused to say they believed a complainant was 16 years of age or older when the sexual acts occurred. The Court of Appeal allowed the appeal and ordered a new trial. Jackson J.A. would have dismissed the appeal on the basis of lack of jurisdiction, and also found that even if the trial judge had erred in law the error would not have had a material bearing on the verdict.

Read the Saskatchewan appellate court decision here.

Related news stories:

New trial order for Sask. mom accused of having sex with kids’ underage friend; Regina Leader-Post

RCMP application leads to sex assault charge on Sask. mother; AM 650 CKOM


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