Canada's Court: Oral Arguments from the SCC

Criminal Lawyers' Association
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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. 1d ago

    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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. Jan 28

    J.W. v. His Majesty the King

    The appellant, an Indigenous man with significant cognitive difficulties, repeatedly sexually assaulted a worker at the group home where he resided. He remained in custody pending trial, including a period of detention in a psychiatric facility while temporarily unfit to stand trial. After resiling from three agreements to plead guilty, the appellant did so the fourth time. From charge to conviction, nearly four years elapsed. The sentencing judge imposed a nine-year custodial term. This term was lengthier than the one requested by the appellant, in part because his cognitive difficulties increase the amount of time required for rehabilitative programming. The sentencing judge considered the appellant’s repeated abandonment of agreements to plead guilty to be wrongful conduct and disallowed enhanced pre-sentence custodial credit for part of the appellant’s detention. The sentencing judge also relied on the relatively favourable conditions of detention in the psychiatric facility as a basis to deny enhanced credit. The Court of Appeal allowed an appeal in part, due to an error in calculating the number of days the appellant spent in custody, but otherwise dismissed the appeal. Mr. J.W. obtained leave to appeal his sentence to the Supreme Court of Canada.

  7. Jan 22

    Buddy Ray Underwood v. His Majesty the King

    After judge alone trial, the appellant, Buddy Ray Underwood, was convicted of robbery, kidnapping, unlawful confinement and murder. The trial judge acquitted the appellant of first degree murder but entered a conviction for the included offence of second degree murder instead. The Crown appealed the acquittal. The Court of Appeal unanimously allowed the Crown’s appeal, quashed the acquittal on first degree murder and substituted a conviction for first degree murder. First, the court agreed with the Crown that the trial judge erred in law in his analysis of constructive first degree murder by narrowing the causation analysis to focus exclusively on the direct medical cause of death. Second, the court concluded that the trial judge erred in law by misapprehending the time frame for assessing planning as well as the meaning of “planned” more generally.  Mr. Underwood appealed to the Supreme Court of Canada as of right.

  8. Jan 14

    R.A. v. His Majesty the King

    The central issue in this case is whether or not the appellant committed an assault in 1978, under s. 244 of the Criminal Code as it then was. R.A. had confessed to police that when he was babysitting the complainant, who was 5 years old at the time, he was caught masturbating by her as she stood in the doorway of the bathroom. He asked the complainant if she wanted to lick his penis by telling the complainant it was ice cream and she did so for a mere moment. After this brief encounter, R.A. told police he asked the complainant to leave and to not tell anyone— he then threw up in the toilet realizing what he had done. He was charged with committing an indecent assault on the complainant, contrary to s. 149 of the Criminal Code that was in force at that time.   The provincial court judge acquitted the accused on the basis that an assault, under then s. 244 of the Criminal Code, had not been made out because, as required by the section, there had been no direct, intentional application of force to the complainant and no attempt or threat by an act or gesture to apply force to the complainant. The British Columbia Court of Appeal unanimously set aside the acquittal, and found that any contact between a child and an adult that is made in a circumstance of a sexual nature satisfies the requirements for a finding of guilt. The matter was sent back to the provincial court for sentencing. The central issue that remains for the appellant R.A. is whether his admitted contact with the complainant meets the definition of s. 244.  At that time, s. 244 read: 244. A person commits an assault when (a) without the consent of another person or with consent, where it is obtained by fraud, he applies force intentionally to the person of the other, directly or indirectly; (b) he attempts or threatens, by an act or gesture, to apply force to the person of the other, if he has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose; …

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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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