In this case, the Nova Scotia Court of Appeal considers whether or not a battered woman can use the defence of duress. The accused in this case attempted to take a murder contract out on her estranged husband. The accused admitted the facts in question but argued the defence of duress as she and her daughter had been abused by her estranged husband and she feared for her life.
It has been established by R v. Lavallee, [1990] 1 SCR 852, that the defence of self-defence can be used in a case where a battered woman killed her batterer. However, the facts of the current case did not meet the statutory self-defence provisions, as there was no harm done to the intended victim, and the accused intended to kill the victim. Furthermore, self-defence is primarily a defence of justification – the criminal act is justified and possibly applauded. The defence of duress is a defence of absolution, where the criminal act is recognized as wrongdoing but excused as the accused had no other alternative. In this case, Justice MacDonald reasons that the accused’s action is not one that is justified, but one that should be excused.
The Crown argued that the defence of duress cannot apply because duress is used for situations where a person causes harm to another party due to threats from a third party. However, in this case, the intended victim is also the party posing the threat. However, Justice MacDonald held that the defence of duress exists to excuse acts that are morally involuntary. The threat must be serious, and where the accused is a battered woman, her perspective must be understood by the trier of fact. The accused must subjectively have seen no other alternative, and a reasonable person in those same circumstances must not objectively see another alternative. The timing between the threat and the act is probative but offers flexibility. In this case, the accused’s act was morally involuntary; had the accused attacked her former husband directly, then the defence of self-defence would have applied. There is no principled basis to justify a distinction between the aggressor as opposed to a third party being the intended victim.
Leave to appeal to the Supreme Court of Canada has been granted in this case.
March 29, 2011
Link to Decision
Mary Phan
*
Tuesday, March 29, 2011
Monday, March 28, 2011
Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94
In Leon’s Furniture Limited v. Alberta, the Alberta Court of Appeal considered several issues relating to the interpretation of the Personal Information Privacy Act (PIPA).
This case was a judicial review of a decision by the Privacy Commissioner finding that it was unreasonable for the appellant Leon’s Furniture Ltd. to record driver’s license and vehicle registration information when a person picks up a good. At the tribunal level, the adjudicator found that both driver’s license information and vehicle registration numbers were personal information and it was unreasonable for the appellant to record them.
First, Slatter, J.A. and the majority held that a retailer is permitted to collect personal information where it would be reasonable. They therefore found the tribunal's decision in this regard unreasonable, and overturned it. Conrad, J.A. dissented, finding that the PIPA was enacted to protect individuals’ personal information, and collection can only occur if the information is necessary or subject to the exceptions listed in the Act.
Second, Slatter, J.A. and the majority found that while driver’s license numbers are personal information, vehicle registration numbers are not. In order to be personal information, the information must be about an “identifiable individual” (s 1(k) of the PIPA). The individual must be specifically identified by the information, and the information must be about the individual. Since vehicle registration numbers identify a vehicle and not a person, they are not personal information. Conrad, J.A. dissented and would have found both the driver’s license number and vehicle registration numbers to be personal information. Conrad, J.A. would have interpreted the words “information about an identifiable individual” in section 1(k) of the PIPA broadly and include any information about a person that could be identified from the information itself or who could be identified in combination with information from another source.
Finally, Slatter, J.A. and the majority found it reasonable for a retailer to record personal information when goods are picked up and allowed the appeal. The record of driver’s license information when picking up goods acts to deter fraud and provide information to authorities where fraud has occurred. The question of whether the information was improperly stored was not argued in this case. In dissent, Conrad, J.A. found that driver’s license numbers could be used for the purposes of identity theft and therefore would have upheld the adjudicator’s decision.
March 28, 2011
Link to Decision
Mary Phan
*
This case was a judicial review of a decision by the Privacy Commissioner finding that it was unreasonable for the appellant Leon’s Furniture Ltd. to record driver’s license and vehicle registration information when a person picks up a good. At the tribunal level, the adjudicator found that both driver’s license information and vehicle registration numbers were personal information and it was unreasonable for the appellant to record them.
First, Slatter, J.A. and the majority held that a retailer is permitted to collect personal information where it would be reasonable. They therefore found the tribunal's decision in this regard unreasonable, and overturned it. Conrad, J.A. dissented, finding that the PIPA was enacted to protect individuals’ personal information, and collection can only occur if the information is necessary or subject to the exceptions listed in the Act.
Second, Slatter, J.A. and the majority found that while driver’s license numbers are personal information, vehicle registration numbers are not. In order to be personal information, the information must be about an “identifiable individual” (s 1(k) of the PIPA). The individual must be specifically identified by the information, and the information must be about the individual. Since vehicle registration numbers identify a vehicle and not a person, they are not personal information. Conrad, J.A. dissented and would have found both the driver’s license number and vehicle registration numbers to be personal information. Conrad, J.A. would have interpreted the words “information about an identifiable individual” in section 1(k) of the PIPA broadly and include any information about a person that could be identified from the information itself or who could be identified in combination with information from another source.
Finally, Slatter, J.A. and the majority found it reasonable for a retailer to record personal information when goods are picked up and allowed the appeal. The record of driver’s license information when picking up goods acts to deter fraud and provide information to authorities where fraud has occurred. The question of whether the information was improperly stored was not argued in this case. In dissent, Conrad, J.A. found that driver’s license numbers could be used for the purposes of identity theft and therefore would have upheld the adjudicator’s decision.
