Which Canadian Supreme Court Justice are you? version 2

1. (May 29, 2008) R. v. L.M.: "The accused was convicted of sexually assaulting his four-year-old daughter and of making, distributing and possessing child pornography." When arrested his computer was found to contain "approximately 5,300 pornographic photographs and 540 pornographic videos," many of the photos involving his daughter, one of her friends, or both. The investigation caught up to him by tracing back ICQ chats and similar Internet channels through which he distributed these photos and videos. He had previously been in trouble with the law for other sexual assaults of minors. The trial judge said he had committed le "pire crime dans les pires circonstances" ("the worst crime in the worst circumstances") and sentenced him to ten years imprisonment for the sexual assault - which is the maximum sentence - extended to a total of 15 by the sentences for the pornography counts (which were to be simultaneous with each other but consecutive to the sexual assault sentence). Finding him to be a high-risk offender and likely to re-offend, she also ordered that he be supervised in the community for ten years. However, the Court of Appeal found that certain facts (in particular, whether sexual penetration had occurred or not) had not been proven, debated whether it really was the worst crime in the worst circumstances and whether that is even an appropriate concept to use in sentencing, and reduced the total sentence from fifteen years to nine years. They also were concerned that the sentence was not consistent with those of others who committed similar crimes. Now the question is whether the decision of the Court of Appeal should stand. [Discuss]

(1) We must show great deference to the decision of the trial judge, but also to that of the appeals court. The parity principle codified in section 718.2(b) of the Criminal Code - that similar crimes should receive similar sentences - must not be ignored. Here, the trial judge's sentence was much more severe than those typically imposed on other similar offenders, failing to consider this mandatory sentencing principle, and that is a "reviewable error," justifying the appeals court's decision.

(2) Appeals courts should show great deference to the sentencing decisions of trial courts, overturning them only when really serious "reviewable" errors are made. "[T]here was no reviewable error" here and the trial judge's 15-year sentence should stand. Also, we can always imagine a worse crime than any given crime, so maximum sentences cannot be reserved for the worst imaginable crimes or we could never impose them at all. Majority decision.

2. (May 22, 2008) R. v. McLarty: M bought "an interest in proprietary seismic data" from an oil and gas exploration company by paying $15,000 up front and promising to pay $85,000 plus interest on a set date several years later. The seismic data was expected to generate income which would be used to pay the debt; and the data was security on the debt, so that the data would be repossessed and sold to cover the debt if the income was not enough to pay it off at that time - and if that still were not enough to cover the debt, tough cookies; M would not have to pay any more. He claimed tax deductions based on the idea that he had bought the data for $100,000 as soon as the deal was made (the details are complicated but amount to that). However, the tax authorities judged that the data was only worth $32,182, in which case it looks suspicious that he would have paid $100,000 for it; and implicitly that he and the company were cooperating ("not dealing at arm's length") to overstate the price so he could claim a bigger deduction. The main question now is whether M's liability to pay the $100,000 was absolute or contingent: in other words, whether he was committed to pay it for sure, or only under some conditions. If absolute, he would be allowed to claim it for tax purposes as soon as he was committed to pay it even if he had not actually paid it yet; if contingent, he would not be allowed to claim it until the conditions occurred and he was committed to pay. Also at issue is whether the transaction was at arm's length, which would determine whether we believe that $100,000 was the correct amount; the trial judge found that it was an arm's length transaction, but the Federal Court of Appeal set that aside. [Discuss]

(1) The liability was absolute. M was committed to pay a total of $100,000 right from the start of the deal. Even though the property pledged as security on the debt, and the income stream earmarked to pay it, might not be enough to cover the debt - and even though some of the debt might go permanently unpaid in such an event - the amount of the debt was unconditional. (Much like a mortgage on a house, where the house might lose its value but the amount of the mortgage is unchanged.) Also, the trial judge's decision that the transaction was at arm's length can stand. Majority decision.

