November 9, 2023
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R. v. Bertrand Marchand, 2023 SCC 26 - Successful Intervention
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Eric Gottardi, K.C. and Caroline Senini successfully intervened for CDAS at the Supreme Court of Canada in R. v. Bertrand Marchand and its companion appeal R. v. H.V.
A majority of the Court agreed with CDAS’s submission that the mandatory sentencing provisions for child luring were unconstitutional by relying on a reasonable hypothetical that captured youthful offenders.
July 31, 2023
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R. v. Kahsai, 2023 SCC 20 - Successful Intervention
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CDAS is pleased to advise its members of its successful Supreme Court of Canada intervention in R. v. Kahsai, 2023 SCC 20, an important case about the role of amicus curiae.
CDAS was represented by Matthew Nathanson and Rachel Wood, who argued for a broad, flexible approach to the appointment and role of amicus, a role that included amici taking positions adversarial to the crown in order to “balance out the courtroom” and ensure fair trials. This expanded role for amicus was important because accused were often unrepresented and mentally, and unable to effectively defend themselves.
The SCC accepted CDAS's argument that amici can sometimes adopt a role adversarial to the Crown. The Court also agreed that amici can play an important role in balancing out the courtroom and ensuring a fair trial. Further, the court accepted that trial judges should have a wide discretion to appoint amicus, and the flexibility to give them the tools to respond to the unique challenges of each particular case.
This ruling will have far reaching implications and will help protect the fair trial rights of particularly vulnerable people. Further legal commentary can be found in this article from Canadian Lawyer.
CDAS is pleased to have contributed to the development of the law in this important area, and thanks Matthew Nathanson and Rachel Wood for their excellent advocacy.
April 28, 2023
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R. v. Haevischer and Johnston, 2023 SCC 11 - Successful Intervention
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In R. v. Haevischer and Johnston (commonly referred to as the “Surrey 6 case”) the Supreme Court unanimously, and explicitly, accepted CDAS’s arguments that the Vukelich standard for summarily dismissing voir dire applications should be a very high one (see paras. 66-73).
The new, stringent “manifestly frivolous” test will change the law in British Columbia, where Vukelich hearings originated and are most commonly used.
Now it will be significantly harder for trial courts to deny the defence an opportunity to advance Charter claims through calling evidence at a voir dire.
CDAS wishes to thank Matthew Nathanson and Mika Chow for their excellent advocacy on behalf of CDAS at the SCC, and for advancing the law in a manner that will protect trial fairness for all accused.
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The Vancouver Sun and Lexis Nexis addressed this decision, including the impact of CDAS's submissions on this development in the law.
August 17, 2022
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R. v. Ellis, 2022 BCCA 278 - Successful Intervention
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CDAS successfully intervened at the B.C. Court of Appeal in R. v. Ellis, 2022 BCCA 278. Gloria Ng and Alice Vo addressed the use of expert opinion evidence at sentencing, arguing that courts should be able to accept general opinion evidence to assess the moral blameworthiness of marginalized offenders.
The Court of Appeal agreed with CDAS's submissions, holding as follows:
[77] I agree with the analysis in Morris, including the court’s comment that “a generous gateway for the admission of objective and balanced social context evidence should be provided” at sentencing (at para. 13). As aptly submitted by CDAS, a restrictive approach to admissibility that requires an individualized assessment of each offender would likely impede access to justice for marginalized offenders who do not have the resources to obtain individualized expert opinions. It is not only in the interests of offenders, but also the administration of justice, that judges “have the fullest possible information concerning the background of the accused if [they are] to fit the sentence to the offender rather than [exclusively] to the crime”: Gardiner at 414.
CDAS thanks Ms. Ng and Ms. Vo for their excellent advocacy on behalf of the society and marginalized accused throughout British Columbia.