March 28, 2011
Link to Decision
Mary Phan
*
Tuesday, March 22, 2011
R. v. Cole, 2011 ONCA 218
In R v. Cole, the Ontario Court of Appeal considered the lawfulness of a several searches of a teacher’s laptop, after the discovery of sexually explicit photographs of a grade 10 student. The Court held that the warrantless police searches of the laptop were unconstitutional, but that searches of the laptop by school officials and employees, and their copying of the incriminating photos onto a disc, were constitutional.
A technician conducting maintenance on the computer of the appellant, a teacher, discovered explicit photographs of a girl he thought was a student at the school. He took a screen shot of the image and brought it to the attention of the principal. The technician again accessed the appellant’s hard drive to show the principal the image. Copies of the image were burned to a disk. The principle asked the appellant to turn over his computer and a search of the laptop’s hard drive and browsing history was conducted. The browsing history revealed a large number of pornographic images. Copies of his browsing history were also saved to a disc. The principle turned over the two disks and the laptop to police for investigation. An Officer from the Cyber Crimes Unit looked at the disks to assess the images. As a result of their contents, the appellant was arrested. Subsequently, and without a warrant, the laptop was sent for analysis. The trial judge found that searches conducted by the technician, principle and school officials of the computer did not violate the appellant’s S. 8 Charter rights, since the charter did not apply to the School Board; however, the appellant’s S. 8 Charter rights had been violated by the warrantless search and seizure by the police and excluded the evidence under s. 24(2) of the Charter. This decision was reversed on appeal to the Superior Court of Justice and sent back for re-trial after the appeal judge found that the teacher had no reasonable expectation of privacy in the laptop.
Karakatsanis J.A., writing for the Court of Appeal, assuming that the Charter did apply to the school board, found that the appellant had a "modified" reasonable expectation of privacy in the contents of the laptop. The appellant did not have a reasonable expectation of privacy in relation to his employer’s access to for the purposes of maintaining the computer and the school’s network, and knew that his employer could access his laptop for these purposes. Accordingly, the technician, principal and school officials did not breach s. 8 of the Charter by accessing the laptop.
However, the appellant had a reasonable expectation of privacy from state intrusion on the contents of his personal files and hard drive. Search of the laptop and discs containing temporary Internet files conducted by the police were unreasonable and violated the appellant’s S.8 Charter rights. The fact that school officials had delivered the laptop to the police did not affect the continuing privacy expectations of the appellant. Similarly, the School Board did not have authority to authorize the search. There was no evidence that exigent circumstances required the police to act without first obtaining a warrant. As a result of this charter breach, the court concluded that this evidence should be excluded under S. 24(2) of the Charter. In contrast, the discs containing photographs given to the police by school officials were admissible. Looking at the pictures was not considered to be a police search or seizure. The appellant could not reasonable have a continued expectation of privacy in relation to pictures accessed through the school’s network.
The court ordered a re-trial of the matter.
March 22, 2011
Link to Decision
Heather Palin
A technician conducting maintenance on the computer of the appellant, a teacher, discovered explicit photographs of a girl he thought was a student at the school. He took a screen shot of the image and brought it to the attention of the principal. The technician again accessed the appellant’s hard drive to show the principal the image. Copies of the image were burned to a disk. The principle asked the appellant to turn over his computer and a search of the laptop’s hard drive and browsing history was conducted. The browsing history revealed a large number of pornographic images. Copies of his browsing history were also saved to a disc. The principle turned over the two disks and the laptop to police for investigation. An Officer from the Cyber Crimes Unit looked at the disks to assess the images. As a result of their contents, the appellant was arrested. Subsequently, and without a warrant, the laptop was sent for analysis. The trial judge found that searches conducted by the technician, principle and school officials of the computer did not violate the appellant’s S. 8 Charter rights, since the charter did not apply to the School Board; however, the appellant’s S. 8 Charter rights had been violated by the warrantless search and seizure by the police and excluded the evidence under s. 24(2) of the Charter. This decision was reversed on appeal to the Superior Court of Justice and sent back for re-trial after the appeal judge found that the teacher had no reasonable expectation of privacy in the laptop.
Karakatsanis J.A., writing for the Court of Appeal, assuming that the Charter did apply to the school board, found that the appellant had a "modified" reasonable expectation of privacy in the contents of the laptop. The appellant did not have a reasonable expectation of privacy in relation to his employer’s access to for the purposes of maintaining the computer and the school’s network, and knew that his employer could access his laptop for these purposes. Accordingly, the technician, principal and school officials did not breach s. 8 of the Charter by accessing the laptop.
However, the appellant had a reasonable expectation of privacy from state intrusion on the contents of his personal files and hard drive. Search of the laptop and discs containing temporary Internet files conducted by the police were unreasonable and violated the appellant’s S.8 Charter rights. The fact that school officials had delivered the laptop to the police did not affect the continuing privacy expectations of the appellant. Similarly, the School Board did not have authority to authorize the search. There was no evidence that exigent circumstances required the police to act without first obtaining a warrant. As a result of this charter breach, the court concluded that this evidence should be excluded under S. 24(2) of the Charter. In contrast, the discs containing photographs given to the police by school officials were admissible. Looking at the pictures was not considered to be a police search or seizure. The appellant could not reasonable have a continued expectation of privacy in relation to pictures accessed through the school’s network.
