New Year, New Law

Cases to look out for in 2019

CHLOE MAGEE (3L)

These days, with the perpetual barrage of political developments possessing just enough shock value and urgency to hog the public’s attention, Canadian legal decisions often get lost in the fray. It would not even be a stretch to suggest that, on the whole, President Donald Trump’s tweets received more airtime in 2018 than decisions from the Supreme Court of Canada.

That being said, we would be remiss to allow our attention to be diverted too long from our top court. This year promises to be revelatory for the direction of certain controversial areas of Canadian law. In the remaining months of 2019, the Supreme Court is set to release several decisions related to hot-button issues dominating today’s political debates, including myths about sexual assault complainants, cases

on immigration detention, and allegations of police overreach.

Recent buzz in the legal profession has largely been centered around upcoming rulings in cases such as Nevsun Resources and the administrative law “trilogy,” and these cases have been exhaustively summarized elsewhere. I decided instead to focus on several other cases that seem equally worthy of

our scrutiny, as they may soon shed light on how our law will handle various weighty subjects going forward.

Note: According to the Supreme Court’s website, decisions are rendered on average 6 months after the hearing of the appeal. This means that some of cases below may be released in the coming weeks.

Who? When? What? Why should we care?

R v Le, heard on Oct. 12, 2018

In May 2012, Mr. Le, who was 20 years old at the time, was sitting with four other young men in their friend’s backyard in downtown Toronto (the “Dixon backyard”). Three police officers were in the neighbourhood looking for two suspects, and were informed by security guards that the Dixon backyard was a “problem area.” The officers located the backyard and, without asking permission, entered through an open fence with no gate.

While asking the men for ID, one of the officers perceived Le to be acting nervous and “blading” his body (which, in police terms, means positioning oneself so as to hide an object on one’s hip). When Le was asked what was in his bag, he fled the scene. The officers chased, tackled, and arrested Le, finding him in possession of a loaded handgun, 13 grams of cocaine, and cash.

At trial, Le argued that the police violated his s. 8 Charter right to be free from unreasonable search (by unlawfully entering the backyard) and his s. 9 right to be free from arbitrary detention (by questioning him and his friends in the backyard). He argued that, as a result of these breaches, the evidence should be excluded under s. 24 of the Charter.

The trial judge rejected all of Le’s arguments. The majority of the Ontario Court of Appeal dismissed the appeal.

Reasonable expectation of privacy This case is noteworthy because, in addition to being the subject of this year’s Callaghan Memorial Moot, it once again provides the SCC an opportunity to clarify the ever-elusive and controversial meaning of “privacy” under s. 8. More specifically, this case asks the Court to consider whether an invited guest has a “reasonable expectation of privacy” in a friend’s home or backyard during the course of their visit.

Both the trial judge and the majority on appeal answered this question in the negative. Lauwers JA, however, penned a forceful dissent. He rebuffed the proposition that, on the one hand, hosts have full Charter protections in their home while their guests, on the other hand, are considered to have left theirs at home.

Lauwers JA urged that the majority’s logic “be rejected as utterly inconsistent with ordinary life in our free and democratic society.”

Finally, this case raises further questions about the exercise of police authority. Lauwers JA disagreed with the majority that the initial police entry into the backyard was lawful, expressing doubt “that the police would have brazenly entered a private backyard and demanded to know what its occupants were up to in a more affluent and less racialized community.”

Minister of Public Safety and Emergency Preparedness v Tusif UR Rehman Chhina, heard on Nov. 14, 2018

Mr. Chhina, a Pakistani citizen, has been held in Canadian immigration detention since November 17, 2015. After losing his immigration status in Canada, the Canadian Border Services Agency (“CBSA”) took steps towards returning him to Pakistan, but Pakistan refused to issue travel documents.

Chhina applied for the writ of habeas corpus on the basis that his detention was lengthy and indeterminate.

The writ of habeas corpus, which originated as a common law remedy and is now entrenched in s. 10(c) of the Charter, provides the right to be released from detention if it is unlawful. While a person detained by the state may always challenge their detention under habeas corpus, the court may decline to hear the application under two exceptions. One of these exceptions is where Parliament has instituted a “complete, comprehensive and expert statutory scheme” at least as broad and advantageous as habeas corpus.

The chambers judge declined to hear Chhina’s application on the basis that the above exception to the availability of habeas corpus applied. In other words, the chambers judge held that the Immigration and Refugee Protection Act (“IRPA”) institutes a “complete, comprehensive and expert statutory scheme.”

The Alberta Court of Appeal allowed the appeal and sent Chhina’s application back to the Court of Queen’s Bench. The court concluded that the habeas corpus exception does not apply in certain circumstances where the detention is lengthy and of uncertain duration so as to violate ss. 7 and 9 of the Charter. In reaching this result, the court reasoned that habeas corpus differs in several important respects from the IRPA review process, rendering it a broader and more advantageous remedy to applicants.

Immigration detention Public criticism of immigration detention in Canada, as well as the legal system that enables it, is rising as the harsh realities of the practice continue to be exposed. The system has been explicitly condemned both internationally and domestically. For example, in Scotland v Canada (Attorney General), 2017 ONSC 4850 at para 2, Justice Morgan described one detainee’s situation as Kafkaesque: “no one knows why he is detained.”

The Canadian government has acknowledged the problem and made some preliminary progress towards reducing the number of those incarcerated. Yet, Canada remains one of the only Western countries that has yet to impose a statutory or judicial time limit on immigration detention. It is thus common for immigration detainees in Canada to spend months or years in detention, despite having committed no crime. In July 2018, the CBC reported that the “CBSA detains an average of 7,215 individuals a year who each spend an average of 19.5 days behind bars” and that at least 439 people were incarcerated for over 90 days during 2016-17.

