SCC’s winter session looks at military justice, lawyers’ fees, Crown copyright, Jordan

Law360 Canada (January 2, 2019, 9:22 AM EST) -- Military justice and Crown copyright are among the topics the Supreme Court of Canada will explore in its winter session that includes criminal appeals asking if defence counsel’s legal fees can be paid from the proceeds of crime forfeited to the state and if the Jordan time limits apply in provincial youth court.

The nine judges will hear 26 appeals from Jan. 14 to March 28 — 14 of which are criminal cases (including 10 as-of-right appeals). As always the subjects run the gamut, from constitutional law, family law and Quebec civil law to private and public international law, municipal law, torts and tax.

The session kicks off Jan. 14 with a motion by the Director of Military Prosecutions (DMP), on behalf of the federal Crown, to temporarily suspend the Court Martial Appeal Court’s (CMAC) Sept. 19 declaration that subsection 130(1)(a) of the National Defence Act (NDA) is constitutionally invalid because military members are denied the right to trial by jury in serious criminal prosecutions: R. v. Beaudry 2018 CMAC 4.

That pivotal provision permits military tribunals to prosecute Canadian Armed Forces (CAF) members for any civilian crimes and offences for which the maximum sentence is five years or more.

Whether it reserves on the stay motion or not, on March 26 the Supreme Court will go on to hear the federal Crown’s constitutional appeal of the CMAC’s majority decision in Beaudry, and the defence appeals of R. v. Stillman and six other appellants — cases which will determine “the future of the military justice system in Canada,” according to the CMAC’s Chief Justice Richard Bell, who dissented in Beaudry.

In Stillman below, a different CMAC panel ruled s. 130(1)(a) does not violate s. 11(f) of the Charter, which guarantees the right to a jury trial for offences with a maximum punishment of five years or more, “except in the case of an offence under military law tried before a military tribunal”.

Commander Mark Letourneau, co-counsel for respondent Cpl. R.P. Beaudry and the appellants in the Stillman series of appeals, said the companion cases are important because “the Supreme Court will be called for the first time to determine the purpose of the military exception to the constitutional right of trial by jury guaranteed under s. 11(f) of the Charter.”

“This determination could have an impact on the jurisdiction of military tribunals to try serious criminal offences committed in Canada by those subject to the Code of Service Discipline,” co-counsel Lt.-Col. Jean-Bruno Cloutier added.

Indeed the CMAC’s decision in Beaudry effectively blew up much of the military justice system. Since Sept. 19, military police have had to take new prosecutions to the civilian courts. The DMP, however, opted not to immediately transfer his existing caseload of 40 serious criminal cases (nearly two-thirds of the CAF’s average annual caseload at courts martial) to civilian courts. Instead, he seeks a stay on Jan. 14, pending the top court’s determination of the Charter and jurisdictional issues in Beaudry and Stillman. Without a stay, the DMP argues in court filings, those prosecutions (most are sex crimes) will have to be redirected to overburdened civilian courts — thus creating “undesirable delays and jeopardizing the ability to try these cases on their merits” — given the consequent risk of not meeting the speedy trial requirements set down by the Supreme Court in R. v. Jordan 2016 SCC 27.

The DMP, Col. Bruce MacGregor, told The Lawyer’s Daily there are 38 cases impacted by Beaudry. “Thirteen of those cases are awaiting the court martial administrator to set a date; five cases have a date set after January 14; four cases have had a date [for trial] and then been adjourned; two cases we have withdrawn because there was a concern that the military judge was going to dismiss them due to the uncertainty from the Beaudry decision but [we reserved] the right to re-prefer them for trial, and one case where a retrial has been ordered by the Supreme Court of Canada, but has yet to have a date set, MacGregor explained. Additionally there were five cases where s. 130(1)(a) charges were withdrawn, and the accused were instead convicted of other substituted NDA charges, he said.

On Jan 25, the Supreme Court will hear a defence appeal of R. v. Rafilovich 2017 ONCA 634, which asks when a sentencing judge can refuse to order an offender to pay a fine in cases where the seized crime proceeds were previously court-ordered to be spent on his legal defence — and thus cannot be forfeited to the Crown in the usual course under the Criminal Code.

The outcome of the case — which implicates an accused’s constitutional right to make full answer and defence — will particularly affect criminal lawyers and their clients in cases involving the police seizure of alleged proceeds of crime.
The case asks the top court to determine whether, as the respondent federal Crown argues, the appeal court below was correct to hold that a sentencing judge’s discretion under s. 462.37(3) of the Criminal Code is limited and not a basis to refuse to fine an offender in lieu of forfeiture where funds were previously released to pay defence counsel’s fees.