The court ordered a re-trial of the matter.
March 22, 2011
Link to Decision
Heather Palin
Wednesday, March 16, 2011
Hagen v. Insurance Corporation of British Columbia, 2011 BCCA 124
The British Columbia Court of Appeal considered the interpretation of the Motor Vehicle Act Regulations (“Regulations”) that impose limitations on a motorcyclist with a learners permit. The issue was whether the behaviour of the learner’s supervisor that is beyond the control and reasonable expectation of the learner and which is of short duration, places the learner in violation of the Regulations.
The plaintiff was injured while on his motorcycle. He had a learner’s license which required him to be under the “direct supervision” of a licensed motorcyclist. Learners are not permitted to carry a passenger so the licensed motorcyclist must follow in a car or on a motorcycle. Under the Regulations, “direct supervision” means that “the person supervising can, at all times, see the other person while the other person is operating the motorcycle.” The plaintiff and licensed motorcyclist agreed to a route before setting off. The supervisor followed the learner in a car. While driving, they became separated. The supervisor lost sight of the learner and assumed that he must have turned. The supervisor veered off the agreed upon route moments before the accident occurred.
The Insurance Corporation of British Columbia (“ICBC”) denied the plaintiff benefits under Part 7 of the Insurance (Vehicle) Regulations. It reasoned that the plaintiff was not authorized to operate his motorcycle at the moment of the accident because he was not under direct supervision as required by the Regulations. The plaintiff sued to obtain the benefits or alternatively for breach of contract. There was no dispute over the facts, and the case proceeded as a summary trial. The judge declared that the plaintiff was entitled to Part 7 benefits. The loss of contact was momentary and involuntary and strict liability could not have been contemplated by the drafters of the legislation.
The ICBC appealed. The court considered the relevant sections of the Regulations. It noted that s. 30.06(4) is directed entirely at the behaviour of the learner. The court reasoned that in the context, the subsections of 30.06 require the learner to take all reasonable steps to ensure that he or she is being supervised in compliance with the Regulations. Section 30.06(5), which articulates the direct supervision requirement, must be read as focusing on the behaviour for which the learner can control and be responsible. The court refused the ICBC’s interpretation which would “penalize a person regulated by the Act for unexpected actions by a third party”.
Under the proper interpretation of the Regulations, the learner’s reasonable steps involve arranging for supervision and refraining from driving when it is not reasonable for a learner to believe that he was in sight of the supervisor. In the circumstances, the court upheld the trial judge’s conclusion that the loss of contact was momentary and involuntary and the learner could not be faulted. The appeal was dismissed.
March 16, 2011
Link to Decision
Julia Wilkes
*
The plaintiff was injured while on his motorcycle. He had a learner’s license which required him to be under the “direct supervision” of a licensed motorcyclist. Learners are not permitted to carry a passenger so the licensed motorcyclist must follow in a car or on a motorcycle. Under the Regulations, “direct supervision” means that “the person supervising can, at all times, see the other person while the other person is operating the motorcycle.” The plaintiff and licensed motorcyclist agreed to a route before setting off. The supervisor followed the learner in a car. While driving, they became separated. The supervisor lost sight of the learner and assumed that he must have turned. The supervisor veered off the agreed upon route moments before the accident occurred.
The Insurance Corporation of British Columbia (“ICBC”) denied the plaintiff benefits under Part 7 of the Insurance (Vehicle) Regulations. It reasoned that the plaintiff was not authorized to operate his motorcycle at the moment of the accident because he was not under direct supervision as required by the Regulations. The plaintiff sued to obtain the benefits or alternatively for breach of contract. There was no dispute over the facts, and the case proceeded as a summary trial. The judge declared that the plaintiff was entitled to Part 7 benefits. The loss of contact was momentary and involuntary and strict liability could not have been contemplated by the drafters of the legislation.
The ICBC appealed. The court considered the relevant sections of the Regulations. It noted that s. 30.06(4) is directed entirely at the behaviour of the learner. The court reasoned that in the context, the subsections of 30.06 require the learner to take all reasonable steps to ensure that he or she is being supervised in compliance with the Regulations. Section 30.06(5), which articulates the direct supervision requirement, must be read as focusing on the behaviour for which the learner can control and be responsible. The court refused the ICBC’s interpretation which would “penalize a person regulated by the Act for unexpected actions by a third party”.
Under the proper interpretation of the Regulations, the learner’s reasonable steps involve arranging for supervision and refraining from driving when it is not reasonable for a learner to believe that he was in sight of the supervisor. In the circumstances, the court upheld the trial judge’s conclusion that the loss of contact was momentary and involuntary and the learner could not be faulted. The appeal was dismissed.
