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Emily Kirkpatrick

SCC poised for first virtual appeal hearing; Zoom ‘observers’ to see novel contract, criminal cases

Friday, June 05, 2020 @ 9:49 AM | By Cristin Schmitz

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The Supreme Court of Canada is opening its virtual courtroom doors next week by pioneering Zoom hearings in several civil and criminal appeals that raise novel issues of undue trial delay, pre-incorporation contracts in strata developments and entrapment in “dial-a-dope” operations.

Up until 1 p.m. (EDT) June 5, the public and media can ask the top court to register them for an unspecified number of “first-come, first-served” Zoom “observer” spots in each of four cases (including one oral leave application), to be argued from June 9 to June 12.

The cases are the Supreme Court’s first foray into live virtual appeal hearings in which all the judges and counsel will participate remotely via their computers from their chambers or offices.

Next week’s hearings starting June 9 are also believed to break new ground globally — the first time that any court has held a Zoom hearing that includes simultaneous interpretation.

Chief Justice Richard Wagner

“We may not be able to welcome members of the public to our physical courtroom, but we are excited to invite everyone to our virtual courtroom for the first time,” Supreme Court Chief Justice Richard Wagner said in a June 3 prepared statement.

Those registered on Zoom as observers will receive a link to the proceedings the day before a hearing is scheduled to proceed. Observers will not be able to use the Zoom camera and microphone functions during the hearings, but they will be able to select either a speaker view or a grid view (thus enabling a view of all the hearing participants at once).

“Anyone participating via the Zoom platform — judges, counsel, media, observers — will be able to control their views and look at whoever they want, even if the person is not speaking,” explains the court’s executive legal officer, Renée Thériault. “This mirrors the experience of being in the courtroom, although observers will have a better view than they might in the courtroom.”

Moreover, the appeals are also being livestreamed (as usual) on the Supreme Court’s website, which means that everyone can watch that webcast — without any need to register. The difference for the webcast viewers is that the camera focuses only on the person speaking.

Renée Thériault, SCC executive legal officer

“The main, and easiest, way for the public to experience the hearings is to watch the livestream,” Thériault said. “However, we felt it was important to include public and media observers formally using the Zoom platform, as part of the open-court principle.”

Thériault explained that the number of Zoom “observer” spaces available to the public for each appeal will vary, depending on the court’s operational needs that day, since the court’s law clerks, and its IT, registry, and other staff will also be observers.

The court is expecting that the virtual hearings will go well. “We have done mock hearings to test everything and are satisfied with how the testing went,” Thériault said. “Still, this is new technology, and the number of observers has been limited to ensure we can maintain the integrity of the hearings.”

She said the court’s focus will be on the parties’ submissions, just as it is in the courtroom. “We will follow the same procedures and customs during the virtual hearing, with necessary adjustments, as we do in the courtroom. We are not trying to create something new, but simply to ensure that we can continue to hear cases and deliver justice to Canadians, as is our duty.”

The Supreme Court will join other courts that have used the Zoom platform for their hearings, including domestically the Federal Court, the Federal Court of Appeal and the British Columbia Court of Appeal, and abroad, the Supreme Courts of Texas, Illinois and Michigan, and courts in Jamaica and Singapore.

First up to be argued, on June 9, is an appeal from a British Columbia Court of Appeal decision which was said to be the first in Canada to enforce a positive covenant in an easement on the basis of pre-incorporation contract principles: Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation.

Emily Kirkpatrick, McEwan Partners

Emily Kirkpatrick, who is representing the respondent along with Ken McEwen of Vancouver’s McEwan Partners, said her experience this week arguing a case for the first time via Zoom at the B.C. Court of Appeal, was “heartening.”

“I personally had concerns on an academic level about advocacy, and the need to be in person, but I have to say that those were at least partially allayed in the B.C. proceeding,” she told The Lawyer’s Daily. “It went pretty smoothly. It’s a bit different, particularly the [judges’] ability to communicate with each other in terms of just looking over their shoulders to each other. Everyone just has to be sort of on higher alert for what is … going on with each other, but after the initial acclimatization, I think things were much more like being in a courtroom than I would have expected.”

Kirkpatrick said she found counsel’s level of engagement with the judicial panel was “quite similar” to an in-court experience.

The pacing of counsel’s submissions was a bit different, she thought. “Just the technological limitations mean everyone of necessity needs to be a bit more hyper-aware to how communication is going, and by that I just mean making sure that there were sufficient pauses, and that you’re locked in with the court enough that it’s made clear when someone has a question,” she said. “The sort of ordinary flow of dialogue is, by definition, a bit different but … once you adjust to that slightly different pace or different rhythm I think it tends to accommodate itself beyond that, as long as everyone is on the same page about what’s trying to be accomplished.”

Kirkpatrick said it will be interesting to see what the bar and bench learn about remote advocacy, and whether its use will continue after the pressure subsides from the COVID-19 pandemic.

