This week at the SCC

The Supreme Court of Canada will hear five appeals this week, of which four are criminal cases. The first is an “honour killing” that resulted in India requesting the extradition of the young victim’s mother and uncle from Canada. Two Charter of Rights (criminal) appeals are companion cases concerning expectation of privacy in digital communications; and First Nations and environmental groups are appealing in Yukon’s Peel Watershed case.

March 20 – British Columbia – Attorney General of Canada on behalf of Republic of India v. Badesha

Charter of Rights (criminal): The respondents are the uncle and mother, respectively, of the victim. They are alleged to have planned a long-distance “honour killing” in India from Canada because the victim had married a rickshaw driver, whom the respondents considered unsuitable. The respondents are alleged to have hired hitmen who tracked the couple down in the state of Punjab, killed the victim and severely beat the victim’s husband. Indian authorities charged several Indian nationals connected to the murder, three of whom have been convicted, as well as the respondents.

India sought the respondents’ extradition for prosecution on the offence of conspiracy to commit murder. The respondents, who require medical care in custody, placed before the Minister the record of human rights violations in India’s prison system. The Minister issued a surrender order conditional on receipt of formal assurances from India, including assurances regarding the death penalty, fair trial and the respondents’ health and safety in Indian custody.

Read the British Columbia appellate court’s decisions here.

Related news stories:
Supreme Court to hear 'honour killing' extradition case; CBC News

Supreme Court will hear extradition case for two B.C. people charged in India; CTV

March 21 – Newfoundland and Labrador – R. v. S.B.

Criminal law: The respondent was acquitted of several counts of assault, including with a weapon, against the complainant, who was then his girlfriend and later his wife, and of one count of assault against the complainant’s daughter. Before the trial, the respondent applied pursuant to s. 276 of the Criminal Code to cross-examine the complainant on her prior sexual activity. The trial judge allowed the application in part. The Crown appealed the acquittal on the basis that the trial judge erred in allowing the application in part and in refusing to permit the Crown to lead evidence to rebut the allegations of recent fabrication that arose during the cross-examination. The majority of the Court of Appeal held that the trial judge erred in admitting certain evidence in relation to the complainant’s prior sexual activity and in excluding evidence related to recent fabrication, but that the verdict should not be set aside.

Read the Newfoundland and Labrador appellate court’s decision here.

March 22 – Yukon – First Nation of Nacho Nyak Dun v. Yukon

Aboriginal law: The Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin First Nations have traditional territory in the Peel Watershed, which covers an area representing 14 per cent of the Yukon. Terms of an agreement between First Nations and the territorial and federal governments established a process for the development of land use plans in various regions, including the Peel Watershed. That process began in 2004 and led to the creation of a commission’s recommended plan in late 2009. The process broke down in 2012 when Yukon changed the plan over the objections of the First Nations, and the Nacho Nyak Dun, Tr’ondëk Hwëch’in and others commenced an action against Yukon.

The trial judge held that Yukon had breached the final agreements when it changed the land use plan for the Peel Watershed, quashed Yukon’s final land use plan, and ordered the process be remitted to the point in time at which Yukon came to engage in final consultation with the First Nations. The Court of Appeal upheld the trial judge’s order quashing the government plan, but ordered that the matter be remitted to the point at which Yukon had received the commission’s recommended plan.
Read the Yukon appellate court decision here.

Related news story:
Council of Yukon First Nations backs groups applying to Supreme Court over Peel dispute; CBC News

Related law firm briefs:
The Peel Watershed Appeal: Back to Square One; Fasken Martineau DuMoulin LLP
The First Nation of Nacho Nyak Dun v. Yukon 2015 YKCA 18 – Case Summary; Mandell Pinder LLP

March 23 – Ontario – Marakah v. R.

Charter of Rights (criminal): The appellant was convicted of several firearms offences. Before trial, he challenged the search and seizure of his accomplice’s cellphone to which he had sent text messages. The application judge concluded that the appellant could not challenge the search of that phone because he had no reasonable expectation of privacy in respect of the text messages, finding that the expectation ends once the text message reaches its intended destination. Ontario’s Court of Appeal dismissed the appeal with one judge dissenting.

Read the Ontario appellate court decision here.

Related news stories:
Sent text messages not private: ruling; Law Times

Ontario Court of Appeal rules that text conversations are not private; Mobile Syrup

Cases highlight legal debate over texting privacy rights; Law Times

March 23 – Ontario – Jones v. R.

Charter of Rights (criminal): During a police investigation in Ottawa into the possession and trafficking of firearms, police obtained a production order pursuant for records and text messages from a cellphone number associated with Jafari Waldron, and obtained historical text messaging information from Telus. In an exchange via cellphone about the potential sale of a handgun, one of the phones was found to be associated with Waldron and one allegedly used by the appellant. Both phones were listed under other names. The appellant was convicted for firearms and drug trafficking.

Read the Ontario appellate court decision here.

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