Canada's Court: Oral Arguments from the SCC

• 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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• Episode 1: R. v. John Howard Society

  When an inmate in a provincial correctional facility in Saskatchewan is charged with a disciplinary offence, the governing legislation requires the institutional authorities to determine, on a balance of probabilities, that the offence occurred in order to establish guilt. The John Howard Society of Saskatchewan asserts that employing this standard of proof violates s. 7 of the Charter. It submits that proof beyond a reasonable doubt is necessary to withstand constitutional scrutiny. The Saskatchewan Court of Appeal disagreed. The Supreme Court of Canada granted leave to appeal to determine whether and to what extent the presumption of innocence operates as a principle of fundamental justice in non-criminal settings. The Crown appealed, and the Nova Scotia Court of Appeal agreed with the Crown that the trial judge erred in finding that the evidence of threats and violence towards the complainant was “past discreditable conduct.” However, the Court of Appeal held that the error could not have impacted the trial judge’s findings because a finding of exploitation or attempted exploitation rested on the evidence of the complainant, which was ultimately not accepted at trial. The appeal was dismissed. The dissenting judge however, held that had the trial judge not made such a grave evidentiary error, the verdict may very well have not been the same. She emphasized that the Crown was entitled to rely on the evidentiary presumption in S. 279.01(3) of the Criminal Code. The dissenting judge would have set aside the acquittals and ordered a new trial.

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• Episode 9: R. v. T.J.F.

  The accused was alleged to have committed human trafficking and related offences between 2006-2011. At trial, the trial judge did not accept the complainant’s evidence. Yet, the trial judge did find that the accused had engaged in threats, intimidation and injury towards the complainant. However, the judge found that this was “past discreditable conduct” and not evidence that could be applied to make a finding on the actus reus of the charged offences. The accused was acquitted.The Crown appealed, and the Nova Scotia Court of Appeal agreed with the Crown that the trial judge erred in finding that the evidence of threats and violence towards the complainant was “past discreditable conduct.” However, the Court of Appeal held that the error could not have impacted the trial judge’s findings because a finding of exploitation or attempted exploitation rested on the evidence of the complainant, which was ultimately not accepted at trial. The appeal was dismissed. The dissenting judge however, held that had the trial judge not made such a grave evidentiary error, the verdict may very well have not been the same. She emphasized that the Crown was entitled to rely on the evidentiary presumption in S. 279.01(3) of the Criminal Code. The dissenting judge would have set aside the acquittals and ordered a new trial.

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• Episode 8: R. v. Campbell

  Mr. Campbell was convicted of trafficking, and heroine and Fentanyl, and possessing those drugs for the purpose of trafficking them, contrary to the Controlled Drugs and Substances Act. At trial, Mr. Campbell argued that his rights under Section 8 of The Charter had been violated because he had privacy interests in text messages that he was sending a local dealer. When police arrested that local dealer, incoming text messages were visible on the lock screen that suggested the sender was selling a quantity of drugs to the local dealer. Police impersonated the local dealer and responded to the messages, directing the sender where to attend. Mr. Campbell arrived in accordance with the police instructions for the fictious transaction. He was arrested and 14.33 grams of heroine mixed with fentanyl was found after a search incident to arrest. The trial judge dismissed the Charter application, citing that Mr. Campbell had no reasonable expectation of privacy in the text messages, and that there were exigent circumstances present for police to act because the texts clearly indicated Fentanyl was to be trafficked. The Court of Appeal agreed that the trafficking of Fentanyl is of such grave public concern that it constituted exigent circumstances, but found that Mr. Campbell did in fact have a reasonable expectation of privacy in the lock screen texts. However, given the police had exigent circumstances, there was no finding that his Section 8 rights were breached and accordingly, his appeal was dismissed by the Court of Appeal.

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