March 16, 2011
Link to Decision
Julia Wilkes
*
Friday, March 11, 2011
R. v. Vu, 2011 BCCA 112
The issue on this appeal was the elements of the actus reus of kidnapping, and, specifically, whether the offence is completed after the victim is taken control of and moved to another place, or whether it is a “continuing” offence which is not completed until the person is released. The accused was charged along with several other individuals with kidnapping and unlawful confinement in relation to the taking at gunpoint of the son of a wealthy Vancouver businessman and his subsequent confinement. The victim was initially taken to a residence in Vancouver, and was moved to two other residences during the eight-day period before he was rescued by police. He was only able to identify those present in the residences by voice. On the basis of the victim’s testimony and circumstantial evidence placing him at the three residences, the accused was convicted at trial of unlawful confinement, but acquitted of kidnapping, as the trial judge found there was insufficient evidence to conclude that he had participated in the taking of the victim or his movement between the residences. He found only that based on his presence at the residences, the accused had been aware of the confinement and movement of the victim.
The Crown appealed from the acquittal of kidnapping, arguing that the offence of kidnapping is not completed after the taking of the victim and his movement to another location, but that it continues during his confinement. On this basis, it submitted that the accused should have been convicted as a party to the kidnapping offence given his knowledge of the wrongdoing against the victim and of his movement between the residences, and his assistance in the confinement. The Court agreed, concluding that participation in the taking or movement of the victim was not necessary for conviction as a party to kidnapping. The majority found that although the offence of kidnapping could be complete in law after a victim is taken and moved to another location against his will (i.e.: the actus reus of the offence will then be established), it was not necessarily complete in fact. It held that this did not occur until the victim was released or ceased to withhold his consent to the confinement. The accused’s knowledge of the taking and movement of the victim, and his assistance in the victim’s confinement, was sufficient to conclude that he aided in the commission of the offence of kidnapping. The Court entered a conviction on the kidnapping count and a stay on the unlawful confinement count in accordance with the principle in R. v. Kienapple.
Prowse J.A. concurred in the result but for different reasons. In particular, she did not find it necessary to decide that kidnapping was in all circumstances a continuing offence, but that in this case, it was proper to consider the kidnapping a continuing transaction which encompassed the initial taking of the victim and his subsequent movement from house to house.
This appeal was heard by the Supreme Court of Canada in March 2012, but the decision has not yet been rendered.
March 11, 2011
Link to Decision
Julia Wilkes
The Crown appealed from the acquittal of kidnapping, arguing that the offence of kidnapping is not completed after the taking of the victim and his movement to another location, but that it continues during his confinement. On this basis, it submitted that the accused should have been convicted as a party to the kidnapping offence given his knowledge of the wrongdoing against the victim and of his movement between the residences, and his assistance in the confinement. The Court agreed, concluding that participation in the taking or movement of the victim was not necessary for conviction as a party to kidnapping. The majority found that although the offence of kidnapping could be complete in law after a victim is taken and moved to another location against his will (i.e.: the actus reus of the offence will then be established), it was not necessarily complete in fact. It held that this did not occur until the victim was released or ceased to withhold his consent to the confinement. The accused’s knowledge of the taking and movement of the victim, and his assistance in the victim’s confinement, was sufficient to conclude that he aided in the commission of the offence of kidnapping. The Court entered a conviction on the kidnapping count and a stay on the unlawful confinement count in accordance with the principle in R. v. Kienapple.
Prowse J.A. concurred in the result but for different reasons. In particular, she did not find it necessary to decide that kidnapping was in all circumstances a continuing offence, but that in this case, it was proper to consider the kidnapping a continuing transaction which encompassed the initial taking of the victim and his subsequent movement from house to house.
This appeal was heard by the Supreme Court of Canada in March 2012, but the decision has not yet been rendered.
March 11, 2011
Link to Decision
Julia Wilkes
Thursday, March 10, 2011
Pierre v. McRae, 2011 ONCA 187
The Court of Appeal for Ontario considered whether a coroner has jurisdiction to inquire into the representativeness of the jury roll from which a jury is selected for a coroner’s inquest. A representative and impartial jury is necessary to ensure that the public has confidence in the inquest’s process and conclusions. Coroner’s inquests were ordered in the deaths of two First Nations individuals. The families expressed concern over the composition of the jury roll, specifically that it might exclude First Nations individuals. After requests to government officials were refused, the families asked the presiding coroners to issue a summons to the Director of Court Operations in Thunder Bay to determine how the jury rolls were assembled. The coroners declined.
The families sought judicial review of these decisions. The Divisional Court dismissed the requests for three reasons. First, the court found that the coroner was not authorized by statute to review the process for the selection of the jury roll. Second, if a coroner reviewed the jury roll and identified a problem, the coroner would have no authority to remedy the problem. Finally, the court deferred to the coroners’ decisions that the evidence submitted by the applicants was insufficient to warrant further inquiry. The families appealed.
The Coroners Act and Juries Act provide the statutory framework for jury selection in coroner’s inquests. Under the Juries Act, the sheriff in a county or district prepares a jury roll based on the jury service notices returned by individuals randomly selected from municipal assessment lists. Since First Nations people living on reserves do not appear on these lists, s. 6(8) of the Juries Act provides a separate procedure for selecting First Nations to a jury.
If there is a reserve within the district or county, the sheriff must select a list of names of First Nations individuals from “any record available” and add them to the jury roll. Under s. 34 of the Coroners Act, the coroner may require the sheriff to provide a list of names to constitute a jury. The court noted that a representative jury is one that represents a cross-section of the larger community and that a representative jury enhances the impartiality of the jury.
The court held that there was a legislative silence in respect of the coroner’s jurisdiction. Thus, the court considered whether the legislature intended the coroner to have this power by necessary implication.