May 24, 2022
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R. v. Johnston - SCC Intervention
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Matthew Nathanson and Mika Chow intervened on behalf of CDAS in R. v. Johnston, SCC File No. 39635, an appeal regarding the scope of Vukelich hearings. The Court reserved. A copy of CDAS’s factum can be found here.
March 24, 2022
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R. v. Bissonnette - SCC Intervention
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Eric Purtzki appeared for CDAS on Bissonnette, regarding the constitutionality of stacking parole ineligibility in multiple murder cases. A copy of the Intervenor Factum and the Webcast of the Hearing are available online.
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Judgment remains under reserve.
March 16, 2022
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R. v. Nahanee - SCC Intervention
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Earlier this year, Tony Paisana and Kate Oja intervened on behalf of CDAS in R. v. Nahanee, SCC File No. 39599 regarding when and how a trial judge may go beyond the submissions of Crown counsel in imposing sentence. The webcast of submissions is now available: . Judgment remains under reserve.
October 5, 2021
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R. v. J.J., 2022 SCC 28
CDAS intervened with the assistance and representation of Mr. Gregory DelBigio, Q.C. The appeal of R. v. J.J., 2022 SCC 28, heard earlier this year, concerned the constitutionality of the “Ghomeshi” laws (whether the seven-day notice requirement in s. 278.93 (4) of the Criminal Code violates s.7 and cannot be saved under s.1 of the Charter). The link to CDAS's submissions can be found here.
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The Court released its judgment on June 30, 2022.
August 11, 2020
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R. v. Langan - Leave to Intervene at SCC
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CDAS has been granted intervenor status by the Supreme Court of Canada for the upcoming case of R. v. Langan. CDAS will be intervening on the issue of section 276 applications applying to Crown evidence.
The CDAS Executive approves applications for interventions on behalf of the Society, the costs of which are often borne by the lawyers themselves. CDAS wishes to thank Eric Purtzki, who will be representing CDAS at the SCC in R. v. Langan.
June 18, 2020
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R. v. Zora - Successful SCC Intervention
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CDAS is pleased to advise its members of its successful intervention at the Supreme Court of Canada in R. v. Zora, 2020 SCC 14, a watershed case dealing with the law of bail.
CDAS was represented at the Supreme Court by Matthew Nathanson and Chantelle van Wiltenburg, in consultation with Tony Paisana and Jeff Campbell Q.C. (now Judge Campbell of the B.C. Provincial Court).
The main issue in Zora was the mental element for the offence of breaching bail. The British Columbia Court of Appeal had held the mens rea was objective. CDAS took the position that it was subjective. The Supreme Court of Canada agreed with CDAS.
The significance of Zora extends far beyond the mens rea issue. The Court affirmed the fundamental importance of restraint when imposing bail conditions. It also offered practical guidance to judges conducting bail hearings.
In what will be a seminal decision for decades to come, the Court accepted all three of CDAS’s arguments.
First, that overreach within the bail system disproportionately affects vulnerable, marginalized people, such as those suffering from addiction, mental illness and poverty. Second, that the consequences flowing from breach convictions extend far beyond the sentence actually imposed, affecting future bail and sentencing proceedings (see R v Lacasse). Third, that bail judges must exercise an independent gatekeeping function, and remain vigilant in ensuring overly broad or unduly restrictive bail conditions are not imposed.
Zora will substantially affect how bail is administered in British Columbia and across Canada. It will serve as an important safeguard against undue deprivations of liberty and will afford significant protection for vulnerable members of the community.
CDAS is proud to have been a part of this important development in the law.
May 29, 2020
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R. v. Ahmad and Williams - SCC Intervention
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CDAS intervened in the R. v. Ahmad and Williams appeal at the Supreme Court of Canada. Thanks in part to Alison Latimer's advocacy on behalf of CDAS, the decision, in this case, has led to positive developments against police intrusion and entrapment of personal, virtual spaces. This case involved a dial-a-dope investigation in which the police had received an unverified tip of drug trafficking from certain phone numbers and used that tip to arrange a drug purchase. The majority of the SCC found that the police had no reasonable suspicion when they phoned one of the numbers and asked to purchase drugs.