That Code provision provides that if the conditions are met for an order for forfeiture of property, but the property cannot be made subject to a forfeiture order, for example because it cannot be located or has been transferred to a third party, a court “may order the offender to pay a fine.”

Trial judges and appeal courts have differed in their approaches to the section, and on the scope of the sentencing judge’s discretion.

When the Supreme Court granted leave to appeal last July, counsel for the appellant Yulik Rafilovich, Gregory Lafontaine of Toronto’s Lafontaine & Associates, told The Lawyer’s Daily “it is difficult to imagine a case of greater importance to both the members of the criminal defence bar and to many of the clients they serve. The issue arises more and more regularly as the Crown’s focus increases on securing forfeiture at the conclusion of successful criminal prosecutions.”

Bradley Reitz, general counsel in Toronto with the Public Prosecution Service of Canada, pointed out at that time that the aim of the proceeds of crime legislation is that “crime shouldn’t pay.”

“And paying for a lawyer is a benefit to an accused,” he told The Lawyer’s Daily after leave was granted. “To take the proceeds that have been generated and recoup them to the state — which is where they belong — that should happen regardless of what the money has been spent on, even if it’s been spent on someone’s defence.”

On Feb. 18, the Supreme Court will hear an as-of-right appeal brought on behalf of a youth, who was 15 when he was arrested. His appeal will clarify what the Charter s. 11(b) right to trial within a reasonable time means in youth court: R. v. K.J.M. 2018 ABCA 278.

The dissenting Alberta Court of Appeal judge below held that the presumptive 18-month time limit set by the Supreme Court’s decision in Jordan (involving an adult accused) is too high for youths, and instead set a presumptive ceiling of 15 months for single-stage youth criminal proceedings in provincial court. The appellant was convicted at trial 18 and a half months after charges were laid of aggravated assault and possession of a weapon for a dangerous purpose (a box cutter). He argues for a presumptive ceiling of 12 months. The Alberta Court of Appeal dismissed his bid to stay the charges on the basis of a s. 11(b) violation, but the two majority judges gave different reasons for doing so.

K.J.M.’s defence counsel, Graham Johnson of Edmonton’s Dawson, Duckett, said after the Alberta Court of Appeal rendered judgment last August that his client would exercise his automatic right of appeal. “The reasons of each justice are just so different that I don’t think you can really distil a ratio from this case,” he told The Lawyer’s Daily.

The Supreme Court is expected to clarify Charter s. 11(b) issues affecting hundreds, if not thousands, of youths across the country, since most criminal charges against those ages 12 to 17 years are handled by provincial courts.

In the intellectual property case of Keatley Surveying Ltd. v. Teranet Inc., the Supreme Court will hear argument from the appellant class of about 350 land surveyors which is suing Teranet for breach of copyright for scanning and copying their land surveys into an online digital data base, from which the public obtains online copies for a fee. The appeal asks whether s. 12 of the federal Copyright Act transfers copyright in plans of survey filed in provincial land registry offices from the surveyor creators to the government.

Teranet manages the province of Ontario’s electronic land registry system. The representative plaintiff claims the respondent has reaped substantial profits at the expense of the class. Ontario’s Superior Court granted summary judgment and dismissed the class action. It held that as a result of the legislative regime requiring registration or deposit of the plans of survey in the land registry office, ownership in the property of the plans of survey, including copyright, was transferred to the province. The plans are then “published by or under the direction or control of Her Majesty” pursuant to s. 12 of the Copyright Act. The Ontario Court of Appeal dismissed the surveyors’ appeal.

The Supreme Court is asked to determine the breadth of Crown copyright under s. 12. According to the appellant, the appeal will address whether governments and their agents may use that provision to assert the transfer of copyright in private work product given to government authorities pursuant to a statutory scheme and then made available by the government to members of the public.

Interveners include five attorneys general, the Federation of Law Societies of Canada, the Canadian Association of Law Libraries, the Canadian Legal Information Institute and the Land Title and Survey Authority of British Columbia.

Fleming v. Ontario, to be argued March 21, arose when the appellant was arrested on his way to an Indigenous protest in Caledonia, Ont.

Police said they arrested him in order to prevent a breach of the peace. There was a struggle and the plaintiff was overpowered, handcuffed and transported away from the scene. At the trial of his civil suit he was awarded general damages, special damages, damages for false arrest, wrongful imprisonment and breach of right to pass, and damages for breach of his s. 2(b) Charter right to freedom of expression. A majority of the Ontario Court of Appeal set aside that judgment and ordered a new trial restricted to determining whether police used excessive force during the arrest.

Fleming’s appeal to the Supreme Court raises questions such as what is the test applicable to reviewing police officers’ exercise of their common law power to arrest, and whether the police actions were minimally impairing and proportional.