The court considered the five circumstances in which the doctrine of jurisdiction by necessary implication applies as set out by the Supreme Court of Canada in ATCO. It held that the doctrine must be applied in the circumstances because it is essential to permit the coroner to fulfill his mandate conferred by the Coroners Act. To ensure a representative and impartial jury, it must be selected from a jury roll that is properly constituted pursuant to the Juries Act. Thus, a coroner has the necessarily implied jurisdiction to inquire into the representativeness of a jury roll from which an inquest jury is selected. The coroner also has the jurisdiction to order a remedy in the event that the jury roll is non-compliant with the Act. In that circumstance, the coroner has the jurisdiction to order the sheriff to produce a jury roll that complies with s. 6(8) of the Juries Act.
March 10, 2011
Link to Decision
Julia Wilkes
*
The families sought judicial review of these decisions. The Divisional Court dismissed the requests for three reasons. First, the court found that the coroner was not authorized by statute to review the process for the selection of the jury roll. Second, if a coroner reviewed the jury roll and identified a problem, the coroner would have no authority to remedy the problem. Finally, the court deferred to the coroners’ decisions that the evidence submitted by the applicants was insufficient to warrant further inquiry. The families appealed.
The Coroners Act and Juries Act provide the statutory framework for jury selection in coroner’s inquests. Under the Juries Act, the sheriff in a county or district prepares a jury roll based on the jury service notices returned by individuals randomly selected from municipal assessment lists. Since First Nations people living on reserves do not appear on these lists, s. 6(8) of the Juries Act provides a separate procedure for selecting First Nations to a jury.
If there is a reserve within the district or county, the sheriff must select a list of names of First Nations individuals from “any record available” and add them to the jury roll. Under s. 34 of the Coroners Act, the coroner may require the sheriff to provide a list of names to constitute a jury. The court noted that a representative jury is one that represents a cross-section of the larger community and that a representative jury enhances the impartiality of the jury.
The court held that there was a legislative silence in respect of the coroner’s jurisdiction. Thus, the court considered whether the legislature intended the coroner to have this power by necessary implication.
The court considered the five circumstances in which the doctrine of jurisdiction by necessary implication applies as set out by the Supreme Court of Canada in ATCO. It held that the doctrine must be applied in the circumstances because it is essential to permit the coroner to fulfill his mandate conferred by the Coroners Act. To ensure a representative and impartial jury, it must be selected from a jury roll that is properly constituted pursuant to the Juries Act. Thus, a coroner has the necessarily implied jurisdiction to inquire into the representativeness of a jury roll from which an inquest jury is selected. The coroner also has the jurisdiction to order a remedy in the event that the jury roll is non-compliant with the Act. In that circumstance, the coroner has the jurisdiction to order the sheriff to produce a jury roll that complies with s. 6(8) of the Juries Act.
March 10, 2011
Link to Decision
Julia Wilkes
*
R. v. M.R., 2011 ONCA 190
This appeal addressed the elements of the offence of criminal negligence causing death with respect to both principal offenders and parties to the offence. Three young men engaged in a street race in which one of the drivers lost control of his vehicle, collided with a lamp post and was killed. The two surviving drivers were charged under s. 249.2 of the Criminal Code with criminal negligence causing death while street racing. The respondent, who was the “flag man” who gave the signal for the drivers to start the race, was charged as a party to the offence on the basis that he had aided or abetted the drivers. The trial judge acquitted the respondent on the basis of a directed verdict, concluding that dropping his jacket to start the race was not sufficient to constitute the offence of criminal negligence causing death, and that it would bring the administration of justice into disrepute if he was found to be a participant in the race. The Crown argued on appeal that the trial judge did not properly apply s. 21 of the Criminal Code.
The Court of Appeal allowed the appeal. It found that the trial judge erred in failing to refer to s. 21 in his reasons. Given this error, the Court then went on to consider the disposition it should make with respect to the respondent’s motion for a directed verdict of acquittal. The Court first determined the elements of the offence of criminal negligence causing death for a principal offender. It noted that the actus reus required a marked and substantial departure from the conduct of a reasonably prudent person. With respect to the mental element, it noted that the mens rea for criminal negligence is whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. With respect to the consequence (the death), the Court concluded that the mens rea should be the same as that for unlawful act manslaughter: objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.
It then considered the elements of the offence required to establish liability as a party. It found that the actus reus required only that the accused have done something (or in some cases omitted to do something) that assisted another in committing the offence. With respect to the first element of the mens rea, it found that the Crown must prove that the accused intended to assist the principal in the commission of the offence and that he or she knew that the principal intended to commit it. The aider must do something with intent to assist conduct that is criminally negligent and know sufficient details of the assisted conduct to render that conduct criminally negligent. The Court noted, however, that in some circumstances a higher form of mens rea will be required for an aider than for the principal who committed the offence. In particular, it may require a knowledge of the circumstances which constitute the principal offence in cases where the principal offence involves elements of negligence or a failure to exercise due diligence.
With respect to the second element of the mens rea, the Court was of the view that it is not necessary that an aider have subjective foresight of the consequence of the criminally negligent act he or she is assisting. On the basis of the Supreme Court of Canada’s decision in R. v. Jackson, [1994] 4 S.C.R. 573, the Court concluded that, as for principal offenders, the mens rea requires only objective foresight of bodily harm that is more than trivial or transient.
