Canada's Court: Oral Arguments from the SCC

• Episode 6: R. v. Stuart Michael George Sabiston

  During a search incident to arrest, Mr. Sabiston told police that he had a firearm in his backpack. The officers subsequently seized a loaded prohibited firearm. The Crown ultimately stayed the charges from Mr. Sabiston’s initial arrest and proceeded to trial on the firearms offences only.The trial judge concluded that the arrest and subsequent search were unlawful, resulting in ss. 8 and 9 Charter violations. However, on the s. 24(2) analysis, she found that the officers would have had a legal basis to detain Mr. Sabiston for investigative purposes, and that the firearm would have been discoverable during a search incident to such detention. The discoverability of the firearm mitigated the seriousness of the breaches. The firearm was admitted into evidence and Mr. Sabiston was convicted.A majority of the Court of Appeal for Saskatchewan held that the trial judge erred in concluding that there was a reasonable suspicion that would justify an investigative detention, which is a question of law reviewable on a standard of correctness. This error undermined the trial judge’s s. 24(2) analysis. Upon a fresh s. 24(2) analysis, the majority excluded the firearm from evidence and substituted an acquittal. In dissent, Tholl J.A. would have dismissed the appeal. He held that there was no error in the trial judge’s conclusions with respect to a reasonable suspicion for investigative detention.The Crown appealed to the Supreme Court of Canada as of right.

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• Episode 5: R. c. Varennes (French)

  En 2015, l’appelant est accusé du meurtre au deuxième degré de sa conjointe. Avant son procès, une juge de la Cour supérieure du Québec accueille sa requête pour que son procès se déroule devant juge seul, suivant le par. 473(1) du Code criminel, en dépit de l’absence de consentement de l’intimé poursuivant. La juge est d’avis que la décision du poursuivant de consentir à un procès devant juge seul n’est pas au cœur de son pouvoir discrétionnaire, mais qu’il s’agit plutôt d’une décision stratégique, soumise au pouvoir de la cour de contrôler sa procédure. En tenant compte des particularités du cas d’espèce, la juge est d’avis que l’accusé s’est déchargé de son fardeau de démontrer que la décision du poursuivant est déraisonnable ou inéquitable dans les circonstances. Au terme d’un procès sans jury, l’accusé est acquitté de meurtre au deuxième degré, mais déclaré coupable d’homicide involontaire coupable.La Cour d’appel accueille l’appel de l’intimé poursuivant et ordonne la tenue d’un nouveau procès sur l’accusation de meurtre au deuxième degré devant un jury. La cour est d’avis que la juge de première instance a erré en appliquant la norme de la décision déraisonnable afin de réviser le refus de consentement du poursuivant alors que l’accusé avait à prouver que ce refus constituait un abus de procédure. La cour conclut que l’accusé échoue à faire cette démonstration et que le jugement contesté est donc vicié par une erreur de droit qui a eu pour effet d’accorder au tribunal une compétence qu’il n’avait pas. Le procès de l’accusé est donc nul.

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• Episode 4: R. v. Stevenson

  Years after a restaurant was robbed by two masked assailants, an unsavoury witness, or rather, a witness that required a Vetrovec caution at trial, came forward to police and identified the appellant as one of the masked robbers. Until then, the case had remained unsolved for years. The trial judge convicted the appellant, relying almost solely on the identification of the appellant by the unsavoury witness. Because the robbery was captured on video surveillance, the trial judge reasoned that there were points of corroboration between the video and the witness testimony, even though both assailants were completely masked. The Court of Appeal agreed with the trial judge, and found that because the trial judge dutifully reasoned why the Vetrovec concerns did not outweigh the weight of the identification evidence, the conviction was sound. The dissenting judge disagreed however, and opined that appellant intervention was required due to the error in law committed by the trial judge when considering the inherent dangers in the unsavoury witnesses’ evidence. The dissenting judge would have ordered a new trial.

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• Episode 3: R. v. Jennifer Pan

  Hello, my name is Monica Bharadwaj and I am a criminal defence lawyer practicing in downtown Toronto. This is the case of R. v. Jennifer Pan and all. In this infamous case, Jennifer Pan is alleged to have masterminded a plan for her parents to be killed, employing the assistance of her ex-boyfriend and his cohorts to carry out the attack. In her initial police statements, she described a home invasion by assailants whom she did not know. After a lengthy investigation and further statements by Ms. Pan, she was ultimately charged for her role. At trial, Ms. Pan and her co-accused were convicted by a jury of the first-degree murder of her mother, and the attempted murder of her father who survived the attack and who testified at trial. Ms. Pan and her co-accused appealed their convictions. The Court of Appeal remitted the first-degree murder count back for a new trial for all co-accused, citing that the failure to provide the jury with the option to convict on second degree murder or manslaughter, for the death of Ms. Pan’s mother, was an error that deserved a new trial. The Court of Appeal upheld the conviction for the attempted murder of her father. The Crown appealed to Supreme Court, arguing that the conviction for the 1st degree murder of Ms. Pan’s mother should also stand. Ms. Pan has cross-appealed, asking the Supreme Court to consider this legal conundrum: by sending one count back to trial and upholding another, what happens if the appellate court, on its own decision, creates the possibility of an inconsistent verdict? The Crown argues that it is implausible that Ms. Pan could have the specific intent to kill her father, as required for a conviction of Attempted Murder, whilst not having the specific intent to kill her mother, because, as the Crown argues, both her parents were equal targets of the attack. Countering this argument, the defence points out that The Court of Appeal was unanimous in its decision to remit the 1st degree murder charge back to the lower court for a new trial and made its decision on sound law. However, in recognizing the inconsistency in upholding the attempted murder conviction, in its cross-appeal the defence has asked the Supreme Court to intervene and to create a new test to prevent inconsistent verdicts provoked by appellate decisions under s. 686(1)(a) of The Criminal Code, ultimately arguing for a new trial on all counts.

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• Episode 2: R. v. Bharwani

  This case is about the Taylor test for fitness to stand trial and the separate test for not criminally responsible by reason of mental disorder.Facts: after several years of deteriorating mental health, the appellant moved into a basement apartment with other tenants. Five days later, the appellant murdered one of the other tenants. The appellant told the police, surrendered himself, and explained how he carried out the murder.In May 2016, a jury found the appellant unfit to stand trial and he was sent to an in-patient treatment facility to see if he could become fit. At a second hearing in August 2016, after spending over three months in hospital, a second jury reversed the first, finding the appellant fit to stand trial.A jury convicted the appellant of murder. He appealed to the Court of Appeal for Ontario. The Court of Appeal dismissed the appeal. The Supreme Court of Canada granted leave to appeal on two issues. First, whether the Taylor test requires that the accused person can make rational decisions about the conduct of their defence. Second, whether the not criminally responsible defence applies when the accused person has the general capacity to know that society would regard their actions as morally wrong, but due to their mental disorder does not have the specific capacity to apply that knowledge to their actions.

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