Canada's Court: Oral Arguments from the SCC

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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.

  1. 5d ago

    His Majesty the King v. Bilinski

    Jordan Bilinski was acquitted by a jury of sexual assault in Alberta. The complainant, his ex-girlfriend, had invited him over for sex on the express condition that he wear a condom. The evidence was that they had three sexual encounters that evening: oral sex without a condom, vaginal intercourse with a condom followed by ejaculation on her back, and then a final act of intercourse after she again insisted on condom use and put on a new condom. The allegation was that, during that final act, Bilinski removed the condom and ejaculated in her vagina. In his police interview, he admitted she had required condom use, admitted removing it, and said he did so because “it feels better.” At trial, Bilinski did not advance honest but mistaken belief in communicated consent. The case therefore turned on the complainant’s credibility and reliability, whether she subjectively consented to sex without a condom, and what the Crown had to prove on mens rea. The trial judge told the jury the Crown had to prove, among other things, that Bilinski knew she did not consent, through actual knowledge, recklessness, or wilful blindness. The jury acquitted. The Alberta Court of Appeal unanimously found errors in the jury charge. The majority held the judge failed to distinguish properly between subjective consent for actus reus purposes and communicated consent for mens rea purposes, and failed to tell the jury that, if it found non-consent, it should have little difficulty finding mens rea. It ordered a new trial. Justice Feehan dissented on the result, concluding the errors were not shown to have materially affected the acquittal. The appeal went to the Supreme Court of Canada as of right.

  2. Oct 20

    His Majesty the King v. R.B.-C

    R.B.-C. was convicted of sexual assault. He is an Iranian citizen living in Canada on a post-graduation work permit. But his sentence was not imposed until more than 14 months after his conviction. When it finally was imposed, he received a conditional sentence of two years less a day, followed by probation. Because of the delay in sentencing, R.B.-C. sought a stay of proceedings under section 11(b) of the Charter. The application judge relied on the leading Ontario case on post-verdict delay, R. v. Charley, which sets a presumptive ceiling of five months. The judge concluded that the net delay fell below that ceiling and dismissed the application. The Court of Appeal disagreed. It held that the post-conviction delay exceeded the five-month ceiling. Rather than ordering a stay, though, it reduced the sentence to 20 months. The Supreme Court of Canada granted the Crown leave to appeal. The Court will consider both the proper framework for post-verdict delay and the appropriate remedy where that delay is found to be unreasonable.

  3. Oct 13

    His Majesty the King v. Harry Arthur Cope

    Mr. Cope plead guilty to the aggravated assault of his common law partner. He had a significant criminal record, and a significant history of mental illness. Both he and his partner are Indigenous. The sentencing judge sentenced him to 5 years in custody for the aggravated assault, and eight months of custody for breaching the release orders he was subject to at the time of the aggravated assault on his partner.  At issue on appeal was the length of the sentence. Mr. Cope appealed the length of his sentenceand the majority of The Nova Scotia Court of Appeal allowed the appeal, and varied the length of the sentence to three years of custody for the aggravated assault. The dissenting justice would have allowed the leave to appeal, but would have dismissed the appeal, reasoning that the sentence imposed by the sentencing judge was fit and appropriate.

  4. Oct 6

    His Majesty the King v. Robert Joseph DeSutter

    The respondent was charged with multiple counts of sexual offences in relation to three separate complainants, and in addition was charged with one count of simple assault. At trial, he was found guilty of the assault, but acquitted of the sexual offences. The trial judge found there was reasonable doubt on whether the acts were for a sexual purpose, and whether there was an exploitative relationship between the parties. The Crown appealed two of the sexual offence counts, arguing that the trial judge erred in excluding images found on a USB of other women, who were mostly clothed or partially clothed, in relation to a sexual fantasy involving magic acts and sawing women in half. The Crown sought to introduce this evidence as a similar fact application per Handy, while the defence argued it was bad character evidence and would result in propensity reasoning. The respondent had asked the complainants if he could use his cardboard saw to pretend to cut them in half, or place it on their abdomen to take a photo.  The majority of the Nova Scotia Court of Appeal dismissed the appeal, and found that the Crown had not succeeded in its argument, and found no error with the trial judge’s decision to properly exclude the USB evidence. The dissenting justice disagreed and held that she would have allowed the appeal and would have ordered a new trial based on the errors made in the trial judge’s assessment of the probative value and prejudicial effect as it related to the USB evidence, and that the exploitative relationship between one of the complainants was not properly assessed. She reasoned that both errors would have also materially impacted the verdicts.