The Court dismissed the respondent’s motion for a directed verdict. It was satisfied that the respondent, by dropping his jacket, committed an act that assisted the drivers to participate in a street race, constituting the actus reus. It was also satisfied that, given the dangers caused by street racing, there was evidence upon which a reasonable jury could find the drivers’ actions to be criminally negligent. With respect to the mens rea, the Court was satisfied that there was evidence that the respondent intended to assist the street race and that he knew the details of how it would take place. It found that it would be open to a court to conclude that the race, as the respondent anticipated it, was a marked and substantial departure from what was reasonable in the circumstances, and that a reasonable person would have appreciated that bodily harm was a foreseeable consequence. The Court thus allowed the appeal and ordered a new trial.
March 10, 2011
Link to Decision
Julia Wilkes
The Court of Appeal allowed the appeal. It found that the trial judge erred in failing to refer to s. 21 in his reasons. Given this error, the Court then went on to consider the disposition it should make with respect to the respondent’s motion for a directed verdict of acquittal. The Court first determined the elements of the offence of criminal negligence causing death for a principal offender. It noted that the actus reus required a marked and substantial departure from the conduct of a reasonably prudent person. With respect to the mental element, it noted that the mens rea for criminal negligence is whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. With respect to the consequence (the death), the Court concluded that the mens rea should be the same as that for unlawful act manslaughter: objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.
It then considered the elements of the offence required to establish liability as a party. It found that the actus reus required only that the accused have done something (or in some cases omitted to do something) that assisted another in committing the offence. With respect to the first element of the mens rea, it found that the Crown must prove that the accused intended to assist the principal in the commission of the offence and that he or she knew that the principal intended to commit it. The aider must do something with intent to assist conduct that is criminally negligent and know sufficient details of the assisted conduct to render that conduct criminally negligent. The Court noted, however, that in some circumstances a higher form of mens rea will be required for an aider than for the principal who committed the offence. In particular, it may require a knowledge of the circumstances which constitute the principal offence in cases where the principal offence involves elements of negligence or a failure to exercise due diligence.
With respect to the second element of the mens rea, the Court was of the view that it is not necessary that an aider have subjective foresight of the consequence of the criminally negligent act he or she is assisting. On the basis of the Supreme Court of Canada’s decision in R. v. Jackson, [1994] 4 S.C.R. 573, the Court concluded that, as for principal offenders, the mens rea requires only objective foresight of bodily harm that is more than trivial or transient.
The Court dismissed the respondent’s motion for a directed verdict. It was satisfied that the respondent, by dropping his jacket, committed an act that assisted the drivers to participate in a street race, constituting the actus reus. It was also satisfied that, given the dangers caused by street racing, there was evidence upon which a reasonable jury could find the drivers’ actions to be criminally negligent. With respect to the mens rea, the Court was satisfied that there was evidence that the respondent intended to assist the street race and that he knew the details of how it would take place. It found that it would be open to a court to conclude that the race, as the respondent anticipated it, was a marked and substantial departure from what was reasonable in the circumstances, and that a reasonable person would have appreciated that bodily harm was a foreseeable consequence. The Court thus allowed the appeal and ordered a new trial.
March 10, 2011
Link to Decision
Julia Wilkes
Wednesday, March 9, 2011
Lancer Enterprises Ltd. v. Saskatchewan Government Insurance, 2011 SKCA 28
This case clarifies what an insurer in Saskatchewan must prove when it raises arson as a defence. The Saskatchewan Court of Appeal determined that the defence of arson will be granted when the totality of evidence establishes arson on a balance of probabilities. There is no threshold requirement that the insurer prove the incendiary nature of a fire before the Court may proceed to consider evidence relating to opportunity, motive and credibility.
In the criminal case of R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 SCR 154, the Supreme Court of Canada determined that evidence tending to establish identity, such as motive and opportunity, can be considered as evidence going to prove the incendiary nature of a fire when arson cannot be proved by direct evidence. As there cannot be a higher standard of proof in a civil case than in a criminal case, the standard of proof set in R. v. Monteleone, applies to an insurer claiming arson as a defence in a civil context. It was found that circumstantial evidence supported the position of Saskatchewan Government Insurance that a fire was deliberately set by the Director of Lancer Enterprises Ltd. Saskatchewan General Insurance did not have to eliminate the reasonable possibility of a natural or accidental fire before the evidence of motive, opportunity and credibility could be considered. It was necessary that the totality of the evidence be looked at and an inference be drawn as to the incendiary origin of the fire from incuplatory evidence linking the Director to the fire.
March 9, 2011
Link to Decision
Kaitlind de Jong
*
In the criminal case of R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 SCR 154, the Supreme Court of Canada determined that evidence tending to establish identity, such as motive and opportunity, can be considered as evidence going to prove the incendiary nature of a fire when arson cannot be proved by direct evidence. As there cannot be a higher standard of proof in a civil case than in a criminal case, the standard of proof set in R. v. Monteleone, applies to an insurer claiming arson as a defence in a civil context. It was found that circumstantial evidence supported the position of Saskatchewan Government Insurance that a fire was deliberately set by the Director of Lancer Enterprises Ltd. Saskatchewan General Insurance did not have to eliminate the reasonable possibility of a natural or accidental fire before the evidence of motive, opportunity and credibility could be considered. It was necessary that the totality of the evidence be looked at and an inference be drawn as to the incendiary origin of the fire from incuplatory evidence linking the Director to the fire.
