Supreme Court will hear 22 appeals between January and March: 14 criminal and eight civil
The Supreme Court of Canada is gearing up to begin its winter session of hearings -- 22 appeals – as the court building remains closed to counsel, parties and the public, and hearings continue to be held remotely.
A year ago the court amended its rules to allow for more electronic filings, and the court has reported no backlog of cases, almost three years into COVID-19 pandemic restrictions.
January’s docket of hearings comprises five civil cases, while eight appeals – seven criminal and one civil -- will be heard in February, and nine will be considered in March: another seven criminal, and two civil.
The winter session line-up will include a question of public interest standing from British Columbia, and of unreasonable delay in hearing a high-profile money-laundering case from Quebec that resulted in convictions; SOCAN’s proposed tariffs under the Copyright Act on the transmission of a musical work over the Internet that results in a download of that work; and the attorney general of Quebec’s appeal against the sentencing provisions of Alexandre Bissonnette, who was convicted on six counts of first-degree murder in the Quebec City mosque shooting if January 2017.
Appeals in civil cases
On Jan. 12 and 13 the court will hear an appeal in Attorney General of British Columbia v. Council of Canadians with Disabilities, concerning the public interest standing of the Council in challenging the constitutionality of provisions of B.C. mental health legislation, after two plaintiffs withdrew from the litigation. British Columbia’s attorney general asked for summary judgement dismissing the Council’s action; this was granted by the application judge, but the B.C. appellate court set aside the summary judgement and remitted the matter of public understanding for reconsideration. The last public interest standing decision rendered by the Supreme Court was in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society in 2012.
The court will hear a copyright case from the Federal Court of Appeal, Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al., on Jan. 18. The appellant SOCAN has proposed tariffs on the transmission of a recorded work over the Internet that results in a download of that work. The court will be asked whether a new provision in the amended Copyright Act of 2012 -- the new “making available” right -- created a new act or activity that could attract royalties, which if so would render the court's first decision on the matter, in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, irrelevant.
The last appeal to be heard in January will be in Peace River Hydro Partners, et al. v. Petrowest Corporation, et al., a bankruptcy and insolvency case in which Petrowest’s receiver, Ernst & Young, commenced an action against Peace River Hydro Partners, et al., claiming amounts owed pursuant to agreements containing arbitration clauses. Peace River Hydro Partners applied under s. 15 of the Arbitration Act, R.S.B.C. 1996, c. 55, to stay the action in favour of arbitrations; the motions judge dismissed the application and the Court of Appeal dismissed an appeal. The decision is expected to have a broad impact given the numbers of receivers involved in cases in which there are arbitration agreements.
On Feb. 16 the court will hear the land expropriation case Annapolis Group Inc. v. Halifax Regional Municipality, in which the Annapolis Group Inc. seeks to develop lands that it owns that lie within the boundary of Halifax Regional Municipality. Council of Halifax Regional Municipality declined to commence a planning process and to amend a by-law, both of which are required to permit development of the lands, and Annapolis Group claims the municipality encourages members of the public to use the lands as a public park. Its action seeks damages for alleged de facto expropriation, abuse of public office and unjust enrichment. A motion judge dismissed the municipality’s motion for summary judgment dismissing the claim of de facto expropriation, but the appellate court allowed an appeal and dismissed the claim. The Supreme Court will consider whether the test for de facto expropriation should be revisited.
Appeals in criminal cases
The court will hear a slate of criminal cases in February and March, the first of which is a challenge to the constitutionality of sections of the Criminal Code that require a sex offender to register and report for life under the Sex Offender Information Registration after being convicted of more than one designated offence. In Eugene Ndhlovu v. R., to be heard by leave on Feb. 8, the appellant had pled guilty to two charges of sexual assault, namely sexual touching, against two complainants during a party, and was considered by the sentencing judge to be at low risk of reoffending. He was sentenced to six months of imprisonment and three years of probation. The judge also declared ss. 490.012 and 490.013(2.1) of the Criminal Code unconstitutional, but a majority of the appellate court allowed the appeal, holding that the sentencing judge erred in finding that the appellant had established a deprivation of his right to life, liberty or security of the person under s. 7 of the Charter.
On Feb. 10 the court will hear the appeal in R. v. Mélanie Ste-Marie, et al., in which the four respondents were charged in 2009 with conspiracy to launder proceeds of crime, laundering proceeds of crime, and commission of an offence for a criminal organization, namely the Hell’s Angels; they were found guilty in 2016, the same year the court released its ruling in R. v. Jordan, though the criminal acts and trial predated that decision. In the Court of Quebec the respondents moved for a stay of proceedings for unreasonable delay, but this was declined even though the court found that s. 11(b) of the Charter, concerning the right to trial with a reasonable time, had been infringed. The court will be asked to consider the delays in the case, and whether the stay was warranted.
In the companion cases James Andrew Beaver v. R. and Brian John Lambert v. R., the co-accused are convicted of manslaughter in the death of their landlord, with whom they lived. Both men had confessed to police. At trial they sought a stay of proceedings at trial, or alternatively, an exclusion of the evidence that derived from the alleged violations of their rights under ss. 7, 8, 9 and 10(b) of the Charter. They also alleged that the detective who arrested them at the police station did not have reasonable and probable grounds to do so. The Crown agreed that the appellants’ Charter rights were breached when they were initially detained under a non-existent law, but argued that the arrest at the station constituted a “fresh start” which insulated the appellants’ confessions from the previous breaches. In dismissing the appellants’ applications, the trial judge agreed the arrests constituted a “fresh start” and that the appellants’ subsequent confessions had not been tainted by the breaches. The Court of Appeal dismissed the appellants’ appeals.
On March 22 the court will hear appeals in another pair of companion cases, Jesse Dallas Hills v. R. and R. v. Ocean William Storm Hilbach, et al. Both cases concern the constitutionality of minimum sentences in firearms offences.
The next day the court will hear arguments in Queen in Right of Canada v. Cheyenne Sharma. The respondent was a 20-year-old Indigenous woman and mother who pled guilty to importing cocaine. In asking for a conditional sentence, she challenged the constitutional validity of the two-year mandatory minimum sentence under the Controlled Drugs and Substances Act, and of sections of the Criminal Code that make conditional sentences unavailable in certain situations. She appealed her sentence of 18 months, and a majority of the Ontario Court of Appeal allowed it. They found that sections 742.1(c) and 742.1(e)(ii) infringe ss. 7 and 15(1) of the Charter, and could not be justified under s. 1.
On March 24, the court will hear arguments in the high-profile sentencing case of Attorney General of Quebec, et al. v. Alexandre Bissonnette. Bissonnette was convicted of murdering six people in the Great Mosque of Quebec in 2017 and attempted murder of six others. Before the sentencing judge, he challenged the constitutional validity of s. 745.51 of the Criminal Code, a provision under which, in the event of multiple murders, a judge may order parole ineligibility periods, to be served consecutively, of 25 years for each murder. The sentencing judge agreed the section infringes ss. 12 and 7 of the Charter, and that the limits on the protected rights had not been shown to be justified in a free and democratic society. He found the appropriate remedy would be to read in a new wording that would allow a court to impose consecutive periods of less than 25 years, and the Quebec Court of Appeal agreed, ordering a total period of ineligibility for parole of 25 years.
Similar incidents of multiple public murders in recent years include those of Justin Bourque, who received 75 years in prison without parole in 2014 for killing three Mounties in Moncton, N.B., and Alek Minassian, convicted of killing 10 people in a sidewalk van attack in Toronto in April 2018.
