This is a two-part episode for two appeals that were jointly heard by the Court, A.S. vs Her Majesty the Queen and Her Majesty the Queen v. J.J.

In A.S. vs Her Majesty the Queen, Shane Reddick was charged with sexual assault as a result of events that allegedly took place at a party in Toronto. At the party, the Complainant, A.S, was captured on two video recordings engaging in sexual activities. At trial, Mr. Reddick intended to cross-examine A.S on the contents of the two videos, but to do so he had to comply with s. 276(2) and ss. 278.92 through 278.94. Mr. Reddick brought an application to find that those sections violated his ss. 7 and 11(d) Charter rights.

As it relates to the procedural sections that govern the disclosure of records to the Complainant, Justice Akhtar found that although the purpose of these sections was legitimate the implementation of the amendments trampled upon the principles of the Charter. Justice Akhtar opined that the procedural provision of s. 278.92 and disclosure of the accused’s application and affidavit to the Complainant was overbroad and infringed the accused’s s. 7 and 11(d) Charter rights.

As it relates to the participation of the Complainant under s. 276, Justice Akhtar found that the effect of the amendments to s. 276 is to elevate the complainant from the role of a witness in the Crown's case to that of a party who is entitled to advance disclosure of records pertaining to an accused's line of questioning as well as their defence. He noted that this is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused's constitutional protections by providing their defence to a witness prior to trial.

In Her Majesty the Queen v. J.J., The respondent, J.J., was charged with sexual assault. His lawyer is in possession of communications between J.J. and the complainant. His lawyer wants to use those communications on cross-examination of the complainant; however, he says those communications meet the definition of a record in s. 278.1 of the Criminal Code and as a result he must apply to have the communications admitted as relevant to an issue at trial pursuant to a Criminal Code amendment. The application must be made on seven days’ notice to the Crown, unless the trial judge permits a shorter period. =

Duncan J. held that the seven-day notice requirement in s. 278.93(4) of the Criminal Code violated s. 7 of the Charter and could not be saved under s. 1. Duncan J. “read down” the provision to: (1) remove the seven day notice requirement in s. 278.93(4) only as it applies to s. 278.92 applications; and (2) provide that s. 278.92 applications should be made “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice”. J.J. was acquitted of sexual assault by a jury. The Crown appeals the constitutional ruling but not the jury’s verdict.

Mr. Strathdee was involved in a group assault at a downtown Edmonton apartment with at least four other men. Several victims were stabbed – one fatally so. He was charged with second degree murder, manslaughter, one count of break and enter, and three counts of aggravated assault.

At trial, he was acquitted of second-degree murder, manslaughter, and break and enter with intent. He was convicted on all three counts for aggravated assault as a party to the offence under section 21(2) of the Criminal Code, having been involved in a group assault.

With respect to the murder charge, the trial judge found as a fact that only one person could have caused the victim’s death and that no one else applied force to him. As such, under section 21(2)(a), Mr. Strathdee could not be found liable where the cause of death could have only been inflicted by one person. In that regard, an acquittal was entered.

The Crown appealed the acquittal on the homicide charge and the appellant cross-appealed his convictions for aggravated assault.

The Court of Appeal of Alberta found that the trial judge erred in her application of the law on joint participation, ultimately allowing the Crown’s appeal. The Court held that because of the judge’s finding of a group assault, she ought to have assessed Mr. Strathdee’s liability as a joint principal, and that the Crown was not required to prove that Mr. Strathdee personally applied force to the deceased. The acquittal was set aside and the Court substituted a conviction for manslaughter. Mr. Strathdee’s cross-appeal was dismissed.

Mr. Strathdee appealed his conviction for manslaughter as of right.

At issue before the Supreme Court of Canada is whether the trial judge erred in her application of the law of joint principals.

The Respondent, Liam Reilly was convicted of six counts of robbery and firearms-related offences. Police came to believe that the Respondent was involved in two armed robberies and attended his residence to arrest him. The Respondent was subject to an unrelated probation order that required him to present himself to the door for curfew checks. When the Respondent did not present himself one of the officers entered the residence through an unlocked rear sliding door, walked to the Respondent’s bedroom, knocked on the door, and arrested him.