March 9, 2011
Link to Decision
Kaitlind de Jong
*
Tuesday, March 8, 2011
R. v. Ladue, 2011 BCCA 101
The issue on this appeal was how s. 718.2(e) of the Criminal Code should be applied where an Aboriginal offender has breached a condition of a long-term supervision order. In 2003, the appellant was sentenced to three years’ imprisonment for breaking into a dwelling house and committing sexual assault. This was his fourth conviction for similar sexual offences, amongst approximately 40 prior convictions. He conceded the long-term offender designation sought by the Crown, and a seven-year supervision order was imposed. Following his release from custody in 2006, he was convicted of three breaches of the condition of the order that he abstain from consuming intoxicants, and was returned to custody. There was a delay in his release in 2009, which resulted in his inability to occupy a space in a Kamloops halfway house where he would have received the support of an Aboriginal elder. He was instead sent to a halfway house in downtown Vancouver, where he was immediately exposed to drugs. He tested positive for their use on several occasions, and was sentenced to three years’ imprisonment after pleading guilty to breaching the supervision order. He argued on appeal that the sentencing judge failed to give effect to his Aboriginal heritage and to s. 718.2(e) of the Code, and that the sentence was demonstrably unfit in the circumstances.
The appellant grew up in extremely disadvantaged circumstances. His parents had significant substance abuse problems, and passed away when he was very young. He initially lived with his grandparents, but was removed from his community and placed in a residential school at the age of five, where he was sexually abused. He began consuming alcohol at the age of nine, and had abused alcohol and/or illicit drugs for all but a six-year period since that time. His criminal convictions were closely linked to his substance abuse.
The majority of the Court of Appeal allowed the appeal on the basis that the sentencing judge failed to give sufficient weight to his Aboriginal heritage and to the principle of rehabilitation, leading her to impose an unfit sentence. The majority was of the view that, despite recognizing the appellant’s background and circumstances, she did not give “any tangible consideration” to his Aboriginal heritage, but, rather, gave undue weight to the principle of isolation of the offender. In this case, the appellant’s substance abuse was directly related to his treatment as an Aboriginal person. Despite his failed attempts to live in the community without breaching his supervision order, the majority noted that the appellant would need to learn how to manage his substance abuse in the community, and referred to his desire to do so.
The majority rejected the view that rehabilitation will play only a small role when sentencing long-term offenders, and found that the trial judge erred in concluding that it was no longer a factor for the appellant. They were of the view that the role of rehabilitation in sentencing will depend on the circumstances of the offender and is not dependent on his or her designation, and that the direction in s. 718.2(e) to exercise restraint with particular attention to Aboriginal offenders is still to be applied where the individual is a long-term offender.
The majority believed that a sentence of one year would properly reflect the principles and purpose of sentencing, allowing the appellant time to achieve sobriety and for correctional staff to find an appropriate place for him following his release.
Chiasson J.A. dissenting, would have allowed the appeal in part. Although recognizing that the Aboriginal background of an offender is an additional factor to be taken into account by sentencing judges, he was of the view that there was no general rule necessitating an emphasis on rehabilitation when sentencing Aboriginal offenders. In the circumstances, the sentencing judge considered the appellant’s background, and Chiasson J.A. felt that it would be inappropriate for the Court to interfere with the weight the judge gave to the various factors she considered or her emphasis on the protection of the community. He would have reduced the appellant’s sentence to two years. The Supreme Court of Canada recently upheld the decision of the majority of the Court of Appeal, in reasons reported under R. v. Ipeelee, 2012 SCC 13.
March 8, 2011
Link to Decision
Julia Wilkes
The appellant grew up in extremely disadvantaged circumstances. His parents had significant substance abuse problems, and passed away when he was very young. He initially lived with his grandparents, but was removed from his community and placed in a residential school at the age of five, where he was sexually abused. He began consuming alcohol at the age of nine, and had abused alcohol and/or illicit drugs for all but a six-year period since that time. His criminal convictions were closely linked to his substance abuse.
The majority of the Court of Appeal allowed the appeal on the basis that the sentencing judge failed to give sufficient weight to his Aboriginal heritage and to the principle of rehabilitation, leading her to impose an unfit sentence. The majority was of the view that, despite recognizing the appellant’s background and circumstances, she did not give “any tangible consideration” to his Aboriginal heritage, but, rather, gave undue weight to the principle of isolation of the offender. In this case, the appellant’s substance abuse was directly related to his treatment as an Aboriginal person. Despite his failed attempts to live in the community without breaching his supervision order, the majority noted that the appellant would need to learn how to manage his substance abuse in the community, and referred to his desire to do so.
The majority rejected the view that rehabilitation will play only a small role when sentencing long-term offenders, and found that the trial judge erred in concluding that it was no longer a factor for the appellant. They were of the view that the role of rehabilitation in sentencing will depend on the circumstances of the offender and is not dependent on his or her designation, and that the direction in s. 718.2(e) to exercise restraint with particular attention to Aboriginal offenders is still to be applied where the individual is a long-term offender.
