The Supreme Court of Canada hears but a handful of criminal cases each year. These appeals are critical to our interpretation and application of the law. They also have great implications for individual rights and liberties.
While this is certainly not an exhaustive list, each year, I select a few cases to highlight in order to showcase the importance of the Canadian Charter of Rights and Freedoms and the court's continued commitment to individual rights and liberties.
So, as this oh-so-strange year draws to a close, let’s take a moment to reflect on some of the most important—and most interesting—criminal law decisions from the Supreme Court of Canada in 2020.
This case involved an individual who had been criminal charged with an offence and subsequently released on bail. The conditions of his bail where, among other things, that he must comply with a curfew and must present himself at the door of his residence within five minutes of a police officer attending to confirm his compliance with his curfew.
On two occasions, Zora failed to present himself at his door. He was then charged with breaching a condition of his bail. At trial, he argued that he had been in his bedroom during both occasions and that he did not present himself at the door because he could not hear the knocking. He was convicted.
The sole issue before the court was whether the Crown was required to prove that the person intended to breach their bail conditions in order to secure a conviction.
The court ultimately elected to quash Zora’s convictions and ordered a new trial.
In doing so, the court held that the Crown is—in fact—required to prove a subjective intention to commit the offence. The Crown must establish that a person has breached a condition of an undertaking or order knowingly or recklessly in order to secure a conviction. The court further stated that bail conditions should be issued with restraint, given the fact that they limit the liberty of a person who is presumed innocent.
This is an important case, as it serves to highlight both the presumption of innocence and the standard upon which criminal prosecutions must be proven in order to be successful.
Another case that contemplated criminal intention is R. v. Chung. This case made headlines here in Vancouver after Chung was acquitted on charges of dangerous driving following a horrible collision that was captured on dashcam and claimed the life of a doctor in 2015.
The trial judge held that, although Chung had certainly committed the act of dangerous driving, he lacked the mental element of the offence or the “guilty mind.” The trial judge held that the speeding, although excessive, was momentary in nature and therefore did not reach the legal threshold required to enter a conviction.
The Court of Appeal disagreed, entering a conviction and ordering a custodial sentence of 18 months.
Chung appealed to the Supreme Court of Canada, seeking to have his acquittal restored.
The court, however, elected to uphold the conviction. In rendering its verdict, it held that the trial judge’s focus on the “momentariness” of the impugned behaviour was an error at law. Behaviour that departs from a reasonable standard can still satisfy the mental element of an offence—even if it is momentary in nature.
The court also took the opportunity to reiterate the proper test to be applied in cases of dangerous driving. Namely, it is a question of whether or not the driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.
Applying this test, the court characterized Chung’s behaviour as a “marked departure from the norm.” According to the Supreme Court of Canada, Chung’s driving behaviour was absolutely criminal in nature.
The facts here involved police receiving a tip about particular telephone numbers, which were said to have been associated with drug trafficking operations. Police called the numbers and made arrangements to meet the men who answered and to buy drugs from them. After each meeting, the men were arrested and charged with drug-related offences.
At trial, each of the accused men claimed that they had been the victims of police entrapment.
The issue boiled down to what exactly entrapment meant, and specifically, how it could relate to an investigation involving a telephone number.
The court acknowledged that while a phone number can qualify as a place over which police may form reasonable suspicion required to conduct an investigation, it is a virtual space. It is inherently different from a public, physical place.
Courts must therefore scrutinize the evidence that prompted the original inquiry in order to ensure that police have properly narrowed their investigation. The information related to the police tip as well as the language used by investigating officers are both of central importance in making a finding of entrapment.
Entrapment, however, still constitutes a police action that creates an opportunity to commit an offence, which would not have otherwise been committed but for that action.
Ultimately, the court balanced police’s ability to flexibly conduct an investigation with individual privacy interests in virtual spaces. It held that an opportunity to commit an offence in this context occurs when an officer makes an offer to a person to commit an offence that can simply be answered by saying the word “yes.”
This provides valuable guidance and insight as to what entrapment looks like in an increasingly online and virtual world.