The Chhina case emerges as especially significant against this background, as it may reveal whether and to what extent the SCC views itself as playing a role in improving the situation for immigration detainees.

If the Court sides with the Alberta Court of Appeal, the absence of a statutory limit on immigration detention may be tempered slightly by enabling some detainees to challenge the validity of their continuous and lengthy detention using habeas corpus.

R v Barton, heard on Oct. 11, 2018

Ms. Gladue was found dead in the bathtub of a hotel occupied by Mr. Barton. She died from blood loss resulting from a tear in her vaginal wall. Barton admitted to causing the death, but claimed that it was an accident occurring in the course of consensual sexual activity.

A jury found Barton not guilty of either murder or manslaughter. The Crown appealed the acquittals.

The Alberta Court of Appeal ordered a new first degree murder trial.

R v Goldfinch, heard on Jan. 16, 2018

The complainant and the respondent had lived together for several months, and continued sexual relations after the relationship ended. On the night in question, the complainant testified that Mr. Goldfinch repeatedly hit her and engaged in sexual relations without her consent. Goldfinch argued that the complainant had consented or, alternatively, that he had an honest but mistaken belief in consent.

Goldfinch was acquitted at trial. The trial judge allowed the defence to adduce evidence of the complainant’s sexual history in order to provide context and to convey the general nature and duration of the relationship between the parties.

A majority of the Alberta Court of Appeal allowed the appeal and ordered a new trial.

R v RV, heard on Mar. 20, 2019

R.V. and his cousin, the complainant, were camping with extended family in July 2013. The complainant testified that R.V. lured her into a campground washroom where he sexually assaulted her. Later that year, the complainant found out that she was pregnant. R.V. was charged with sexual assault under the Criminal Code.

By the time of the trial, the pregnancy had been terminated and confirmation of paternity rendered impossible. The Crown intended to rely on proof of the complainant’s pregnancy as evidence of the sexual assault. R.V. unsuccessfully brought an application under s. 276 of the Criminal Code to cross-examine the complainant on her sexual activity to disprove the inference advanced by the Crown.

The Ontario Court of Appeal allowed the appeal, holding that the decision to prohibit R.V. from cross-examining the complainant on her sexual history in this case was in error.

Evidence of complainant’s prior sexual history Each of these three decisions was appealed on the basis that s. 276 of the Criminal Code was improperly applied by the lower courts. Section 276, often referred to as the “rape shield provision,” prohibits the admission of evidence of a complainant’s prior sexual history unless several requirements are met. Since the first “rape shield” provision was first introduced to the Code as recently as 1982, and has been amended since, the scope of the provision remains unsettled.

In Barton, the court brought clarity to several previously ambiguous aspects of s. 276. The court affirmed that the provision applies to that case even though the offence charged is murder, not sexual assault. The court further clarified that s. 276 places obligations on the Crown, the defence and trial judges, and that the Crown’s failure to object to sexual history evidence does not make it admissible. The court also held that referring to the complainant as a “prostitute”—as the Crown did in this case—constitutes “sexual conduct evidence” that is inadmissible under s. 276.

Importantly, the court in Barton rejected the defence’s argument that the evidence should be admitted because it is relevant to the “narrative.” In Goldfinch, the court relied heavily on Barton to reach a similar conclusion. If the SCC affirms both of these decisions, future defendants will face a higher hurdle in attempting to adduce evidence of the complainant’s sexual history.

RV, on the other hand, emphasized that s. 276 requires a careful balancing of competing objectives: protecting complainants and allowing accused persons to make full answer and defence.

The SCC’s decisions to grant leave to appeal in all three of these cases strongly suggests a desire to elucidate the scope of s. 276.

Kosoian v Société de Transport de Montréal, scheduled to be heard on Apr. 16, 2019

In 2009, Ms. Kosoian was rummaging through her backpack on a Laval subway station escalator when an officer told her to hold the handrail and pointed to a nearby pictogram depicting a rider holding a handrail. Ms. Kosoian ignored the instruction, interpreting the pictogram as a mere recommendation. Upon request, she also refused to show the officer her ID. With the help of backup, the officer responded by arresting Ms. Kosian, detaining and handcuffing her in a separate room, searching her backpack, and issuing two tickets. A Montreal Municipal Court eventually acquitted Ms. Kosoian of the charges. Ms. Kosoian sued the officer and the City of Laval for unlawful arrest, claiming $24,000 in moral damages, pain, suffering, inconvenience, and exemplary damages. Her claim was rejected by both the trial court and the Quebec Court of Appeal.

Police officer’s knowledge of the law This case has garnered international coverage primarily due to the ease with which the facts can be summarized into a clickbait-y headline. Indeed, “Canadian woman arrested for refusing to hold an escalator handrail” is bound to pique interest.

This case is equally intriguing, however, for the legal issues it raises. The particular question at issue is whether police officers may be held liable for carrying out an arrest based on an honest but mistaken belief in the state of the law.

The majority of the Court of Appeal deemed the applicable standard of care to be that of a “reasonable police officer” in the circumstances, not that of a “lawyer or reasonable judge.” Shrager JA, in dissent, contended that arresting someone for a nonexistent offence should not be deemed legal simply because the officer acted in good faith.

If upheld, this decision may afford wide latitude to police officers in justifying arrests on the basis of a sincere but false belief in the existence of a law.