June 22, 2007
Yesterday, the Supreme Court granted leave to appeal in seven cases. Another 18 applications were dismissed. Below is a review of four of the cases granted leave. A review of the other three cases will be provided next week.
Wayne Alexander James v. Her Majesty the Queen, 2007 NSCA 19 and Gurkirpal Singh Khela v. Her Majesty the Queen, 2007 BCCA 50
These two criminal cases will be heard togther. It appears the Supreme Court plans to provide trial judges across the country with guidelines on the proper use of a Vetrovec warning. A Vetrovec warning is a charge given to a jury by the trial judge warning that an unsavoury witness's testimony may lack credibility, particularly where that witness was an accomplice in the crime. Since R. v. Vetrovec, [1982] 1 SCR 811 [Vetrovec], the Supreme Court has had some opportunity to provide further clarification on the use of this warning, but those discussions were usually in contexts where the trial judge failed to provide a warning altogether. Provincial appeal court decisions have filled in the gap by providing more detailed instructions on the proper use of the Vetrovec warning. However, these decisions have not been entirely consistent, fluctuating between those which grant trial judges broad discretion and those which provide lists of the various elements necessary for a proper warning.
Interstingly, the Supreme Court chose to hear the Wayne Alexander James case on the Vetrovec warning issue only, declining to hear the appellant's arguments on a number of other bases. A quick review of the Court of Appeal decision in that case shows that the trial judge's Vetrovec warning was much more comprehensive than that found in the case of Gurkirpal Singh Khela (R v. Khela; R v. Sahota, 2007 BCCA 50 ). Perhaps the Supreme Court will find it useful to compare between these two contrasting Vetrovec warnings in order to fashion proper guidelines for future cases.
Donnohue Grant v. Her Majesty the Queen, 2006 CanLII 18347 (ON CA)
This case involves an 18 year old accused who is quite possibly the most honest person ever caught carrying an illegal firearm. When approached by three police officers and asked whether he had anything that he should not, the accused admitted that he had some marijuana on him. When asked if he had anything else, the accused told the officers he had a revolver. Further, when asked what the gun was for, the accused said that he was "dropping [it] off ... up the road."
The trial judge held that the evidence of the gun was admissible because the accused had not been detained or searched and thus his Charter rights had not been violated. The accused was convicted of possessing a firearm for the purpose of transferring it. The Ontario Court of Appeal found that the police officers's questioning of the accused amounted to more than mere "chit-chat" as characterized by the trial judge and that the accused's Charter rights had been violated. However, the Court of Appeal held that the gun evidence was admissible because it did not bring the administration of justice into disrepute. Further, the Court of Appeal held that "transferring" a firearm simply meant to transport it from one location to another and did not require a transfer of the firearm to another person. Instead of a hearing, perhaps the Supreme Court should simply ask the accused for his honest opinion.
Attorney General of Canada v. Rose Lameman, 2006 ABCA 392
This aboriginal land claim case involves a myriad of different issues. The plaintiffs are descendents of a historical Indian band that no longer exists. The Crown brought a motion for summary judgment dismissing the class action suit on the basis, inter alia, that the action is statute barred and that the plaintiffs do not have standing, since no successor in title (ie. the Band) exists. This case also raises the question of whether a defendant in a representative suit must prove such preliminary objections as against each and every one of the members of the proposed class.
In its leave decision, the Supreme Court also provides the following order:
"The Respondents Rose Lameman, Francis Saulteaux, Nora Alook, Samuel Waskewitch and Elsie Gladue, on their own behalf and on behalf of all descendants of the Papaschase Indian Band No. 136, are allotted one hour in total for oral argument and Her Majesty the Queen in Right of Alberta is allotted 30 minutes for oral argument."
Given the complexity of the issues involved, it is difficult to imagine even the most economical of legal orators covering a fraction of his or her argument in such timespans.
2 Comments
On the issue of the amount of time allotted for oral submissions to the parties:
Mr Soh states, in his summary of A.G. for Canada v Lame man: "Given the complexity of the issues involved, it is difficult to imagine even the most economical of legal orators covering a fraction of his or her argument in such time spans."
Allow me to differ. I suggest that Mr Soh does not understand the purpose of oral argument and the point of written facta.
It is, of course, open to the parties to move for more time.
Having said that, perhaps the SCC was satisfied that the amount of time granted would be more than enough for the Court to understand the issues and for even the minimally skilled, if properly prepared, appellate counsel to cover the "fraction of his or her argument" that needs to be covered in oral submissions, bearing in mind all of the time that counsel will have had to craft both a minimally adequate factum and oral submissions which will express the essence of the party's position.
If it is accurate to say that counsel was unable to cover more than a fraction of the issues that had to be addressed, orally, during the time allotted, in order to properly present the case, then somebody - either on the SCC or counsel - has woefully misunderstood the case.
There is more to the decision of the Supreme Court to grant leave in Donnohue Grant v. Her Majesty than the phenomenon of an honest accused who should never have involved himself in criminal activity.
In all likelihood, the Supreme Court will use this case as an opportunity to alter its own reasoning in R. v. Stillman (1997), 113 C.C.C.(3d) 321 (S.C.C.), which is the most recent and leading case on s.24(2) of the Charter. Under particular attack is the Stillman position that the admission of conscriptive evidence obtained in violation of the Charter adversely affects the fairness of the trial process and for that reason alone requires its exclusion under s.24(2) of the Charter.
At the Ontario Court of Appeal [(2006), 209 C.C.C.(3d) 250 (Ont.C.A.)] Laskin J.A., within the confines afforded to him by stare decisis took a full run at this aspect of R. v. Stillman. Laskin J. A. held that to remain faithful to the language in s.24(2), which requires a consideration of "all of the circumstances," a trial judge should not apply an automatic rule of exclusion when considering the admissibility of unlawfully obtained conscriptive evidence.
The degree to which the Laskin J.A.'s position can be viewed as a challenge to the Supreme Court’s position in R. v. Stillman was most recently acknowledged in R. v. Padavattan, 2007 CanLII 18137 (ON S.C.). In this case, Ducharme J. noted, in obiter, that while he preferred the approach taken by Laskin J.A. in R. v. Grant, he found it hard to reconcile it with the Cory J.'s "strong language" in R v. Stillman.
There is a strong basis to believe that the Supreme Court of Canada will view Laskin J.A.’s dissent from R. v Stillman with favour. In R. v. Orbanski (2005), 174 C.C.C.(3d) 512 (S.C.C.), for example, Lebel and Fish JJ, in their dissenting opinion, held that there is no "almost automatic" rule that conscriptive evidence requires exclusion without considering the seriousness of the violation, and the effect of exclusion on the repute of the administration of justice. In Orbanski, above, the majority did not address the s.24(2) issue after concluding that the s.10(b) violation constituted a reasonable limitation under s.1 of the Charter.
As much as predicting Supreme Court judgments is a mugs game (particularly where the case as yet to be argued), I believe the Supreme Court will revise if not overrule its own reasoning in R. v. Stillman when it releases its judgment in R. v. Grant. Now, I just have to get my hands on some good “Crow sauce” before then.