New Year, New Law: Cases to Look Out for in 2018

Suter, while driving and arguing with his spouse, inadvertently pressed hard on the gas pedal thinking it was the brake. He drove his car onto a restaurant patio, killing a young child. Suter was pulled from his vehicle and beaten up by patrons. He was initially arrested for impaired driving causing bodily harm. By all accounts, he was sober at the time.

At the police station, Suter spoke to a lawyer and was advised not to provide a breath sample. He followed the advice. As it turns out, refusing to provide a breath sample with the knowledge that your driving just caused death is a criminal offence under s. 255(3.2) of the Criminal Code.

At trial, Suter pleaded guilty to this offence and was given a relatively lenient sentence of four months in jail and a five-year driving prohibition. The Crown appealed.

While on bail, Mr. Suter was kidnapped by vigilantes and had his thumb cut off.

The Court of Appeal reversed and imposed a harsher sentence of twenty-six months’ imprisonment.

The two main issues revolve around when and how the following factors can be considered as mitigating factors in sentencing, and therefore militate in favour of a more lenient sentence:

Mistake of law (mistakenly believing your actions to be lawful): The Court of Appeal rejected this as a mitigating factor in this case, asserting that a person must have an honest belief in the legality of the act. Suter’s defence argued that misunderstandings (i.e. something short of certainty) about legal advice have the potential to mitigate as long as the detainee subjectively believed in the legality of his or her action.

Vigilante justice: The Court of Appeal did not think this should be a mitigating factor. Suter’s defence argued that judges can consider collateral consequences in order to ensure that the sentence is proportionate. The Crown responded with a “floodgates” argument, raising concerns about the potential encouragement of vigilantism.

Mr. Groia is an experienced securities litigation counsel. He defended the accused in the case R. v. Felderhold, a high-profile insider-training prosecution, and his client was acquitted.

During trial, Mr. Groia made unfounded allegations of prosecutorial misconduct by the Ontario Securities Commission (OSC) prosecutors. In response, the OSC applied for judicial review, claiming Mr. Groia had engaged in uncivil conduct in violation of the Law Society’s Rules of Professional Conduct, and that the trial judge, by failing to control this conduct, lost jurisdiction. This application was dismissed.

After trial, LSUC initiated disciplinary proceedings against Mr. Groia alleging professional misconduct (despite the fact that neither the OSC nor the trial judge had complained to LSUC).

The Hearing Panel imposed a penalty of two months’ suspension. The decision was appealed three times, with limited success.

When does being a “zealous advocate” cross the line into professional misconduct? Various tests for answering this question were proposed by the parties and interveners.

Defence counsel proposed the following test: If criminal defence counsel have an honestly held good faith belief in submissions made in court to a presiding judge— and if the judge receives these submissions without complaint and employs none of the many tools available to sanction counsel—a law society should defer to the judge’s conduct of that trial.

LSUC argued for a test that would require allegations made by one lawyer against another to have a reasonable basis, otherwise they would constitute professional misconduct. McLachlin CJ raised concerns during the hearing that this would effectively ask LSUC to act as trial judge.

According to the Toronto Star, “Legal observers say it could be one of the most important Supreme Court rulings for defence lawyers in recent memory.”

Mr. Comeau, a New Brunswick resident, was caught driving home from Quebec with fourteen cases of beer and three bottles of liquor. He bought the alcohol at a cheaper price than he would have paid at home. He was stopped and charged under the province’s Liquor Control Act for exceeding the limit on alcoholic beverages that could be brought into New Brunswick from another province. He was fined under $300 and decided to fight the ticket in court.

Mr. Comeau argued that the provincial law was unenforceable as it was inconsistent with s. 121 of the Constitution Act 1867, which states that all “Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall … be admitted free into each of the other Provinces.”

The Provincial Court of New Brunswick agreed with Mr. Comeau and declared the law unconstitutional.

The Court of Appeal denied leave to appeal.

The New Brunswick Government appealed to the SCC.

This decision could drastically alter Canada’s current commercial framework. Most provinces currently set limits on the amount of alcohol a person can bring back from another province for personal consumption.

If fully accepted by the SCC, the lower court’s ruling could lead to unrestricted interprovincial trade in all goods.

Wineries, breweries, and cannabis companies tend to support Comeau’s position, while farmers and governments tend to object.

The provinces argued that the Constitution does not prohibit non-tariff barriers to interprovincial trade. This narrow reading is consistent with how s. 121 has been interpreted since 1921. It remains to be seen whether the SCC will overrule this long-standing precedent.

In 2012, legislative amendments were made by Parliament that had the potential to affect Mikisew Cree First Nation’s treaty rights. Mikisew sought judicial review, alleging that the federal government had a duty to consult Mikisew before enacting laws that could affect their treaty rights.

The Federal Court ruled that the Crown was indeed under a duty to consult Mikisew when the bills were introduced in Parliament.

The Federal Court of Appeal reversed, expressing concern that importing the the duty to consult into the legislative process offended the doctrine of the separation of powers and the principle of parliamentary privilege. Mikisew appealed.

The Crown’s duty to consult with Indigenous groups, the subject of two important SCC decisions released in 2017, typically arises in the context of decisions made by regulatory bodies. This case seeks recognition that the duty to consult is present not only when laws are applied, but also when laws are being made.

