Recent Interventions

The Criminal Lawyers’ Association intervenes on significant criminal law cases at the Supreme Court of Canada with the pro-bono support of its members.

• The CLA has been granted leave to intervene before the Court of Appeal for Ontario in R. v. Chakasim and R. v. Johnston. The grouped appeals raise important questions about the deference owed to joint submissions for time-served sentences, particularly in cases involving Indigenous accused persons, and the interaction between the Supreme Court of Canada’s decisions in R. v. Anthony-Cook and R. v. Gladue. The appeals ask whether a joint submission attracts Anthony-Cook deference absent a true quid pro quo, and whether sentencing judges retain the authority and obligation to scrutinize joint submissions to ensure meaningful consideration of an accused’s Gladue factors. The CLA will submit that not all joint submissions are entitled to the heightened protection recognized in Anthony-Cook, particularly where an accused accepts a time-served resolution primarily to secure release from pre-trial detention rather than as part of a true negotiated bargain. The CLA will further submit that Anthony-Cook should not prevent sentencing judges from fulfilling their obligations under Gladue and ensuring that the circumstances of Indigenous accused are properly considered before a sentence is imposed. Drawing on the practical realities of plea courts and Gladue courts, the CLA will argue that sentencing judges must retain the ability to critically assess such resolutions, especially where Indigenous and racialized accused face powerful incentives to plead guilty because of prolonged detention and systemic disadvantage. The CLA is represented by Craig Bottomley and Sara Little.
• The CLA has been granted leave to intervene before the Court of Appeal for Ontario in R. v. Searchwell-Beals. This appeal affords the Court an opportunity to provide guidance on the appropriate framework for excusing witnesses from testifying for health-related reasons and the remedies required to protect an accused’s right to make full answer and defence when a witness is excused. The CLA will advance one submission. Where an accused has been granted leave to cross-examine the affiant of an Information to Obtain but the affiant is subsequently excused from testifying on medical grounds, the appropriate remedy is to draw all factual inferences that could realistically have flowed from the authorized cross-examination in favour of the accused. The CLA will submit that merely excising inaccurate information from, or amplifying omissions in, the Information to Obtain is insufficient, as this cannot replace the lost opportunity to test the affiant’s candour, explanations, and state of mind through cross-examination. This approach ensures that the accused’s right to make full answer and defence is meaningfully protected and that the state does not benefit from the evidentiary uncertainty created by the affiant’s unavailability. The CLA is represented by Theresa Donkor and David Hakim.
• The CLA has been granted leave to intervene before the Court of Appeal for Ontario in R. v. McPherson et al. A key issue in this appeal is whether and to what extent the online undercover police surveillance engages s. 8 of the Charter. The appeal involves seven appellants who were targeted in a police investigation called Project Sunder. The police conducted warrantless undercover surveillance of numerous social media accounts by sending “friend requests” using covert personas, which were accepted by the targets. The police also set up fixed surveillance cameras in public areas. Both investigative techniques were undertaken without prior judicial authorization. The CLA will be arguing that s. 8 of the Charter extends to “public privacy”. Building on the notion of privacy as anonymity, s. 8 of the Charter allows people to have a reasonable expectation of privacy in virtual and physical public spaces. Even though people can expect to be perceived in public, the mere risk of surveillance cannot convert all public fora into a panopticon of state investigation. The CLA will be offering a framework for assessing when the line is crossed from permissible observation to unconstitutional intrusion on privacy, by focusing on the manner, quantity, duration, and scope of surveillance, and by examining what that surveillance tends to reveal. The CLA is represented by Samara Secter and Robert Nanni.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Pham. This appeal affords the SCC an opportunity to clarify two important issues concerning the scope of s. 8 of the Charter: when a private citizen assisting a police investigation becomes an agent of the state, and how the provision of false information to a third party affects an individual’s reasonable expectation of privacy. The CLA proposes to advance two submissions. First, the existing test for state agency established by the SCC in R. v. Broyles does not require modification. Whether a civilian’s conduct would have occurred in the form and manner it did but for police intervention remains the governing question. The civilian’s motivation and the nature of any police directions are relevant factors, but neither should be determinative of state agency. Second, providing false information to a third party, even for the purpose of concealment, does not necessarily diminish an individual’s reasonable expectation of privacy vis-à-vis the state. That assessment must remain contextual, recognizing that a person’s relationship with a third party is distinct from their entitlement to protection against unreasonable state searches and seizures. The CLA is represented by Michelle Psutka and David Hakim.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Wood.   Mr. Wood was sentenced to a period imprisonment for 2 years less a day following a guilty plea to theft over $5,000, forgery and possession of stolen property arising from the theft of the famous portrait of Winston Churchill from the Fairmont hotel in Ottawa.  In rejecting a conditional sentence the sentencing judge relied, in part, on international sentencing case law and concluded that a CSO would not promote the principles and purposes of sentencing including having the necessary denunciatory and deterrent effect. The CLA will be advancing the position that CSOs, in practice, are only being imposed in exceptional circumstances and that sentencing courts are failing to give effect to Parliament’s clear intention to use them as a sentencing option more liberally.  Courts are failing to recognize that a CSO can have a significant deterrent and denunciatory effect and can also promote other importing sentencing goals including rehabilitation and reparations.  