The Top 10: The Most Important Supreme Court of Canada Decisions of 2016

Posted by  on January 4, 2017
The Top 10: The Most Important Supreme Court of Canada Decisions of 2016

R. v. Anthony-Cook, 2016 SCC 43 – Plea Bargains

A judge is not bound by joint submissions made by the Crown and defence. Nonetheless, in order to create more certainty in the process, judges will only intervene where a proposed sentence would bring the administration of justice into disrepute, and in turn be contrary to the public interest. Here the accused punched the deceased twice in the head and neck area, causing the deceased to fall backwards and fracture his skull on the pavement. Though the accused initially pled not guilty to manslaughter, after a joint submission that the accused be sentenced to 18 months of incarceration, the accused pled guilty. Nevertheless, the trial judge rejected the joint submission, and imposed a sentence of a term of imprisonment of two years less a day, and probation for three years. The Supreme Court held that the trial judge erred in rejecting the joint submission, and ordered that the sentence be lessened so that it conforms to the joint submission. Affirming that joint submissions should only be tampered with where the sentence is markedly unfit is important, as the accused relies heavily on joint submissions when entering their plea. Foregoing one’s right to trial is a grave concession, and ignoring that fact by rejecting a joint submission would run contrary to the public interest.

R. v. Jordan, 2016 SCC 27 – New Framework for 11(b)

This was a landmark case that reformulated the framework that is used to assess whether an unreasonable delay in proceedings has occurred, contrary to section 11(b) of the Charter of Rights and Freedoms. Presumptive ceilings were set in which the accused must be brought to trial – 18 months in provincial court and 30 months in superior court. Once the ceiling is exceeded, the Crown must justify the delay by showing that exceptional circumstances that lie beyond their control existed, such as the complexity of the case, specific events (for example, the death of a key witness), etc. In cases where the delay was below the presumptive ceiling, the defence must demonstrate that: 1) it made sustained efforts to accelerate the proceedings 2) the case took significantly longer than it reasonably should have. Where an unreasonable delay has occurred, a stay of proceedings will result, which halts further legal process. This case is extremely important because it encourages all parties in the criminal justice system to resolve issues as quickly as possible and cooperate so that section 11(b)’s objectives are achieved.

R. v. Vassell, 2016 SCC 26 – Delay

The Crown is entitled to prosecute all co-accused jointly, however they must ensure that their decision does not undermine an accused’s section 11(b) Charter right to be tried within a reasonable time. In this case, the accused was charged with possession of cocaine for the purpose of trafficking along with seven other individuals. The Crown chose to prosecute all of the accused jointly. Despite the fact that the accused made clear efforts to expedite the whole process, there was a delay of three years between the date of the accused’s arrest and the trial. In addition, the Crown asked for two adjournments of trial, which made the delay unreasonable. This case highlights that proactive steps must be made by the Crown to justify any delay in proceedings.

R. v. K.R.J., 2016 SCC 31 – Effect of Retrospective Amendments

Section 11(i) of the Charter of Rights and Freedoms states that if an accused is found guilty of an offence for which the punishment has been changed from the commission of the offence to sentencing, the accused is entitled to the lesser punishment. In this case, the accused was convicted for incest and the creation of child pornography. Between the commission of these offences and the sentence, the Criminal Code of Canada was amended, which now prohibits anyone convicted of sexual offences against minors from having any contact with young people and accessing the Internet. The accused was sentenced according to these new modifications, however he appealed stating that the retrospective application of the provisions infringed his section 11(i) rights. The Court held that the sentence was justified because it was not meant to punish the accused, but rather to protect the public. This case demonstrates that the retrospective use of amendments may be permitted, even if they appear to infringe on an accused’s Charter rights.

R. v. Villaroman, 2016 SCC 33 – Circumstantial Evidence

Jury instructions made by the presiding judge are crucial in helping the jury understand how to interpret the evidence presented during trial. There is no specific form that a judge is required to use when delivering jury instructions. The judge need only ensure that the jury understands, in one way or another, that: 1) they may rely on direct or circumstantial evidence in reaching their verdict; 2) when a witness recounts what they personally heard or saw, it is direct evidence; 3) when a witness requires the jury to draw particular inferences in order to reach a specific conclusion, they are referring to circumstantial evidence. For instance, if someone is wearing a raincoat and carrying a wet umbrella, you might infer that that it was raining outside. This would be considered circumstantial evidence. This case clarified what considerations must be made in the assessment of circumstantial evidence.