Officers then performed a clearing search of the residence, during which they observed evidence related to the robberies. An information to obtain was subsequently drafted, and police obtained a search warrant, based in part on the observations made during their prior entry to the residence.

Before trial the respondent brought a charter application pursuant to s. 8 alleging that the ITO was facially invalid, and the search warrant should not have been issued. He sought the fruits of the search to be excluded under s. 24(2). Following the failure of this application the Respondent invited the court to convict him of the charges as alleged.

The Respondent appealed to the Court of Appeal for British Columbia. The majority held that while the trial judge did not err in law or principle in upholding the search warrant, they erred by considering the “charter compliant conduct” of the police as mitigating the seriousness of the breach and by failing to properly weigh the Grant factors. The majority then conducted a fresh s. 24(2) analysis, and found that despite society’s strong interest in the adjudication of the case on its merits that the admission of the evidence would bring the administration of justice into disrepute.

In dissent, Justice Willock held that the majority should have deferred to the trial judge’s s. 24(2) analysis, and disagreed that the inclusion of evidence would bring the administration of justice into disrepute.

The Crown appealed to the Supreme Court of Canada as of Right.

This matter involves two cases being heard together from the Court of Appeal for Ontario, that of Mr. Sullivan and of Mr. Chan. Mr. Sullivan attempted suicide using prescription drugs and, in a psychotic state, stabbed his mother. Mr. Chan voluntarily used magic mushrooms and, in a psychotic state, fatally stabbed his father and non-fatally stabbed his father’s partner. Mr. Sullivan was convicted of aggravated assault and assault with a weapon. Mr. Chan was convicted of manslaughter and aggravated assault.

Both accused tried to raise the defence of non-mental disorder automatism at trial and were denied due to s. 33.1 of the Criminal Code. This section limited the availability of that specific defence for violent crimes when the intoxication was self-induced. Mr. Chan’s trial judge found that s. 33.1 did infringe ss. 7 and 11(d) of the Charter, but the section was saved, and thus constitutional, due to s. 1 of the Charter.

The issue before the Court of Appeal for Ontario was the constitutionality of s. 33.1 and the parameters around accessing the defence of non-mental disorder automatism. The Court ruled that s. 33.1 of the Criminal Code was unconstitutional Section 1 of the Charter could not save s. 33.1 because it sought to hold an accused accountable despite not proving the mens rea and actus reus of a codified offence. This is in direct conflict with core Charter principles

The Supreme Court of Canada granted leave to both cases.

Ms. Dingwall, Mr. Russell, and Mr. Richet, the three appellants, were convicted of aggravated assault and various firearm offences in connection to a drive-by shooting. At trial, the Crown’s case was based on circumstantial evidence. The trial judge concluded that Mr. Russell and Mr. Richet were guilty as principals or aiders or abettors for all charges. Ms. Dingwall was found guilty as an aider or abettor for the charges relating to the drive-by shooting and as a principal or aider or abettor for the charges related to the burning of a truck.

The three appellants appealed their respective convictions. The majority of the Court of Appeal for British Columbia dismissed the appeals. It held that the verdicts were not unreasonable.

In dissent, Butler J.A. disagreed with the disposition of Ms. Dingwell’s appeal related to the drive-by shooting charges. Ms. Dingwall’s participation in the offences were not the only rational inference on the evidence. The verdict was therefore unreasonable.

Ms. Dingwell appealed to the Supreme Court of Canada as of right.

The appellant was charged with offences related to the possession of a handgun, possession of fentanyl, and breach of an undertaking. He had been involved in a single-vehicle collision. An intervening police officer observed a small Ziploc bag containing a single yellow pill in his car. The officer believed the pill to be Gabapentin. The officer erroneously believed Gabapentin to be a controlled substance under the Controlled Drugs and Substances Act and placed the appellant under arrest for possession of a controlled substance. Further searches of the appellant and his vehicle yielded fentanyl and a loaded firearm.

At trial, the appellant sought exclusion of the evidence pursuant to s. 24(2) of the Charter on the basis that he had been arrested for a non-existent offence, resulting in a violation of his ss. 8 and 9 Charter rights.

