Your update on seminal Supreme Court cases
Summer tends to have a muting effect on courts, as the Supreme Court closes for the month of August. Crime, of course, abounds. But Crown counsel, defence lawyers, and judges alike postpone hearings and book their vacation time. However, this year the Supreme Court appeared busier than ever (the clerks certainly were). It handed down a series of criminal law decisions on topics ranging from automatism, constructive murder, right to counsel, and horizontal stare decisis. Here is a round-up of a few of the cases we found the most precedential.
APRIL:
The issue in R v J.D. was whether s. 669.2(3) of the Criminal Code (the Code) requires that trial judges inquire into whether an accused’s consent to file evidence on a new trial as a transcript is voluntary, informed, and unequivocal. Under this provision, when a new trial commences before the judge alone and there was no adjudication or verdict rendered, the new judge must commence trial as if no evidence had been taken. In this case, when the original trial judge fell ill, both counsel agreed to file the testimony of one witness as a transcript.
The Court held that s. 669.2(3) concerns jurisdiction, not evidence, and accordingly that the application of the regular rules of evidence persists. The trial judge was right to accept the testimony as a transcript, and absent reason to engage in further inquiry, was not required to do so. Nevertheless, the trial judge has residual discretion to inquire on their own initiative where trial fairness may be undermined.
Other cases this month:
R v Stairs, 2022 SCC 11: The search of a home upon arrest does not violate s. 8.
R v Tim, 2022 SCC 12: The police erred in searching the accused’s vehicle when they saw a prescription drug, but the evidence was admitted under s. 24(2) of the Canadian Charter of Rights and Freedoms (the Charter).
R v Dussault, 2022 SCC 16: The police violated s. 10(b) (the right to counsel) of the Charter by not allowing a lawyer to see the accused.
MAY:
Mr. Brown was charged with breaking and entering, mischief to property, and aggravated assault following the consumption of alcohol and magic mushrooms. Relying on a defence of automatism, Brown was acquitted at trial. Although s. 33.1 of the Code denies the defence of automatism during instances of self-induced extreme intoxication, the trial judge held that this provision violates the principles of fundamental justice and the presumption of innocence, and that these violations are not justified under s. 1 of the Charter. In a unanimous decision, the Supreme Court of Canada held that s. 33.1 is unconstitutional.
The Court held that s. 745.51 of the Code, which permits the sentencing of an offender to serve consecutive parole ineligibility periods, is unconstitutional. A unanimous court found that the provision violates s. 12 (cruel or unusual treatment or punishment) of the Charter and cannot be saved under s. 1 because a parole ineligibility period that exceeds an offender’s life expectancy is inconsistent with human dignity. Therefore, in cases involving multiple first-degree murders, the parole ineligibility period is 25 years, retroactive to when the provision was enacted in 2011.
Other cases this month:
R v J.F., 2022 SCC 17: When the delay for a trial is reasonable, a delay for a retrial is considered separately.
R v Sullivan, 2022 SCC 19: In this companion case to R v Brown, the court clarifies horizontal stare decisis.
JUNE:
In R v J.J., the Court had the opportunity to consider the constitutionality of ss. 278.92 to 278.94 of the Code—provisions that have been contested among Crown counsel and members of the defence bar since their enactment in 2018. These provisions establish additional procedural barriers for the introduction of evidence relating to a complainant’s prior sexual activity or history when the records are in the accused’s possession. The Court’s majority rejected the two accused’s contention that the provisions violate their ss. 7 (life, liberty, and security of the person) and 11(d) (presumption of innocence) Charter rights. In doing so, they explicitly recognized the need to remove barriers deterring victims of sexual offences from speaking out.
Other cases this month:
R v Goforth, 2022 SCC 25: Court restores second-degree murder convictions for the death of a foster child.
JULY:
The accused, a 19-year-old Indigenous man, was suspected of murder. In March, a team of armed officers executed a search warrant on his home. In April, upon interrogation, the accused confessed to killing the victim.
The Court held that the accused was detained during the police search in March. The police failed to inform the accused about his right to counsel upon detention and thereby violated his s. 10(b) Charter rights. The Court held that the accused had a right to re-consult his lawyer during the interrogation in April because the accused’s circumstances fell within the third R v Sinclair, 2010 SCC 35, category—reason to question the detainee’s understanding of his rights. Therefore, his s. 10(b) rights were violated, and the evidence obtained must be excluded.
This appeal addresses whether condom use is relevant to the presence or absence of consent under s. 273.1(1) of the Code. The appellant was charged with sexual assault after he had sexual intercourse with the complainant without a condom, notwithstanding that she had expressly conditioned her consent on condom use.
The SCC held that when consent to intercourse is conditioned on condom use, condom use forms part of the “sexual activity in question” and that there is no subjective consent to the physical act of intercourse without a condom under s. 273.1(1). This conclusion best accords with Parliament’s intention to protect the complainant’s autonomy as well as the reality that intercourse with and without a condom are two distinct physical acts.
Other cases this month:
R v Sundman, 2022 SCC 31: Accused is guilty of constructive murder even though the victim was shot after escaping his kidnappers.