Ms. Latimer argued that there is an enhanced privacy interest in virtual spaces compared to physical spaces and that it is important to delineate and circumscribe virtual locations in which police can provide the opportunity to commit a crime. The majority of the Court agreed with this submission and endorsed the relevant factors that CDAS had proposed to avoid "random virtue testing". The impact of CDAS's submissions are found in paragraphs 34-43 of the judgment.
For a copy of the CDAS Factum, click here.
December 04, 2019
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R. v. Zora - SCC Intervention
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CDAS intervened in the Supreme Court of Canada appeal in R. v. Zora on December 4, 2019. Matt Nathanson and Chantelle van Wiltenburg represented CDAS.
The Court was asked to determine whether the mental element for s. 145(3) (breach of recognizance) is objective or subjective. CDAS argues that the broad scope of criminalized conduct, the experience of marginalized groups, and the criminal justice system’s finite resources all support the imposition of a subjective standard.
October 18, 2018
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R. v. Barton - SCC Intervention
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On October 11, 2018, Daniel Song and Matthew Nathanson intervened on behalf of CDAS in R. v. Barton at the Supreme Court of Canada. This case examines crucial aspects of the law and procedure in sexual assault cases. CDAS argued that the Crown should not be able to appeal an acquittal based on an argument not presented at trial. Further, when the Crown's deliberate position at trial contributes to a legal error in a jury charge, the principle against double jeopardy ought to preclude the Crown from appealing on a different theory of liability to establish that error.
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To read a copy of CDAS's factum, click here.
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To view Daniel Song's submissions, click here (beginning at 1:12:50).
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August 03, 2018
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R. v. Barton - Leave to Intervene at SCC
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CDAS was recently granted leave to intervene at the Supreme Court of Canada in R. v. Barton, an appeal of the Alberta Court of Appeal's reversal of a jury acquittal. This appeal raises myriad legal issues. CDAS lawyers, Daniel Song and Matthew Nathanson, will argue about whether the Crown, on its own appeal, can materially change its factual or legal theory of liability.
June 07, 2018
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Groia v. LSUC - Professional Ethics
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CDAS intervened at the Supreme Court of Canada in Groia v. Law Society of Upper Canada, a case considering the limits of a lawyer's ability to zealously advocate for their clients.
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This decision enshrines the principle that the standards of civility cannot compromise a lawyer's duty for resolute advocacy. During a heated trial, Mr. Groia, the lawyer for a man accused of insider trading, had alleged misconduct against the prosecutors with the Ontario Securities Commission. Mr. Groia had an honest but mistaken belief of the prosecutors' professional obligations. His client was acquitted, but the Law Society of Upper Canada (LSUC) launched a professional misconduct allegation. The LSUC found him guilty of professional misconduct. The SCC held that the LSUC's finding of professional misconduct was unreasonable. Mr. Groia's actions, based on a sincerely held, but mistaken belief, did not amount to uncivil conduct, particularly since he adjusted his behaviour once the trial judge expressed concerns.
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Click here for a copy of CDAS's factum to the SCC.​
June 07, 2018
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BCCLA v. Canada - Solitary Confinement
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CDAS intervened at the BC Supreme Court in BCCLA v. Canada (AG), a case challenging the constitutionality of indeterminate solitary confinement. CDAS specifically challenged the lack of access to counsel during the segregation review process. Justice Leask accepted CDAS's submissions and found the current solitary confinement legislation unconstitutional, as it violates sections 7 and 15 of the Canadian Charter of Rights and Freedoms.​
June 07, 2018
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R. v. Brassington - Solicitor-Client Privilege
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CDAS intervened with written submissions to the Supreme Court of Canada in this case. The SCC has reserved its judgment in this case, which examined the interplay between the solicitor-client privilege and informer privilege.​