(2) The liability was contingent. Regardless of the notional value of the debt, the amount M would actually have to pay was conditional on the results of the exploration business: if it went well he would end up paying the full $100,000, but if it went poorly he would only pay as much as was generated and lose his interest in the seismic data. As a result, he was not committed to pay the $100,000 with certainty at the time of making the deal, and can only claim the amounts of his payments as he actually pays them. Also, (agreeing with the majority) the trial judge's decision that the transaction was at arm's length can stand.

3. (May 16, 2008) R. v. D.B.: The defendant B was involved in a fight during which he knocked someone to the ground and punched him. The victim was taken to hospital and died of his injuries. B was 17 at the time. He pleaded guilty to a charge of manslaughter, which is a "presumptive offence" under the Youth Criminal Justice Act (YCJA), meaning that young offenders will be sentenced as adults for this offence (with a maximum sentence of life imprisonment) by default, unless they can persuade the court that a youth sentence should apply. The publication ban provisions of the YCJA are also weakened for presumptive offences. He sought a youth sentence, the Crown opposed that, and he challenged the presumptive offence regime as unconstitutional under section 7 of the Charter because it reverses the burden of proof from the Crown to the accused. The trial judge allowed the Charter challenge and sentenced B to the maximum youth sentence of three years. The Court of Appeal upheld that decision. [Discuss]

(1) The "reverse onus" regime of the YCJA in relation to "presumptive offences" is unconstitutional; the YCJA violates the principles of fundamental justice of section 7 of the Charter, and must be overturned; the youth sentence imposed by the trial judge stands. Majority decision.

(2) Although the general reduced moral culpability of young people is a "principle of fundamental justice," the specific details of what that means, and in particular the idea that young people should always presumptively have more lenient sentences or the benefit of a publication ban, are not fundamental principles. The YCJA is Constitutional. However, the youth sentence imposed by the trial judge in this case is reasonable and can stand.

4. (July 26, 2007) Euro-Excellence Inc. v. Kraft Canada Inc.: KFB and KFS manufacture chocolate bars in Europe. KCI has an exclusive agreement to import those bars and sell them in Canada. Euro was buying the same chocolate bars in Europe from KFB and KFS, and importing them and selling them without the permission of KFB, KFS, and KCI. KCI sued for copyright infringement of the logos printed on the wrappers (which copyrights KFB and KFS had registered in Canada and licensed to KCI, in order to support the lawsuit). KCI did not make trademark claims. The trial judge awarded KCI $300,000 in damages and ordered Euro to "make the product non-infringing" - but they could still sell the chocolate bars if they did so. KCI applied for reconsideration, which was denied, then the Federal Court of Appeal declined to hear an appeal on the facts, but directed the case back to the lower-level court to re-examine the damage award. No single majority opinion, but seven of the nine justices voted to allow Euro's appeal. [Discuss]

(1) Copyright does apply fully to the artistic works printed on the candy bar wrappers, and selling the bars includes selling those works. Importing them for the purposes of sale, against KCI's exclusive license, does infringe copyright, even if the bars were originally manufactured by the copyright holders themselves.

(2) In order to correctly interpret the Act we must examine the purposes it is designed to serve: in this case, to protect legitimate economic interests in the creation of artistic works. Exclusive distribution of chocolate bars is a very different kind of economic interest, and the artistic works embodied in the wrappers are only incidental to it. People who buy the chocolate bars are paying for the chocolate, not the wrappers. Thus, although the logos are subject to copyright, the interest claimed here is not covered by copyright.

(3) The other decision saying that copyright applied but was not infringed because the bars were genuine is correct, but to go further: "[w]ithout so deciding, I express grave doubt whether the law governing the protection of intellectual property rights in Canada can be transformed in this way into an instrument of trade control not contemplated by the Copyright Act."

