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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Criminal Law

Charter of Rights and Freedoms

Right to be tried within reasonable time [s. 11(b)]

Crown appeal from stay of proceedings based on pre-charge delay dismissed.

Crown’s appeal from decision granting accused stay of proceedings based on pre-charge delay was dismissed. Crown appealed. Appeal allowed. Majority agreed substantially with dissenting reasons of appellate level.
R. v. Hunt (2017), 2017 CarswellNfld 171, 2017 CarswellNfld 172, 2017 SCC 25, 2017 CSC 25, Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellNfld 425, 2016 NLCA 61, B.G. Welsh J.A., M.H. Rowe J.A., and L.R. Hoegg J.A. (N.L. C.A.).

Criminal Law

Post-trial procedure

Release pending appeal

Bail pending appeal for person convicted of murder was not restricted by Parliament


Accused was convicted of second degree murder of his father. Appeal judge dismissed accused’s application for release pending his appeal under public interest criterion in s. 679(3)(c) of Criminal Code. Court of Appeal review panel dismissed accused’s application for review under s. 680(1) of Code and found no material error or unreasonableness in appeal judge’s decision. Accused appealed. Appeal allowed. Appeal was heard on merits despite mootness. Guidance was given on public interest criterion and on standard of review by review panel. Detaining accused on public interest criterion was unwarranted in circumstances. Appeal judge made material legal error that affected outcome, and review panel erred in failing to intervene. Aside from seriousness of offence, accused presented as ideal candidate for bail. Parliament did not restrict availability of bail pending appeal for persons convicted of murder. Appeal judge found that there were no public safety or flight risk concerns and that grounds of appeal were arguable. Appeal judge overlooked important finding made by trial judge, that accused’s crime gravitated toward offence of manslaughter, which reduced his degree of moral blameworthiness, attenuating seriousness of crime and enforceability interest. Cumulative effect of considerations favoured release. Appeal judge erred by not applying correct test of “not frivolous” in assessing strength of accused’s appeal by wanting something more than clearly arguable grounds of appeal. 

R. v. Oland (2017), 2017 CarswellNB 115, 2017 CarswellNB 116, 2017 SCC 17, 2017 CSC 17, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNB 126, 2016 CarswellNB 127, 2016 NBCA 15, J. Ernest Drapeau C.J.N.B., M.E.L. Larlee J.A., and Kathleen A. Quigg J.A. (N.B. C.A.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Police entry into accused’s residence was not justified by exigent circumstances


Officers saw handguns and drugs in plain view after being invited into apartment, and obtained search warrant. Trial judge concluded that police had grounds to obtain search warrant and since it was impracticable to obtain search warrant exigent circumstances under s. 11(7) of Controlled Drugs and Substances Act existed. Accused was convicted of possession of drugs, possession for purpose of trafficking, and unlawful possession of firearms. Accused’s appeal on ground that trial judge erred in admitting evidence was dismissed. Accused appealed to Supreme Court of Canada. Appeal allowed. Police entry into the accused’s residence not justified by exigent circumstances making it impracticable to obtain warrant. Nature of Charter-infringing state conduct was sufficiently serious to favour exclusion of evidence obtained as a result. Importance of ensuring that such conduct is not condoned by court favoured exclusion. If situation was not serious enough to arrest and apply for warrant, then not serious enough to intrude into private residence without warrant. 

R. v. Paterson (2017), 2017 CarswellBC 687, 2017 CarswellBC 688, 2017 SCC 15, 2017 CSC 15, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellBC 1256, 2015 BCCA 205, Lowry J.A., Frankel J.A., and Bennett J.A. (B.C. C.A.).

Motor Vehicles

Accident claims funds
Practice and procedure

Civil action against third parties barred by application of Automobile Insurance Act (Que.)

Availability of civil liability remedies. Victims, injured in automobile accidents, also suffered aggravated or separate injuries due to subsequent faults attributable to third parties. Civil action against third parties barred by application of public compensation scheme under Automobile Insurance Act (Que.). Compensation scheme limiting compensation exclusively to amounts paid pursuant to scheme in circumstances where sufficiently close link between bodily injury and automobile accident is established. In such cases, the scheme covers the whole of the injury and confers civil immunity on everyone in respect of those injuries. Fact that compensation was claimed and received pursuant to compensation scheme, however, not constituting waiver of any civil action.
Godbout c. Pagé (2017), 2017 CarswellQue 1646, 2017 CarswellQue 1647, 2017 SCC 18, 2017 CSC 18, McLachlin C.J.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 646, 2015 QCCA 225, (C.A. Que.)