In other words, this decision could mark an important step towards reconciliation at all levels of government.

Mr. and Mrs. Froom hosted a party for their son’s nineteenth birthday. Wardak, eighteen years old at the time, attended the party. The Frooms did not serve alcohol but knew that there would be drinking at the party. Mr. Froom noticed that Wardak appeared to be drunk and became concerned. Mr. Froom went upstairs for a brief time, during which Wardak left and walked home. Wardak then got into his car, drove over a fire hydrant, and hit a tree. As a result of the accident, Wardak became a quadriplegic.

Wardak sued Mr. and Mrs. Froom, who responded with a motion to summarily dismiss the claim on the basis that there was no genuine issue for trial. The motion was denied, which means that the issue will go to trial.

The Frooms relied on Childs to support the contention that social hosts are not liable for injuries suffered by guests after leaving their property. However, the SCC in Childs arguably left the door open to the possibility that a social host may owe a duty of care to a guest, but found no such duty on the facts of that case.

This decision presents an opportunity for a court to explicitly recognize the category of social host liability.

Saretzky, twenty-four years old, was convicted by a jury for three counts of first-degree murder and for committing an indignity to a toddler’s body. The facts of the case were gruesome and disturbing, to say the least.

He was sentenced to life in prison with no possibility of parole for seventy-five years (three consecutive twenty-five-year parole ineligibility periods), meaning that he will be nearing his one hundredth birthday before release is possible.

Saretzky is appealing both the conviction and sentence before the Alberta Court of Appeal, and commentators suspect this case will make its way to the SCC.

This new sentencing option brings Canada’s sentencing regime closer in alignment with the U.S. regime. The judge sentencing Saretzky reportedly remarked that there is “next to no chance he will ever be free. This chapter is closed.” One can’t help but notice a similar sentiment present in the comment (“I’ve just signed your death warrant”) recently made by the U.S. judge sentencing Larry Nassar to up to 175 years in prison.

Gladue was found dead in the bathtub of a hotel occupied by Barton. She died from blood loss resulting from a tear in her vaginal wall. Barton admitted to causing the death, but claimed that it was an accident occurring in the course of consensual sexual activity.

A jury found Barton not guilty of either murder or manslaughter. The Crown appealed the acquittals.

The Alberta Court of Appeal ordered a new first degree murder trial.

This matter has been opened at the SCC, which means that parties are waiting to hear whether leave to appeal will be granted.

One of the most notable issues raised is its call for a national jury committee to reform outdated pattern jury instructions provided in cases involving sexual assault. The court points out that the instructions do not accurately convey the current legal definition of “consent” for the purposes of the mens rea for sexual assault. In particular, the jury in this case was not properly informed that consent to sexual activity does not extend to any form of sexual activity.

It is also of note that the Court of Appeal decision was co-authored by Justice Martin, who is now on the SCC.

Jarvis, a high school teacher, surreptitiously recorded videos of his female students through the use of a camera pen. The videos, primarily taken while he was conversing with students, focused on their cleavage. His actions were discovered and reported by a colleague. He was charged with the offence of voyeurism under s. 162(1) of the Criminal Code.

The trial judge acquitted him of the voyeurism charge.

The Court of Appeal upheld the acquittal.

This matter has been opened at the SCC. Given that the Crown has an appeal as of right, it will almost certainly be heard.

One hopes the SCC will provide some much-needed clarification in this area of criminal law and, in particular, provide a workable definition of “privacy” outside of the s. 8 context.

The plaintiffs in this case are refugees from Eritrea. They alleged that Nevsun, a publicly-held British Columbia corporation, engaged Eritrean state-run contractors and the Eritrean military to build a mine there. The plaintiffs say they were among those who were forced to work at the mine in inhuman conditions. The plaintiffs alleged that Nevsun was complicit in the use of forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity.

The Supreme Court of British Columbia rejected Nevsun’s motion to dismiss the action.

The British Columbia Court of Appeal rejected Nevsun’s appeal to dismiss the action, clearing the path for the case to proceed in Canadian courts. Nevsun appealed to the SCC.

If the SCC allows the case to proceed, it would be one of the first cases in Canada which advances human rights claims based directly on violations on international law.

The B.C. Civil Liberties Association and the John Howard Society of Canada brought a challenge against the federal government, arguing that the practice of “administrative segregation” (more commonly referred to as solitary confinement) is unconstitutional. There was no individual plaintiff, but the groups were accorded public interest standing.

The Supreme Court of British Columbia released a lengthy decision in which it declared that the sections of the Corrections and Conditional Release Act that allow for indefinite solitary confinement are unconstitutional (with a twelve-month suspension of the declaration of invalidity).

The provisions were held to violate s. 7 of the Charter, as well as s. 15 to the extent that they discriminate against Indigenous and mentally ill inmates.

The B.C. decision contains a detailed and illuminating history on the use of solitary confinement in North American prisons.

Shortly after the ruling, Public Safety Minister Ralph Goodale released a statement indicating that the government is reviewing all recent court judgments, and emphasizing the government’s commitment to ensuring consistency with the Charter.