(4) The existing copyright law does not make such distinctions as "incidental" use or "legitimate economic interest" and we should not read them in. Parliament did clearly intend that copyright and trademark could both apply to the same things. The logos were covered by copyright. However, that copyright was not infringed. The copyrighted works were legitimately printed on the wrappers of genuine candy bars by the copyright holders or their licensees; these were not the pirated imitations contemplated by the statute. "By definition, no person can simultaneously be owner and infringer of copyright[.]" Even the exclusive license granted to KCI does not mean that KFB and KFS are capable of infringing their own copyrights, which is what it would take for the goods they manufactured to be infringing goods on import.

5. (June 12, 2008) Stein v. Stein: A couple separated "after 12 years of marriage during which the wife remained home to care for the parties' two children." The divorce court split $1.7 million of assets equally between them and awarded the wife support payments "based on the husband's income of over $200,000 per annum." However, the husband also had contingent tax liabilities associated with tax shelters, the details of which could not be predicted precisely at the time. The divorce court ordered that those liabilities also should be split equally when and if they came due. The Court of Appeal set aside that order saying that it was "a freestanding order apportioning debt between the spouses," forbidden by the British Columbia Family Relations Act, and assigned the contingent liabilities to the husband alone. The question now is whether that decision should stand. [Discuss]

(1) Although we are not allowed to assign one spouse's debt to the other, we are required to make a fair division of assets and that can and often does include changing the asset split to equalize the overall division including "family debts" incurred to benefit them both. That is the situation here: the tax shelters were to benefit the family, even if created in the husband's name. The order for them to split the liabilities equally when and if those came due should be treated as that kind of equalization payment rather than a division of debt, and should be allowed. Majority decision.

(2) Even with the equal division of assets and the support payments, these two parties are not economically equal. The husband has a large income and a lot of business experience; the wife has been out of the workforce for 12 years, her job prospects are iffy, and she is much less financially experienced. They are not equally well equipped to deal with the contingent liabilities and it is not fair to split those equally. Assigning them to the husband, who can better handle them, is appropriate.

6. (April 17, 2008) R. v. Gibson: Two drivers, G and M, were arrested for driving with blood alcohol over 80mg/dL. G gave two breathalyzer samples with results of 120 and 100. M gave two samples both tested at 146. At trial they presented evidence from experts that based on more accurate analysis, G's blood alcohol would have been between 40 and 105, and M's would have been between 64 and 109. Also, the existing breathalyzer system is based on an unrealistic assumption that people eliminate alcohol at 15mg/dL/hr, while the average is higher, thus the breathalyzer tends to read too high. Also, an expert tested M's elimination rate more than six months after the arrest, found it to be 18.5, and estimated based on that that his blood alcohol level at the time of the arrest would have been 71. G was acquitted at trial on reasonable doubt that his blood alcohol had been over 80; then the appeals court set aside the acquittal on the grounds that "evidence of a hypothetical person's elimination rates was not capable of rebutting the presumption in s. 258(1)(d.1)" (which says that blowing over 80 on the breathalyzer can be sufficient to prove that blood alcohol is over 80) and ordered a new trial. M was convicted for lack of reasonable doubt and two appeals courts upheld the conviction. [Discuss]

(1) This kind of evidence could in principle be accepted if it were very strong, and it would be unfair to categorically deny defendants the right to use it, but "[s]traddle evidence will rarely suffice on its own to raise a reasonable doubt as to the accuracy of a breathalyzer result[.]" In particular, a wide range straddling the legal limit proves very little, and an elimination test would have to be very well-controlled to provide meaningful results. So although straddle evidence in general might be acceptable, this particular straddle evidence is not strong enough to raise reasonable doubt that the breathalyzer is accurate, and the lower-court results stand.

