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This week at the SCC

|Written By Elizabeth Raymer

The Supreme Court of Canada will hear four appeals this week,

two criminal  and two civil. The latter includes a tort law case relating to the arrest of a man protesting the Six Nations occupation of Douglas Creek Estates in 2009.

March 19 – Quebec – Yared, et al. v. Karam

Family law: This case concerns whether a family residence can be declared as part of the family patrimony under the Civil Code of Quebec. The respondent, Roger Karam, and the late Taky Yared, were married in 1998 and had four children. They immigrated to Montreal from Lebanon in 2011, where a family trust was constituted and Karam was named as co-trustee along with his mother and as sole “Electeur” of the trust. In 2012 the family trust purchased a property that would serve as the family residence. Yared left the residence in 2014 and filed for divorce from Karam; she died in 2015. Her will appointed her two brothers as liquidators of her estate, which was bequeathed to her four children in equal parts. Karam demanded the will’s annulment, and the appellants served an application for a declaratory judgment to have the family residence declared as part of the family patrimony under the Civil Code of Quebec, which was denied by the Court of Appeal of Quebec.

Read the appellate court decision here.

Related law firm bulletin:

The Supreme Court will revisit freedom of willing; Spiegel Sohmer

March 20 – Ontario – R. v. R.V.

Criminal law: R.V. was charged with sexually assaulting and touching the complainant for a sexual purpose when she was under 16 years of age. The application judge dismissed R.V.’s s. 276 Criminal Code application. R.V. asked the trial judge to reconsider the application judge’s s. 276 application decision. The trial judge declined to do so and found that the application judge’s s. 276 ruling was binding on him. R.V. was convicted of sexual interference. The Court of Appeal’s held that both the application judge and the trial judge erred. In the Court of Appeal’s view, the only reasonable outcome in this case would be to allow the cross-examination that R.V. sought to conduct. The Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial.

Read the appellate court decision here.

March 21 – Ontario – Fleming v. R.

Tort law, freedom of expression: Randy Fleming was carrying a Canadian flag through Caledonia, Ontario, adjacent to lands occupied by Indigenous protesters of the Six Nations reserve. He planned to join a march and watch a Canadian flag-raising as a counter-protest to the occupation of Douglas Creek Estates. When OPP officers spotted Fleming walking alone, they approached, Fleming retreated onto the disputed lands, and occupiers reacted. A police officer arrested Fleming to prevent a breach of the peace, and he was ordered to drop his flag but refused. Fleming was overpowered, handcuffed and transported from the scene. He sued the police and claimed permanent injury. The trial judge awarded damages to Fleming; a majority of the Court of Appeal set aside the trial judgment and ordered a new trial restricted to determining whether excessive force was used during the arrest.

Read the appellate court decision here.

Related news stories:
Supreme Court to hear case exploring police use of force in Caledonia, Ont.; Global News

Court of Appeal orders new trial after deciding OPP was right to arrest protester carrying Canadian flag; The Hamilton Spectator

Christie Blatchford: The disgraceful case against a man who dared carry a Canadian flag in Caledonia; National Post

March 22 – Newfoundland and Labrador –  Snelgrove v. R.

Criminal law: Douglas Snelgrove, a Royal Newfoundland Constabulary officer, was acquitted of sexual assault. The only issue at trial was consent. The complainant testified that she could not recall if she had consented because she had been intoxicated at the time; Snelgrove testified that the sexual activity was consensual. The Crown requested that the trial judge include in her charge to the jury an instruction that a person’s consent is vitiated if the accused induced that consent by abusing a position of trust, power or authority. The trial judge refused; the Crown appealed successfully and the majority of the Court of Appeal ordered a new trial.

Read the appellate court decision here.

Related news stories:
RNC officer Doug Snelgrove going to nation's top court to stop sexual assault retrial; CBC News

Newfoundland and Labrador Supreme Court of Appeal grants Crown’s appeal of RNC officer’s acquittal; The Packet

Editor’s Note: This article has been updated to replace the hearing for Resolute FP Canada et al v. R.  with the hearing for R. v. R.V. on March 20.