Police entrapment, prostitution laws and ‘fair dealing’ appeals feature in SCC’s spring session

The Supreme Court of Canada will hear 16 appeals during its spring 2021 session, continuing to hear all appeals via Zoom, with only the judges physically present in the courtroom. This hearing format has been used since the court’s hearings were resumed in June, when it heard its for first appeals remotely.

The spring hearing line-up includes an appeal by York University of the Ontario Court of Appeal’s decision in favour of Access Copyright’s “fair dealing” claim against it; an internet child luring case that will examine whether the common law rules of entrapment need to be updated for cyberspace; an administrative law and labour relations case concerning the termination of an alcoholic employee and which will address the appropriate standard of appellate review between different levels of court reviewing the decision of an administrative tribunal; and the effect of the suspension of the declaration of constitutional invalidity of Canada’s prostitution laws.

Ten of the appeals in the Supreme Court’s spring session concern criminal convictions – only one of which is by way of leave to appeal granted by the court -- while six are in civil cases. Over one-third of the appeals are from Ontario or Quebec, with three files from British Columbia, five from the Prairie provinces and two from the federal court system.

Appeals in criminal cases

The first hearing of the spring session, on Apr. 13, is Akash Ghotra v. R., concerning police entrapment in an internet child luring matter. The appellant was convicted after being engaged by an undercover police officer posing as a 14-year-old female in an adult chat room. The appellant brought an application for a stay of proceedings based on police entrapment, arguing that in identifying as a 14-year-old girl, the police officer had offered an “opportunity” for him to commit an offence, which constituted police entrapment.

At issue was whether this engagement constituted an opportunity for a crime to be committed, whether an internet chat room is a sufficiently precise location for a crime to be committed, and whether there was a bona fide police investigation going on that would have justified the police use of entrapment.

Two companion criminal appeals to be heard, also as of right, are in Tamim Albashir v. R. and Kasra Mohsenipour v. R. They arise out of a single decision of the B.C. Court of Appeal, and concern the effect of a declaration of constitutional invalidity of Canada’s prostitution laws as a result of the Supreme Court’s December 2013 decision in Canada (Attorney General) v. Bedford and then the subsequent suspension of that declaration of invalidity for one year. The appellants were convicted on charges of living off the avails of prostitution based on evidence that had been amassed from March to December 2014. In quashing the charges, the application judge noted that once a period of suspension ends for the declaration of invalidity, the unconstitutional law is deemed to have always been unconstitutional, and the passage of remedial legislation prior to the expiry date of the suspension did not render the declaration of constitutional invalidity moot.

However, the Court of Appeal allowed the Crown's appeal and entered convictions for both appellants. The Court of Appeal indicated that if a Criminal Code offense is committed during a period of suspended declaration of invalidity, and then the provision is replaced with remedial legislation within that time period of suspension, then the conduct captured by the former iteration of the law is still prosecutable.

Two criminal cases from Quebec – R. v. Abbas Sheikh and Rafi Mohammad Gul v. R. – concern an allegedly unreasonable verdict in a fraud conviction, and similar fact evidence and credibility in a sexual assault conviction, to be heard April 16 and 19 respectively.

Appeals in civil cases

On April 15,  the court will hear an appeal involving a human rights tribunal: the Manitoba Human Rights Board of Adjudication. In Northern Regional Health Authority v. Linda Horrocks, the respondent, a unionized health-care worker and an alcoholic, was terminated from her job for being inebriated at work and for chronic absenteeism. The NRHA offered to allow Horrocks to return to work if she entered into an agreement that included terms requiring her total abstinence from alcohol consumption, but she refused to sign on the basis that it was discriminatory toward a person with a disability (namely alcoholism). The respondent brought a complaint to the Manitoba Human Rights Board of Adjudication. The employer objected on jurisdictional grounds, but that objection was dismissed on the basis that the respondent’s addiction fell under the protection of the Manitoba Human Rights Code and was a factor upon which she was treated adversely.

On May 17 the court will hear the appeal in Trial Lawyers Association of British Columbia v. Royal Sun Alliance Insurance Company of Canada, which addresses the circumstances in which it may be appropriate and permissible for an insurance company to decide not to defend a claim against an insured person. In this case, the plaintiff was injured in a motorcycle accident, and the motorcyclist causing the accident was insured by the defendant insurer, Royal Sun Alliance (RSA).  The policy prohibited operating a motorcycle with any alcohol in the driver’s bloodstream, but RSA’s adjuster concluded from investigation that alcohol was not a factor in the accident. RSA retained counsel to defend the insured’s estate. However, it later obtained the coroner’s report indicating that the insured had a blood alcohol level above zero at the time of accident. RSA then took an “off coverage” position, meaning it took the position that it was not required to defend and indemnify the insured. The Ontario Court of Appeal agreed.

Ville de Montréal v. Deloitte Restructuring Inc., to be heard on May 20, is a bankruptcy case engaging the Companies’ Creditors Arrangement Act and concerns, among other things, whether a victim of fraud or fraudulent tactics in connection with public contracts may effect compensation under s. 21 of the CCAA with debt incurred after the initial order of CCAA proceedings was issued.

And finally, in York University, et al. v. Canadian Copyright Licensing Agency ("Access Copyright"), et al., which is being heard by leave from a Federal Court of Appeal decision, the court will be asked to decide on the interpretation of “fair dealing” under the Copyright Act where it concerns educational institutions. Here, Access Copyright commenced an action against York University in Toronto for copyright infringement, citing York’s use of copied, copyrighted materials in its classrooms, and alleging that usage fees were payable for the copied materials.

York countered that the interim tariff set by the Copyright Board of Canada, as it related to copying activities by York’s employees between September 1, 2011 and December 31, 2013, was not approved and therefore could not be enforced. York counterclaimed, requesting a declaration that any reproductions made by its employees that fell within the Fair Dealing Guidelines it imposed come under the “fair dealing” exception in s. 29 of the Copyright Act.

The Federal Court found in favour of Access Copyright, but the Federal Court of Appeal allowed York’s appeal and dismissed Access Copyright’s action on the basis that the interim tariff is not mandatory for users who do not opt for a licence. It dismissed York’s appeal of the dismissal of its counterclaim.

Seventeen organizations have been granted leave to intervene, including copyright collectives and authors groups.