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.

Devant la Cour du Québec, l’intimé, M. Sheikh, est trouvé coupable d’un chef de fraude dépassant 5 000. Selon la théorie de la poursuite, l’intimé a entrepris frauduleusement un recours judiciaire civil contre un complice allégué qui était fondé sur des prêts factices pour en réclamer le remboursement au détriment de la Fédération des producteurs acéricoles du Québec.

La Cour d’appel du Québec, pour les motifs du juge Vauclair, auxquels souscrit la juge Bich, accueille l’appel de l’intimé, casse le jugement de culpabilité et ordonne l’inscription d’un jugement d’acquittement. La majorité explique que le raisonnement de la juge d’instance est problématique. Il ne respecte pas le principe fondamental de la présomption d’innocence voulant que l’accusé n’ait rien à prouver. La majorité souligne aussi que la manière de mener l’interrogatoire du complice allégué était hautement contestable. Le juge Schrager, dissident, aurait rejeté l’appel au motif que le verdict n’est pas déraisonnable. De plus, à son avis, le témoignage du complice est pertinent et ne démontre pas une propension pour la criminalité.

At trial, the respondent, Mark Smith, was found guilty of sexually assaulting the complainant, a woman he had just met at a party. The Crown sought to admit statements made by the complainant to her friend immediately following the alleged assault as prior consistent statements to rebut a notion of recent fabrication, and the defence sought to admit them as prior inconsistent statements for the purpose of challenging the complainant’s credibility. The trial judge did not expressly rule on the admissibility of the statements, nor did she explicitly comment on whether they were consistent or inconsistent with the complainant’s testimony. Ultimately, she found the complainant to be credible and reliable and convicted the respondent.

A majority of the Court of Appeal for British Columbia allowed the respondent’s appeal and ordered a new trial on the basis that the trial judge misapprehended the evidence in failing to address inconsistencies in the witnesses’ accounts. The majority also found that the trial judge’s failure to rule on the admissibility of the complainant’s prior statements, and, if admitted, to consider whether they were consistent or inconsistent with her testimony, was a misapprehension of the evidence. Justice Dickson dissented.

The Crown appealed to the Supreme Court of Canada.

This is the first episode of Canada’s Court, the first podcast to highlight select oral hearings from The Supreme Court of Canada. In this episode, we present R. v. Ghotra, 2021 SCC 12.

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