Canada's Court: Oral Arguments from the SCC

Dayton Kelly was driving at night on Highway 86 in October 2021 when his car struck a horse-drawn buggy entering the highway from a sideroad. He was travelling well above the 80 km/hr limit. Both occupants of the buggy died. Blood samples later showed that the amount of THC in his blood was above the legal limit, and he was convicted of the basic offence of driving with an illegal amount of THC.
The trial judge acquitted Kelly of the two counts of causing death while driving with THC because the parties agreed there was no evidence that the amount of THC in his blood itself caused the collision. The Court of Appeal for Ontario held that this was a legal error. It ruled that the Criminal Code does not require the Crown to prove a separate causal link between the amount of THC in the driver’s blood and the deaths. The Crown need only prove the underlying offence and ordinary legal causation, meaning that Kelly’s driving was a significant contributing cause of death. A new trial was ordered.

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.

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.

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.

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.