R. v. Lloyd, 2016 SCC 13 – Mandatory Minimums

Subsection 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act (CDSA) requires that a mandatory minimum punishment of one year be imposed on a person who has previously been convicted for and served a term of imprisonment for a designated substance offence within the past 10 years. In this case, not only did the offender have a lengthy criminal record regarding drug offences, but he also committed another drug related offence while on probation. He was subsequently charged with three counts of possession of a controlled substance for the purpose of trafficking. Nonetheless, the trial judge ruled that s. 5(3)(a)(i)(D) of the CDSA infringed section 12 of the Charter of Rights and Freedoms which prohibits cruel and unusual punishment. Therefore, despite these aggravating facts, the offender was sentenced to one-year global imprisonment, where he would serve three one-year terms concurrently, instead of serving three years of imprisonment. The Supreme Court upheld the trial judge’s decision, affirming that s. 5(3)(a)(i)(D) of the CDSA violated s.12 of the Charter. This case is important because it calls into question the use of mandatory minimum sentences, as they have the potential of subjecting people to cruel and unusual punishment.

R. v. Safarzadeh-Markhali, 2016 SCC 14 – Pre-Sentence Custody

In 2009, Parliament revised the regime regarding enhanced credit for pre-sentence custody. One of these amendments took away the discretion of the judge to give any enhanced credit to offenders for pre-sentence custody if they were denied bail as a result of their prior criminal record. The Court held that this variation in the law violates the right to liberty guaranteed under section 7 of the Charter of Rights and Freedoms. Denial of enhanced credit for pre-sentence custody for offenders who were previously denied bail primarily for the previous criminal record does not enhance public safety and security. This case is important because it helps ensure that an offender detained in pre-sentence custody does not spend more time in incarceration than similar offenders released on bail.

R. v. Saeed, 2016 SCC 24 – Search Incident to Arrest

A penile swab is not considered a significant intrusion on the privacy interests of the accused. It consists of taking a DNA sample from the accused’s genital area. In the investigation of sexual assault, the purpose of the DNA sample is not to retain the DNA of the accused, but rather to discover whether the complainant’s DNA is present. As a result, the police are permitted to collect a penile swab incident to arrest. This process does not infringe an individual’s section 8 right under the Charter of Rights and Freedoms, which guarantees against unreasonable search and seizure. Allowing the police to utilize this powerful investigative technique is important because it assists in preserving crucial evidence and in turn prosecuting sexual offences, which is in the public interest.

R. v. D.L.W., 2016 SCC 22 – Bestiality

The accused put peanut butter on the complainant’s vagina and had a dog lick it off while he videotaped it. The issue before the Court was whether this constituted as bestiality contrary to the Criminal Code of Canada. The Court held that an essential element of the offence of bestiality is penetration. Due to the fact that no penetration occurred in this case, bestiality was not applicable. The Crown in this case urged the Court to expand the definition of bestiality in order to include sexual touching. Since there are other offences in the Criminal Code that already deal with this type of conduct, which the accused in this matter was also convicted for, it was unnecessary to broaden the meaning of bestiality. This case is important because it highlights that the Courts are wary to interpret offences in a manner that goes beyond what Parliament intended.

R. v. Borowiec, 2016 SCC 11 – Infanticide

After a newborn infant was found crying in a dumpster, the accused admitted that not only did she leave it there, but also that she gave birth to two other children in previous years, which she also left in a dumpster. The accused was convicted of two counts of infanticide. Infanticide occurs where a female person, through a wilful act or omission, causes the death of her newborn child, because she had not fully recovered from the effects of childbirth and as a result, her mind was disturbed. The Crown appealed the convictions, arguing that her bizarre actions constituted as second-degree murder because there was no evidence of mental disorder. On the other hand, the Court held that having a “disturbed mind” does not require the accused to have a mental disorder. The case is important because it clarifies the meaning of “disturbed mind” in relation to infanticide. Only the establishment of a link between lack of recovery from childbirth and the commission of the offence is necessary.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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