The CLA will urge the SCC to provide guidance to sentencing courts and encourage those courts to embrace CSOs as an appropriate and just sanction more often.  The CLA will also argue that international cases should not be used to set Canadian sentencing ranges given the different sentencing regimes in foreign jurisdictions which may be directed at different goals than are embraced in Canada. The CLA is represented by Michael Lacy and Heather Lawson.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Dussault. This appeal allows the Court to provide much-needed guidance to judges sentencing an offender who was convicted after a re-trial. The CLA will make two submissions. First, that a judge sentencing an accused on a re-trial should begin from the presumption that they are functionally bound by the sentence imposed at the previous trial. A re-trial sentencing engages the parity principle in its most exacting form. The sentencing judge faces the same offender, sentenced for the same offence, arising from the same underlying conduct and, ordinarily, substantially the same record. Furthermore, defendants should not be punished, or appear to be punished, for bringing a successful appeal. Second, the CLA proposes a non-exhaustive test for when sentencing judges on a re-trial can depart from the sentence imposed at a previous trial. These factors include: (a) if the sentence imposed after the previous trial was demonstrably unfit; (b) if new aggravating facts about the offence(s) are proven beyond a reasonable doubt as part of the subsequent trial; (c) if one or more aggravating facts about the offence(s) that were proven at the first trial are not proven at the re-trial; and (d) if there are new significant mitigating factors present. As a final failsafe, the sentencing judge should ask themselves whether the sentence they are considering raises the spectre of being overly punitive. The hearing in this case will take place on December 11, 2026. The CLA is represented by Annamaria Enenajor and Jocelyn Rempel. The CLA’s factum is available here.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Boily. This appeal gives the Supreme Court an opportunity to provide guidance on the weight to be given to denunciation and deterrence in sentencing offences committed in the context of intimate partner relationships. The CLA will be advancing three submissions. First, Parliament always intended for discharges to be available in IPV cases. Second, the public interest criterion to obtain a conditional discharge is not synonymous with deterrence. Discharges have been granted to individuals convicted of assault, assault with a weapon, and assault causing bodily harm, even in the domestic context. And third, language casting discharges as appropriate in “rare” or “exceptional” cases undermines the individualized sentencing process. These terms do not have a “single fixed meaning.” The search for rare or exceptional circumstances risks converting sentencing ranges into presumptive restraints on that the discretion to impose a proportionate sentence. The hearing in this case will take place on November 3, 2026. The CLA is represented by Jolene Hansell and Brendan Coffey. The CLA’s factum is available here.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Bowcock. This appeal affords the SCC an opportunity to provide guidance on the proper approach to jury instructions concerning eyewitness identification, recognition, or description evidence. The CLA will be advancing two submissions: First, the traditional instruction regarding eyewitness identification evidence and the risk of wrongful conviction should always be given where the evidence tends to inculpate the accused. However, where eyewitness evidence is exculpatory, no special instruction concerning the frailties of eyewitness evidence is necessary. As in the case of exculpatory evidence from a Vetrovec witness, a W.(D.) instruction should be given in relation to exculpatory evidence and should not be diluted by any instruction that suggests, either explicitly or implicitly, that it is dangerous to rely upon such evidence. Second, where the eyewitness evidence is mixed, the trial judge should address the inculpatory and exculpatory components separately, making it clear to the jury which instruction applies to which portion of the evidence.  The hearing in this case will take place on November 4, 2026. The CLA is represented by Ariel Herscovitch and Cassandra Richards. Our factum is available here.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Sarroino. The appeal raises the issue of whether W.(D.) applies beyond the accused’s evidence to other exculpatory evidence led by the Crown or defence. The CLA argued that the principles underlying W.(D.) apply to any direct evidence—whether adduced by the defence or the Crown—that, if accepted within the factual context of a particular case, would make a conviction unreasonable. It follows that a W.(D.) instruction must be provided and expressly related to any evidence that meets this definition. There is no principled reason why the exculpatory testimony of the accused should be treated differently from other evidence that establishes the innocence of the accused. General instructions on the burden of proof are insufficient where specific exculpatory evidence is engaged. The hearing in this case will take place on November 5, 2026. The CLA is represented by Ariel Herscovitch and Cassandra Richards. Our factum is available here.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in NHK Spring Co., Ltd., et al. v. Tony Cheung, et al. This is a civil appeal arising out of a class action involving an alleged international price-fixing conspiracy in the tech industry. The CLA is intervening because the case raises an important issue about the territorial scope of the criminal law. Does a foreign conspiracy constitute a crime in Canada if it has an economic impact here, even if all of the conduct occurred abroad? The CLA argues that the Court should reaffirm that Canadian criminal law does not apply extra-territorially absent express statutory language. Territoriality is the traditional basis for criminal jurisdiction in the common law. Territorial jurisdiction arises where a substantial part of the offence was committed in Canada. The mere fact that a specific act harms Canadians or has an impact in Canada does not establish territorial jurisdiction, unless Parliament expressly prescribes it. The systemic interests in certainty and restraint support this interpretation.  The hearing in this case took place on October 8, 2026 and the judgement is reserved. The CLA was represented by Matt Gourlay and Nikolas De Stefano. The CLA’s factum is available here and the webcast can be viewed here, once available.”