(2) The crime of drunk driving is not really about having a blood alcohol level over 80, but about getting drunk enough to put one's blood alcohol level over 80. The expert evidence makes clear that both accused did get that drunk, because their blood alcohol ranges included values over the limit. Also, people's alcohol elimination rates vary dramatically over time and conditions. The elimination test taken by M more than six months after the arrest proves nothing about his body's elimination rate at the time of the arrest; and since taking such a test requires the tested person to drink alcohol, and drunk-driving accused are often recovering alcoholics who should not drink, it would be bad policy to create an incentive for them to drink by accepting that kind of evidence. In general, the court should not accept this kind of evidence showing the accused's blood alcohol was in a range straddling the limit. The lower-court results stand. Majority decision.

(3) All the evidence should be considered, and a decision made based on the "prevailing direction" of the range. In G's case that supports the acquittal. In M's case it does not, but the trial judge made other errors in discounting the expert's evidence inappropriately, and since we do not have the power to acquit M at this level, we would order a new trial for him.

7. (January 25, 2008) R. v. C.L.Y.: A teenager was alleged to have inappropriately touched a young girl he had been babysitting. At trial, the judge considered the alleged victim's evidence and ruled that it was credible, before hearing the accused babysitter's testimony. She then ruled that the accused's testimony did not create the necessary reasonable doubt as to his guilt, rejected his evidence partly because "he was able to provide a surprising amount of detail for incidents in which, according to him, nothing happened," and found him guilty on two of the three charges of sexual assault. The case was appealed on the grounds that by ruling on the accuser's evidence first (which is not standard procedure), the trial judge had shifted the burden of proof to the accused, violating the innocent-until-proven-guilty principle; even though the trial judge did state in her ruling that the finding the girl was credible did not change the prosecution's burden of proof. The majority of the appeals court rejected that argument, but one dissenting judge accepted it, saying that the burden of proof had been shifted "at least subtly." [Discuss]

(1) The trial judge's deviations from the usual procedure were not serious enough to ruin the trial. The fact that she correctly articulated the presumption of innocence principle in her decision further supports the view that she used it correctly. However, the appeal should be allowed and a new trial ordered anyway, because the trial judge erred in judging the accused's evidence, especially in relation to the too-much-detail issue. Majority decision.

(2) The trial judge did err in judging the accused's evidence as having too much detail to be true, but the procedural errors were serious enough to support the appeal also. That the trial judge said innocent until proven guilty does not mean she really followed that principle. Judging the complainant's evidence credible amounted to finding the accused guilty, and doing that before even hearing the accused's evidence is not allowed.

8. (April 25, 2008) R. v. Kang-Brown: A police officer observed a man acting oddly in a bus terminal and informally questioned him as to whether he was carrying illegal drugs in his bag or would consent to a voluntary search of it. He said no. The officer signalled another officer to have a drug-sniffing dog sniff the man's bag. The dog signalled the odour of drugs, at which point the officers arrested the man on suspicion of drug possession, searched his person and bag, and did find drugs. The trial judge found that the accused was not unlawfully detained or searched and that he did not have a reasonable expectation of privacy regarding the odour of his bag in a public transportation facility, and found him guilty of drug possession. All nine Justices agree that the dog-sniff was a search within the meaning of section 8 of the Charter. At issue is whether that search, and the resulting evidence and conviction, were legal. No majority opinion, but six of the nine judges voted to set aside the conviction. [Discuss]

(1) Dog sniffing is a reasonable search because of "the minimal intrusion" involved, its "contraband-specific nature[,] and pinpoint accuracy[.]" Police can make such a search without a warrant if they have "reasonable suspicion" of a crime; however, they did not have reasonable suspicion in this specific case, and the dog's signal (when the dog-sniff was used with reasonable suspicion) should only have been enough to justify a hand search, not an immediate arrest.

(2) Although the accused had a reasonable expectation of privacy regarding his bag's odour, that expectation was very limited in a public place like a bus terminal. The police could have conducted a dog sniff of his bag in particular on the suspicion they had, or even of all passengers' baggage on "generalized suspicion" that there might be drug activity going on, if "reasonably informed passengers were aware of the fact[.]"