The trial judge concluded that the arrest and subsequent searches were lawful, and dismissed the application.

A majority of the Court of Appeal of Alberta dismissed the appellant’s appeal. The officer had been mistaken in his belief that Gabapentin is a controlled substance, however that mistaken belief was reasonable and it did not invalidate the appellant’s arrest. As the appellant's arrest was lawful, the searches incidental to arrest were also lawful. In dissent, Veldhuis J.A. would have allowed the appeal, excluded the evidence, and entered acquittals on all counts.

At trial, the appellant was convicted of sexual assault, attempting to obstruct justice, and breach of bail conditions which prohibited him from contacting the complainant or attending at her residence, following a charge of criminal harassment. Shortly after the appellant had been charged and released in the criminal harassment file, the complainant contacted his father and asked if there was a way for her to withdraw the charges. In response, the appellant made inquries and went to the complainant’s home to tell her how to contact the Crown in order to have the charges against him dropped. While he was there, the appellant grabbed the complainant and forcibly kissed her.

The appellant appealed his conviction on a number of grounds, including that the trial judge’s reasons on the charge of attempting to obstruct justice were inadequate. A majority of the Court of Appeal of Alberta dismissed the appeal. It held that the trial judge’s inference that the appellant had applied pressure on the complainant for an improper purpose, thereby committing the offence of attempting to obstruct justice, was available on the record. In the majority’s view, the context clearly supported that inference, which is entitled to deference. Justice Slatter dissented.

The appellant appealed to the Supreme Court of Canada as of right.

A police search of Mr. Parranto on arrest and searches of his residence found fentanyl, other drugs, cash, weapons and drug paraphernalia. Mr. Parranto pleaded guilty to 8 offences including two counts of wholesale trafficking in fentanyl. On the two counts of wholesale trafficking in fentanyl, he was sentenced to 4 years and 5 years consecutive.

In six transactions, Mr. Felix sold fentanyl and cocaine to an undercover police. Mr. Felix pleaded guilty to four offences including two counts of wholesale and commercial trafficking in fentanyl. On the counts of trafficking in fentanyl, Mr. Felix was sentenced to two 7-year terms concurrent.

On appeals from the sentences, the Court of Appeal of Alberta established a starting point of 9 years for sentences for wholesale trafficking in fentanyl. It sentenced Mr. Parranto to two 7-year terms consecutive for trafficking in fentanyl and Mr. Felix to two 10-year terms concurrent for trafficking in fentanyl.

On December 22, 2016, the appellant, Mr. Mohsenipour, was charged with several offences related to his operation of a commercial sex trade, including living on the avails of prostitution between March 15 and December 5, 2014. Despite finding factual guilt on all counts, the trial judge quashed the living off the avails counts as unconstitutional, relying on Canada v. Bedford, 2013 SCC 72. On December 20, 2013, in Bedford, the Court held that the offence of living off the avails of prostitution was overbroad and could not be saved under s. 1 of the Canadian Charter of Rights and Freedoms. The Court suspended the declaration of invalidity for a period of one year.

The British Columbia Court of Appeal allowed the Crown’s appeal and ordered that convictions be entered. Since Parliament replaced the offence with a new offence that largely mirrors its predecessor in substance but carves out a number of exceptions intended to address concerns over security of the person raised in Bedford within the period of the suspension, conduct captured by the former iteration of the offence during the suspended declaration of invalidity is prosecutable. During the suspension period, the offence was constitutionally valid. The retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation: the declaration of invalidity never came into effect to render the provision a nullity ab initio.

Mr. Cowan was acquitted of armed robbery and having his face masked with intent to commit robbery. The Crown’s theories at trial were that Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or that Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found that the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory.

A majority of the Court of Appeal allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial proceeding from the footing that the question to be determined is whether Mr. Cowan is guilty of robbery, as a party, on the basis of abetting or counselling.

Justice Jackson, dissenting, would have dismissed the Crown’s appeal because the legal error, if it existed, was insufficiently material for the court to overturn the acquittal.