Canada's Court: Oral Arguments from the SCC

Dylan Saddleback was convicted of second-degree murder in a judge alone trial. What was at issue on appeal was the trial judge’s use of statements made by the deceased during a phone call to a 3rd party, who testified at trial. The duration of that same phone call was important because the trial judge found that this is when the killing took place, as the 3rd party witness heard sounds on the phone consistent with the deceased, Joshua Dennehy, being beaten. The Alberta Court of Appeal found that the trial judge erred in law by using the deceased’s statement for a hearsay purpose, or in other words—for the truth of its contents— instead of the correct approach which should have been to solely rely on the statement as having been made. The majority of the Court of Appeal ordered a new trial. The dissenting justice disagreed, and would have dismissed the appeal on the basis that the trial judge used the deceased’s statement correctly in finding the accused guilty.

S.A.’s trial for the charges of assault and sexual assault, was scheduled to commence on April 17, 2023. He elected to be tried by judge and jury. On the trial date, a judge was unavailable to preside, so the trial did not commence. A subsequent trial date was scheduled for February 12, 2024. The defence brought an 11(b) application. The 11(b) application judge stayed the proceedings, and held that even though the delay was below the presumptive 30-month ceiling set out in Jordan, the delay was unreasonable. The judge reasoned that unfilled judicial vacancies was an important factor that should be taken into account when assessing the delay. The Crown appealed.  The Ontario Court of Appeal agreed with the Crown and found that the application judge made an error in concluding that delay from laying the charge to the anticipated end of the trial, approximately 26.5 months, was unreasonable delay. The Court of Appeal held that although the application judge stated the law correctly, the application of the lawwas in error. The Court of Appeal emphasized that when assessing delay the analysis must include a holistic approach, and cited the following factors for granting the Crown’s appeal, and setting aside the stay of proceedings:1. The net delay in this case was well below the Jordan ceiling;2. Both the Crown and Defence had both acted with haste and diligence to move the case forward;3. There was an increase in complex cases in the Toronto region;4. The Toronto region was still experiencing the backlog of cases as a result of thepandemic;5. The appellant was not in custody and was out on bail;6. Nothing novel in this case warranted a sense of urgency (such as a young complainant, or this matter being a re-trial); and7. Had the first trial date had gone ahead, this two-week jury trial would have been completed in less than 17 months, which even falls below the ceiling for a trial proceeding only in the Ontario Court of Justice.

The appellant, an Indigenous man with significant cognitive difficulties, repeatedly sexually assaulted a worker at the group home where he resided. He remained in custody pending trial, including a period of detention in a psychiatric facility while temporarily unfit to stand trial. After resiling from three agreements to plead guilty, the appellant did so the fourth time. From charge to conviction, nearly four years elapsed.The sentencing judge imposed a nine-year custodial term. This term was lengthier than the one requested by the appellant, in part because his cognitive difficulties increase the amount of time required for rehabilitative programming. The sentencing judge considered the appellant’s repeated abandonment of agreements to plead guilty to be wrongful conduct and disallowed enhanced pre-sentence custodial credit for part of the appellant’s detention. The sentencing judge also relied on the relatively favourable conditions of detention in the psychiatric facility as a basis to deny enhanced credit.The Court of Appeal allowed an appeal in part, due to an error in calculating the number of days the appellant spent in custody, but otherwise dismissed the appeal.Mr. J.W. obtained leave to appeal his sentence to the Supreme Court of Canada.

After judge alone trial, the appellant, Buddy Ray Underwood, was convicted of robbery, kidnapping, unlawful confinement and murder. The trial judge acquitted the appellant of first degree murder but entered a conviction for the included offence of second degree murder instead. The Crown appealed the acquittal.The Court of Appeal unanimously allowed the Crown’s appeal, quashed the acquittal on first degree murder and substituted a conviction for first degree murder. First, the court agreed with the Crown that the trial judge erred in law in his analysis of constructive first degree murder by narrowing the causation analysis to focus exclusively on the direct medical cause of death. Second, the court concluded that the trial judge erred in law by misapprehending the time frame for assessing planning as well as the meaning of “planned” more generally. Mr. Underwood appealed to the Supreme Court of Canada as of right.

The central issue in this case is whether or not the appellant committed an assault in 1978, under s. 244 of the Criminal Code as it then was. R.A. had confessed to police that when he was babysitting the complainant, who was 5 years old at the time, he was caught masturbating by her as she stood in the doorway of the bathroom. He asked the complainant if she wanted to lick his penis by telling the complainant it was ice cream and she did so for a mere moment. After this brief encounter, R.A. told police he asked the complainant to leave and to not tell anyone— he then threw up in the toilet realizing what he had done. He was charged with committing an indecent assault on the complainant, contrary to s. 149 of the Criminal Code that was in force at that time.  The provincial court judge acquitted the accused on the basis that an assault, under then s. 244 of the Criminal Code, had not been made out because, as required by the section, there had been no direct, intentional application of force to the complainant and no attempt or threat by an act or gesture to apply force to the complainant.The British Columbia Court of Appeal unanimously set aside the acquittal, and found that any contact between a child and an adult that is made in a circumstance of a sexual nature satisfies the requirements for a finding of guilt. The matter was sent back to the provincial court for sentencing. The central issue that remains for the appellant R.A. is whether his admitted contact with the complainant meets the definition of s. 244. At that time, s. 244 read:244. A person commits an assault when(a) without the consent of another person or with consent, where it is obtained by fraud, he applies force intentionally to the person of the other, directly or indirectly;(b) he attempts or threatens, by an act or gesture, to apply force to the person of the other, if he has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose; …