(3) There is no specific statute or common law authorizing sniffer-dog searches, and without one, the accused has a reasonable expectation of privacy regarding the odour of his bag, as imperceptible to a human being. Thus the search was illegal on general grounds and the resulting evidence should be excluded. Parliament must provide enabling legislation for this type of search to be permitted.

(4) The accused had a reasonable expectation of privacy regarding his bag and its odour, but that expectation was satisfied in this case and the police did have reasonable grounds to conduct the dog sniff search and arrest him.

9. (June 27, 2008) WIC Radio Ltd. v. Simpson: "M is a well-known and sometimes controversial radio talk show host. The target of one of his editorials was S, a widely known social activist opposed to any positive portrayal of a gay lifestyle." He compared her to Hitler, the KKK, and skinheads. S sued for defamation, saying that she did not in fact advocate violence against gays. M said he was only calling her an intolerant bigot. The trial judge dismissed the case, saying the remarks were defamatory, but it was "fair comment." The Court of Appeal reversed that decision saying it did not qualify for the fair comment defence, which requires that the speaker believes the defamatory implications of the comment; because there was no evidence, and M did not testify, that he believed S actually would condone violence. On the contrary, he repeatedly testified that he did not believe she was "a violent person." [Discuss]

(1) The remarks were defamatory - that is, damaging to S's reputation - but they qualify as fair comment even without subjective honest belief. Honest belief is important in defining fair comment, but because of the importance of freedom of expression, it is appropriate that subjective honest belief should not always be absolutely necessary. We modify the "honest belief" test to apply if any person, not necessarily the speaker, could honestly express the opinion - an "objective" honest belief standard instead of a "subjective" one. Majority decision.

(2) The remarks were defamatory, but honest belief should not be required for fair comment. You can find someone to honestly believe and say any random foolishness, and so requiring that someone could believe the defamatory implications, means nothing.

(3) Because of the context, and M's own reputation, nobody would seriously believe based on the comments that S really was a Nazi, KKK member, skinhead, or someone who would condone violence against gays; it looks like the remarks would not actually damage her reputation and there was no defamation in the first place. However, we cannot overturn the trial judge's decision on that. As for fair comment, honest belief should not be required at all if the other requirements (such as the comment being on a matter of public interest) are met; we can remove the honest belief part of the test completely.

10. (March 28, 2008) Société de l'assurance automobile du Québec v. Cyr: SAAQ is a Provincial auto-insurance monopoly. It entered into a contract with the Centre de vérification mécanique de Montréal (CVVM) to conduct auto safety inspections. Cyr was designated in an appendix to that contract as an "accredited mechanic" who could conduct such inspections. He was not a party to the contract, though his signature appeared in the appendix indicating that he agreed to comply with the required inspection procedures. However, after several warnings the SAAQ revoked his accreditation for failure to follow the procedures properly. He and CVVM filed a case claiming that the SAAQ had not followed its obligations of "procedural fairness" under the "Act respecting administrative justice" (AAJ), which governs executive powers of organizations like SAAQ. The Superior Court held that this was a question of private contract law, not public administrative law, and the SAAQ had fulfilled its obligations under the contract. The majority of the Court of Appeal set aside that decision, saying that the contract was between SAAQ and CVVM, not Cyr, and that the existence of a contract could not excuse the SAAQ from its obligations under AAJ. [Discuss]

(1) "The parties are bound by contract," and it is clear from the laws establishing SAAQ's authority that its relationship with CVVM is designed to be a contractual relationship. Cyr, as an employee of CVVM, is also bound by that contract and contract law should apply.

(2) "[T]he respondent Cyr is entitled to procedural fairness[.]" Although not everything SAAQ does is subject to AAJ, "the act of authorization" is one of the specific things the AAJ is designed to cover, and passing the authority through the contract and CVVM does not exempt it from public law. Majority decision.