Criminal Law

Post-trial procedure

Appeal from conviction or acquittal

Considerable deference was owed to trial judge’s assessment of evidence

40 years ago, accused sexually abused his nephews and niece, but latter did not report him to the police until 2009. Accused was charged with indecent assault and gross indecency. Trial judge found victims’ evidence to be reliable and credible and found accused’s evidence to be not reliable. Accused was convicted as charged. Accused appealed, arguing that trial judge made several errors and rendered unreasonable verdict. Majority at Court of Appeal noted that to be successful, accused had to show that verdict was not verdict that properly instructed jury, acting judicially, could reasonably have rendered or that trial judge’s reasoning process was so irrational, or so at odds with evidence, that it vitiated verdict. In present case, considerable deference was owed to trial judge’s assessment of evidence. In particular, trial judge did not err in finding that accused was not credible. Trial judge did not err by relying on testimony of victims, albeit given 40 years after fact. His findings were well explained and appeal was dismissed. Accused appealed to Supreme Court of Canada. Appeal dismissed. Appeal should be dismissed for reasons of majority of Court of Appeal.
R. c. Savard (2017), 2017 CarswellQue 2095, 2017 CarswellQue 2096, 2017 SCC 21, 2017 CSC 21, Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellQue 1699, 2016 QCCA 380, Chamberland J.C.A., Morin J.C.A., and Dutil J.C.A. (C.A. Que.).

Evidence

Examination of witnesses

Previous statements

Type of evidence placed improperly before jury was particularly pernicious

Accused was charged with several offences against complainant wife including assault, sexual assault, and assault with weapon. Before trial, accused applied to cross-examine wife on her previous sexual activity, including video of parties engaging in anal sex and texts between wife and person with whom she was having affair during marriage. Trial judge admitted cross examination on texts and video transcript. Defence counsel completed cross-examination of wife on Friday afternoon. Crown counsel advised he had no questions on re-direct and trial resumed on following Tuesday. At commencement of Tuesday hearing, Crown sought to have complainant recalled so she could testify as to what she told others to rebut defence’s suggestion of recent fabrication. Accused was acquitted of all charges. Crown’s appeal, in part on basis that trial judge erred in refusing to permit Crown to lead evidence to rebut allegation of recent fabrication that arose during cross-examination of wife, was dismissed. Crown appealed. Appeal allowed. Acquittals were set aside and new trial was ordered. Trial judge erred both in admitting certain evidence and excluding other evidence. Trial judge erred in allowing text message and video transcript to be used as they had potential of feeding first of the twin myths and that in circumstances, proper jury examination could not undo that damage. Had evidence of rebutting recent fabrication been allowed, it might have aided in rehabilitating complainant’s credibility, thereby changing jury’s view of reliability of complainant’s evidence. Type of evidence placed improperly before jury was particularly pernicious.
R. v. B. (S.) (2017), 2017 CarswellNfld 111, 2017 CarswellNfld 112, 2017 SCC 16, 2017 CSC 16, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); reversed (2016), 2016 CarswellNfld 183, 2016 NLCA 20, J.D. Green C.J.N.L., M.H. Rowe J.A., and C.W. White J.A. (N.L. C.A.).

Evidence

Opinion

Experts

Drug recognition expert’s opinion evidence was admissible without voir dire

Accused was suspected of drug impaired driving. Drug recognition expert (DRE) performed drug recognition evaluation. Accused was charged with driving while impaired by drug. At trial, Crown relied on s. 254(3.1) of Criminal Code to establish admissibility of DRE’s testimony without voir dire. Judge allowed DRE to testify as expert without voir dire, then acquitted accused. On appeal, acquittal was overturned and new trial ordered. At second trial, judge held s. 254(3.1) did not allow for automatic admissibility of DRE’s evidence and acquitted accused. Crown appealed. Judge held s. 254(3.1) rendered DRE’s opinion automatically admissible. Accused appealed. Court of Appeal held DRE’s opinion evidence was admissible without voir dire and dismissed appeal. Accused appealed. Appeal dismissed. Section 254(3.1) does not provide for automatic admissibility of DRE opinion evidence. Because s. 254(3.1) does not speak to admissibility, common law rules of evidence apply. Trial judge erred in concluding that because DRE was not expert in scientific foundation of various elements of test, none of his opinion evidence was admissible. DRE is expert for purpose of applying 12-step evaluation. Where requirements for admissibility of expert evidence at common law are met and probative value of evidence outweighs prejudicial effect, trial judge is not required to hold voir dire to determine admissibility.
R. v. Bingley (2017), 2017 CarswellOnt 2406, 2017 CarswellOnt 2407, 2017 SCC 12, 2017 CSC 12, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellOnt 8987, 2015 ONCA 439, E.A. Cronk J.A., E.E. Gillese J.A., and Grant Huscroft J.A. (Ont. C.A.).
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