  5. Sep 29

    His Majesty the King v. Robert Vrbanic, et al.

    The two respondents, jointly tried for a number of drug trafficking and related charges, argued that the delay in their case was unreasonable. While both the Crown and Defence agreed at trial that the delay was over the 18-month presumptive Jordan ceiling, the Crown sought to justify the delay by arguing that the complexity of the case necessitated the delay. The trial judge disagreed and stayed the charges. The trial judge found that the delay in the case was not justified as exceptional because of any complexity.  A majority of The Ontario Court of Appeal agreed with the trial judge and found no errors in the trial judge’s reasoning, or decision to stay the charges. Justice Roberts, dissenting, would have allowed the Crown’s appeal as a result of the miscalculation of the total net delay, and as a result of misapplying the governing principles in relation to what constituted an exceptional circumstance.

  6. Sep 22

    W.W. v. His Majesty the King

    Despite the fact that the trial judge found that the appellant sent sexually explicit material to a minor, the trial judge was left in doubt as to whether (a) the identity of the appellant was made out on the video as an element of the offence, and (b) the specific intent to commit one of the enumerated offences, reasoning that it could have been simply a case of “flirtation”. The appellant was acquitted at trial of transmitting sexually explicit material to a person under the age of 16 for the purpose of facilitating the commission of either a sexual assault or the indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose.   The Ontario Court of Appeal held that neither the identity of the accused in the video or the specific intent to commit an enumerated offence was an element of the offences required to be proven beyond a reasonable doubt to secure a conviction. The Court took specific issue with justifying inappropriate behaviour by adults as “flirtation” with a minor. The acquittal was set aside and convictions entered because the Court of Appeal held that but for those errors by the trial judge, the appellant would have been convicted at trial.

  7. Sep 15

    His Majesty the King v. Dylon Saddleback

    Dylan Saddleback was convicted of second-degree murder in a judge alone trial. What was at issue on appeal was the trial judge’s use of statements made by the deceased during a phone call to a 3rd party, who testified at trial. The duration of that same phone call was important because the trial judge found that this is when the killing took place, as the 3rd party witness heard sounds on the phone consistent with the deceased, Joshua Dennehy, being beaten.  The Alberta Court of Appeal found that the trial judge erred in law by using the deceased’s statement for a hearsay purpose, or in other words—for the truth of its contents— instead of the correct approach which should have been to solely rely on the statement as having been made. The majority of the Court of Appeal ordered a new trial. The dissenting justice disagreed, and would have dismissed the appeal on the basis that the trial judge used the deceased’s statement correctly in finding the accused guilty.

  8. Feb 5

    S.A. v. His Majesty the King

    S.A.’s trial for the charges of assault and sexual assault, was scheduled to commence on April 17, 2023. He elected to be tried by judge and jury. On the trial date, a judge was unavailable to preside, so the trial did not commence. A subsequent trial date was scheduled for February 12, 2024. The defence brought an 11(b) application. The 11(b) application judge stayed the proceedings, and held that even though the delay was below the presumptive 30-month ceiling set out in Jordan, the delay was unreasonable. The judge reasoned that unfilled judicial vacancies was an important factor that should be taken into account when assessing the delay. The Crown appealed.    The Ontario Court of Appeal agreed with the Crown and found that the application judge made an error in concluding that delay from laying the charge to the anticipated end of the trial, approximately 26.5 months, was unreasonable delay. The Court of Appeal held that although the application judge stated the law correctly, the application of the lawwas in error. The Court of Appeal emphasized that when assessing delay the analysis must include a holistic approach, and cited the following factors for granting the Crown’s appeal, and setting aside the stay of proceedings: 1. The net delay in this case was well below the Jordan ceiling; 2. Both the Crown and Defence had both acted with haste and diligence to move the case forward; 3. There was an increase in complex cases in the Toronto region; 4. The Toronto region was still experiencing the backlog of cases as a result of thepandemic; 5. The appellant was not in custody and was out on bail; 6. Nothing novel in this case warranted a sense of urgency (such as a young complainant, or this matter being a re-trial); and 7. Had the first trial date had gone ahead, this two-week jury trial would have been completed in less than 17 months, which even falls below the ceiling for a trial proceeding only in the Ontario Court of Justice.

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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.

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