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. Chemlal. This is a Crown appeal from a decision of the Court of Appeal of Quebec regarding the applicable standing for justifying a safety search. A majority of the Court of Appeal allowed the appeal, set aside the convictions against Mr. Chemlal, and ordered the entry of acquittals, as safety searches are only authorized if a police officer believes on reasonable grounds that their safety is at risk. In the context of this case, the majority determined that no such reasonable grounds existed, and the uncovered evidence was excluded under s. 24(2). On appeal, the Crown submits that the applicable standard is that of a reasonable suspicion, not belief. The CLA submits that the power to conduct a safety search, especially outside the context of a lawful detention (or arrest), requires the police to have reasonable grounds to believe that their safety or the safety of the public is at risk. As a common law search power, it is imperative that it be appropriately limited. Furthermore, regardless of the applicable standard for safety searches, the CLA submits that the Supreme Court must provide guidelines on how and when police officers are to conduct safety searches. The proposed guidelines would include the following: (1) there must be an imminent threat to safety prior to conducting the search; (2) objectively discernable facts must demonstrate the imminence of the threat; (3) the search must be limited to what is necessary to respond to the threat; and (4) a proper record of the search must be kept by police. The hearing in this case took place on October 6, 2026 and the judgement is reserved. The CLA was represented by Erin Dann, Paul Socka and Taylor Wormington. The CLA’s factum is available here and the webcast can be viewed here.
•  The CLA has been granted leave to intervene before the Supreme Court of Canada in the companion cases of R. v. Degale and R. v. Bilinski. The mens rea of sexual assault has long been recognized to have two components: (1) intention to touch, and (2) knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched (the “knowledge component”). R v Degale and R v Bilinski presented an opportunity for the SCC to clarify the distinction between the knowledge component of the mens rea, and the defence of honest but mistaken belief in communicated consent. In Bilinski, the CLA took the position that the Crown must always prove the knowledge component of the mens rea beyond a reasonable doubt, regardless of whether the defence is raised, and that eliminating this requirement will reverse the burden of proof. An instruction directing the jury that they should have little difficulty in finding that the Crown has met its burden with respect to the knowledge component should only ever be given where there is no dispute on the facts that the mens rea has been established. In Degale, the CLA took the same position regarding the reversal of the burden of proof, and presented plausible fact scenarios in which an accused can have a non-culpable state of mind while being unable to raise the defence of honest but mistaken belief in communicated consent.  The hearings in these cases took place on May 21 and 22, 2026 and the judgement is reserved. The CLA was represented by Mark Halfyard and Heather Gunter. The CLA’s factum in Degale is available here and Bilinski here. The webcast is not available.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in R. v. A.M. The appeal focused on the interpretation of s. 276 of the Criminal Code in the context of human trafficking and sexual services offences. The appeal also raised the issue of whether a court may consider a complainant’s prior voluntary participation in sex work when assessing alleged exploitation, or whether doing so improperly engages the “twin myths”. The CLA argued that exploitation and consent are distinct legal inquiries: while the twin myths bar propensity reasoning about consent or credibility, they do not preclude contextual evidence of influence or exploitation, which focuses on power, control, and autonomy over time. In trafficking and sexual services cases, prior voluntary sex work may provide the necessary baseline against which a court evaluates whether an accused materially altered a complainant’s working conditions or decision-making. Properly used, this evidence does not rely on discriminatory stereotypes and ought to continue to be assessed under the ordinary rules of evidence to preserve the integrity of the truth-seeking process. The hearing in this case took place on May 21, 2026 and the judgement is reserved. The CLA was represented by Stephanie DiGiuseppe and Kally Ho. The CLA’s factum is available here. The webcast is not available.
• The CLA has been granted leave to intervene before the Supreme Court of Canada in the matter of Attorney General of Quebec v. Luamba before the Supreme Court on January 19 and 20, 2026. Luamba was an appeal from a decision of the Quebec Court of Appeal ruling that provincial legislation which allows police officers to pull over drivers on the roadside in the absence of reasonable grounds to suspect was discriminatory under s. 15 of the Canadian Charter. The CLA argued that the Supreme Court should uphold the Court of Appeal’s decision. The CLA’s submissions focused on how low-threshold police powers, that is, powers that can be exercised in the absence of an objective threshold like the existence of reasonable grounds to believe an offence was committed, cause discrimination. Where the police’s decision to detain is not tethered to an objective threshold, the likelihood of profiling is increased, and victims of discrimination are left without a remedy. The Court reserved its decision to a later date. The hearing in this case took place on January 19 and 20, 2026 and the judgement is reserved. The CLA was represented by Gerald Chan and Alexandra Heine. The CLA’s factum is available here. The webcast is can be viewed here.