“I think it’s just something that everyone is increasingly becoming more acclimated to,” she remarked. “From my perspective … I would not describe it as a particular hardship. It’s like anything that’s a bit different. There’s a level of anticipation and ... trying to visualize how it’s all going to work and anticipate what the kinks might be. But I think there’s also some amount of ... comfort that comes from building facility with these kinds of tools, and having some sense that you’re going to be able to operate in the environment.”

In the Strata Plan case, the B.C. Court of Appeal overturned a trial court’s decision declaring unenforceable a parking agreement entered into between a developer of a mixed-used commercial and residential property and the plaintiff strata’s predecessor in title. While the Court of Appeal refused to overturn the long-standing rule in Austerberry that positive covenants can’t run with the land, it did hold that the strata was bound by the agreement as a pre-incorporation contract. Questions raised at the Supreme Court of Canada include do pre-incorporation contract principles apply to land interests, and to strata developments in Canada and do the principles of pre-incorporation contracts allow positive covenants to run with the land.

On June 10, the top court will turn to an as-of-right appeal emanating from Quebec, R. v. Thanabalasingham.

The respondent, a Sri Lankan refugee and Canadian permanent resident, was charged with the second degree murder of his wife in 2012 but his trial was not scheduled to begin until five years later. The trial judge, relying on R. v. Jordan 2016 SCC 27, granted the accused a stay of proceedings due to the violation of his Charter right to be tried within a reasonable time. The Crown appealed and three days later the respondent was deported to Sri Lanka. Despite his removal, the Crown continued its appeal. A majority of the Court of Appeal held that the appeal was moot and that there were no valid reasons to justify the court nevertheless exercising its discretion to adjudicate the appeal, which they dismissed. Then-Chief Justice of Quebec Nicole Duval Hesler dissented and would have allowed the appeal, annulled the stay and ordered a trial.

On April 17, 2019, the Supreme Court ruling 9-0 from the bench allowed the appeal and remitted the matter to the Court of Appeal for a decision on the merits, finding that the majority of the Court of Appeal erred in concluding that the case was moot. “The mere fact that an individual has been deported, even if he has been deported to a country with which Canada does not have an extradition treaty, does not render a case moot. The underlying basis for the criminal proceedings has not disappeared and there remains a live controversy even if the accused’s return to Canada is unlikely,” the Supreme Court held.

Back at the Court of Appeal, a majority dismissed the Crown’s appeal, holding that the Crown had not proven any errors that would open the door to intervention by the court. Before arriving at his decision, the trial judge had applied the law and considered all the circumstances, including the nature of the offence and society’s interest in having a case of spousal homicide heard on the merits.

Among the questions at the Supreme Court: was the respondent’s s. 11(b) Charter right to trial within a reasonable time infringed and did the courts below err with respect to the “transitional exceptional circumstance test”, notably by misattributing delays in the trial court, and by failing to consider prejudice and the seriousness of the offence of spousal murder in assessing the behaviour of the parties against a standard of which they had no notice?

On June 11, the court will hear an as-of right appeal from a British Columbia man who pleaded guilty to cocaine trafficking as part of a dial-a-dope operation, but who seeks a stay on the basis of police entrapment: Li v. The Queen. The trial judge issued a stay but the B.C. Court of Appeal unanimously set the stay aside, finding that the provincial court judge misapprehended portions of the evidence and misapplied the legal test for entrapment — an area of the law the Supreme Court just clarified on May 29, 2020, in R. v. Ahmad 2020 SCC 11.

The questions in Li are whether the appellant was entrapped, including whether police had the requisite “reasonable suspicion” that the appellant was already engaged in criminal activity.

On June 12, the court will hold a fairly rare oral hearing on a leave application in a criminal evidence case from Manitoba: Weldekidan v. The Queen.

The accused is alleged to have shot three victims. While they were still recovering in hospital, the victims gave individual videotaped statements recounting their versions of what happened. They were told before being filmed that their statements would be video-recorded. Each victim agreed to provide a statement and acknowledged their understanding of the conditions, both verbally and in writing. In their individual statements, all three identified the accused Haben Weldekidan as the shooter. Following a voir dire on the admissibility of the video recorded statements — because two of the victims testified that they did not have any memories of the shooting or of providing the video statements, and the third victim denied having any memory of the individual who shot him — the trial judge held that the video statements were not admissible. The charges were dismissed and Weldekidan was acquitted. The Court of Appeal allowed the Crown’s appeal, overturned the acquittal and ordered a new trial. 

Among the issues for which leave to appeal is sought: is the trial judge, when considering the issue of threshold reliability, limited to simply determining whether the statement was taken under oath in considering procedural reliability, and is it advisable for a trial judge to consider circumstances of taking and administering the oath, including evidence of the declarant’s state of awareness or consciousness, when determining procedural reliability?

Photo of Chief Justice Richard Wagner by Supreme Court of Canada Collection

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