Canada’s Court is the first podcast to highlight select oral hearings from The Supreme Court of Canada. Presented by the Criminal Lawyers’ Association and available on all major podcast platforms. Visit podcast.criminallawyers.ca for more information.
A full webcast version of the oral arguments featured in each episode can be viewed from The Supreme Court of Canada website at scc-csc.ca or obtained from the court directly.
The Supreme Court of Canada is not affiliated with this podcast and did not produce or participate in it’s creation.
R v Tim
The appellant was charged with offences related to the possession of a handgun, possession of fentanyl, and breach of an undertaking. He had been involved in a single-vehicle collision. An intervening police officer observed a small Ziploc bag containing a single yellow pill in his car. The officer believed the pill to be Gabapentin. The officer erroneously believed Gabapentin to be a controlled substance under the Controlled Drugs and Substances Act and placed the appellant under arrest for possession of a controlled substance. Further searches of the appellant and his vehicle yielded fentanyl and a loaded firearm.
At trial, the appellant sought exclusion of the evidence pursuant to s. 24(2) of the Charter on the basis that he had been arrested for a non-existent offence, resulting in a violation of his ss. 8 and 9 Charter rights.
The trial judge concluded that the arrest and subsequent searches were lawful, and dismissed the application.
A majority of the Court of Appeal of Alberta dismissed the appellant’s appeal. The officer had been mistaken in his belief that Gabapentin is a controlled substance, however that mistaken belief was reasonable and it did not invalidate the appellant’s arrest. As the appellant's arrest was lawful, the searches incidental to arrest were also lawful. In dissent, Veldhuis J.A. would have allowed the appeal, excluded the evidence, and entered acquittals on all counts.
R v Morrow
At trial, the appellant was convicted of sexual assault, attempting to obstruct justice, and breach of bail conditions which prohibited him from contacting the complainant or attending at her residence, following a charge of criminal harassment. Shortly after the appellant had been charged and released in the criminal harassment file, the complainant contacted his father and asked if there was a way for her to withdraw the charges. In response, the appellant made inquries and went to the complainant’s home to tell her how to contact the Crown in order to have the charges against him dropped. While he was there, the appellant grabbed the complainant and forcibly kissed her.
The appellant appealed his conviction on a number of grounds, including that the trial judge’s reasons on the charge of attempting to obstruct justice were inadequate. A majority of the Court of Appeal of Alberta dismissed the appeal. It held that the trial judge’s inference that the appellant had applied pressure on the complainant for an improper purpose, thereby committing the offence of attempting to obstruct justice, was available on the record. In the majority’s view, the context clearly supported that inference, which is entitled to deference. Justice Slatter dissented.
The appellant appealed to the Supreme Court of Canada as of right.
R v Parranto
A police search of Mr. Parranto on arrest and searches of his residence found fentanyl, other drugs, cash, weapons and drug paraphernalia. Mr. Parranto pleaded guilty to 8 offences including two counts of wholesale trafficking in fentanyl. On the two counts of wholesale trafficking in fentanyl, he was sentenced to 4 years and 5 years consecutive.
In six transactions, Mr. Felix sold fentanyl and cocaine to an undercover police. Mr. Felix pleaded guilty to four offences including two counts of wholesale and commercial trafficking in fentanyl. On the counts of trafficking in fentanyl, Mr. Felix was sentenced to two 7-year terms concurrent.
On appeals from the sentences, the Court of Appeal of Alberta established a starting point of 9 years for sentences for wholesale trafficking in fentanyl. It sentenced Mr. Parranto to two 7-year terms consecutive for trafficking in fentanyl and Mr. Felix to two 10-year terms concurrent for trafficking in fentanyl.
R. v. Mohsenipour
On December 22, 2016, the appellant, Mr. Mohsenipour, was charged with several offences related to his operation of a commercial sex trade, including living on the avails of prostitution between March 15 and December 5, 2014. Despite finding factual guilt on all counts, the trial judge quashed the living off the avails counts as unconstitutional, relying on Canada v. Bedford, 2013 SCC 72. On December 20, 2013, in Bedford, the Court held that the offence of living off the avails of prostitution was overbroad and could not be saved under s. 1 of the Canadian Charter of Rights and Freedoms. The Court suspended the declaration of invalidity for a period of one year.
The British Columbia Court of Appeal allowed the Crown’s appeal and ordered that convictions be entered. Since Parliament replaced the offence with a new offence that largely mirrors its predecessor in substance but carves out a number of exceptions intended to address concerns over security of the person raised in Bedford within the period of the suspension, conduct captured by the former iteration of the offence during the suspended declaration of invalidity is prosecutable. During the suspension period, the offence was constitutionally valid. The retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation: the declaration of invalidity never came into effect to render the provision a nullity ab initio.
R. v. Cowan
Mr. Cowan was acquitted of armed robbery and having his face masked with intent to commit robbery. The Crown’s theories at trial were that Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or that Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found that the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory.
A majority of the Court of Appeal allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial proceeding from the footing that the question to be determined is whether Mr. Cowan is guilty of robbery, as a party, on the basis of abetting or counselling.
Justice Jackson, dissenting, would have dismissed the Crown’s appeal because the legal error, if it existed, was insufficiently material for the court to overturn the acquittal.
R. v. Sheikh
Devant la Cour du Québec, l’intimé, M. Sheikh, est trouvé coupable d’un chef de fraude dépassant 5 000. Selon la théorie de la poursuite, l’intimé a entrepris frauduleusement un recours judiciaire civil contre un complice allégué qui était fondé sur des prêts factices pour en réclamer le remboursement au détriment de la Fédération des producteurs acéricoles du Québec.
La Cour d’appel du Québec, pour les motifs du juge Vauclair, auxquels souscrit la juge Bich, accueille l’appel de l’intimé, casse le jugement de culpabilité et ordonne l’inscription d’un jugement d’acquittement. La majorité explique que le raisonnement de la juge d’instance est problématique. Il ne respecte pas le principe fondamental de la présomption d’innocence voulant que l’accusé n’ait rien à prouver. La majorité souligne aussi que la manière de mener l’interrogatoire du complice allégué était hautement contestable. Le juge Schrager, dissident, aurait rejeté l’appel au motif que le verdict n’est pas déraisonnable. De plus, à son avis, le témoignage du complice est pertinent et ne démontre pas une propension pour la criminalité.
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Kudos to the Criminal Lawyers Association for bringing Canadians this podcast. The selected representations offer a crystal clear look at the nature of legal reasoning in Canada’s highest court. It’s fascinating from the standpoint of the practical workings of the legal system to hear both the legal teams and the justices interacting and the precise dissection of arguments in lower court decisions. I’ve listened, riveted, to both episodes. This is an excellent way to get to know better that eminence grise of Canadian civic and political life, the Supreme Court. What institution has been more vital and dynamic in Canada during the last four decades? This podcast goes a long way towards raising the profile of the legal profession, constitutional law, and the courts in this country.