The majority believed that a sentence of one year would properly reflect the principles and purpose of sentencing, allowing the appellant time to achieve sobriety and for correctional staff to find an appropriate place for him following his release.
Chiasson J.A. dissenting, would have allowed the appeal in part. Although recognizing that the Aboriginal background of an offender is an additional factor to be taken into account by sentencing judges, he was of the view that there was no general rule necessitating an emphasis on rehabilitation when sentencing Aboriginal offenders. In the circumstances, the sentencing judge considered the appellant’s background, and Chiasson J.A. felt that it would be inappropriate for the Court to interfere with the weight the judge gave to the various factors she considered or her emphasis on the protection of the community. He would have reduced the appellant’s sentence to two years. The Supreme Court of Canada recently upheld the decision of the majority of the Court of Appeal, in reasons reported under R. v. Ipeelee, 2012 SCC 13.
March 8, 2011
Link to Decision
Julia Wilkes
Friday, March 4, 2011
Nova Scotia (Transportation and Infrastructure Renewal) v. Peach, 2011 NSCA 27
The Nova Scotia Court of Appeal considered whether a civil servant may waive solicitor-client privilege that would otherwise attach to confidential legal advice received from a government lawyer. The applicant sought information regarding the legal status of a roadway in Digby County including whether it was public or private and, if it was public, which level of government was responsible for maintenance. A government official responded and referred to a legal opinion. The applicant brought a freedom of information request for a copy of the opinion. Her request was denied on the basis of solicitor-client privilege.
The lower court determined that solicitor-client privilege had been waived. The Department of Transportation and Infrastructure Renewal ("DTIR") appealed.
The judges of the court of appeal considered who had the authority to waive solicitor-client privilege. DTIR submitted that only the executive branch of Nova Scotia through an order-in-council of the Executive Council had the authority to waive privilege. Cited case law referred to waiver by the “executive branch of government” but did not specifically limit to the Executive Council. The court reasoned that there is some information that is known to employees of provinces that is confidential and not disclosed to cabinet (i.e. confidential information within the knowledge of support staff to independent boards and commissions). Thus, it cannot be that the Executive Council is the only authority to release this information.
The court considered the Carltona principle of distributed government which enshrines a Minister’s power to delegate. Where the exercise of a discretionary power is entrusted to a Minister of the Crown, it may be presumed that the acts will be performed not by the Minister in person but by responsible officials in his Department. This is the first case to expressly apply the principle to waiver of privilege. The court concluded that a civil servant may waive privilege of a legal opinion from a government lawyer. The court accepted that the framework promoted by the trial judge to determine whether a particular actor has authority is consistent with the Carltona principle. The court should consider “the authority of a particular government actor and determine whether the advice sought and any waiver “follow” or is “coextensive” with that person’s subject-matter and/or territorial responsibilities”. The court concluded that the government actor who released the information had the authority to waive privilege.
The court agreed with the trial judge’s consideration of the job description and reasoned that if the employee had the authority to acquire a legal opinion than he must have the authority to disclose it.
The court applied the test for waiver and held that the acts of the government actor met the test. The appeal was dismissed.
March 4, 2011
Link to Decision
Julia Wilkes
*
The lower court determined that solicitor-client privilege had been waived. The Department of Transportation and Infrastructure Renewal ("DTIR") appealed.
The judges of the court of appeal considered who had the authority to waive solicitor-client privilege. DTIR submitted that only the executive branch of Nova Scotia through an order-in-council of the Executive Council had the authority to waive privilege. Cited case law referred to waiver by the “executive branch of government” but did not specifically limit to the Executive Council. The court reasoned that there is some information that is known to employees of provinces that is confidential and not disclosed to cabinet (i.e. confidential information within the knowledge of support staff to independent boards and commissions). Thus, it cannot be that the Executive Council is the only authority to release this information.
The court considered the Carltona principle of distributed government which enshrines a Minister’s power to delegate. Where the exercise of a discretionary power is entrusted to a Minister of the Crown, it may be presumed that the acts will be performed not by the Minister in person but by responsible officials in his Department. This is the first case to expressly apply the principle to waiver of privilege. The court concluded that a civil servant may waive privilege of a legal opinion from a government lawyer. The court accepted that the framework promoted by the trial judge to determine whether a particular actor has authority is consistent with the Carltona principle. The court should consider “the authority of a particular government actor and determine whether the advice sought and any waiver “follow” or is “coextensive” with that person’s subject-matter and/or territorial responsibilities”. The court concluded that the government actor who released the information had the authority to waive privilege.
The court agreed with the trial judge’s consideration of the job description and reasoned that if the employee had the authority to acquire a legal opinion than he must have the authority to disclose it.
The court applied the test for waiver and held that the acts of the government actor met the test. The appeal was dismissed.
March 4, 2011
Link to Decision
Julia Wilkes
*
Wednesday, March 2, 2011
R. v. Sue, 2011 BCCA 91
The issue on this appeal was whether the trial judge’s misapprehension that the accused had testified through an interpreter was sufficient to constitute a miscarriage of justice. The accused was charged with possession of cocaine and heroin for the purpose of trafficking. He and several other men were arrested after police raided a Vancouver apartment in which he was present. A large amount of drugs was found in plain view in the kitchen, and a firearm in one of the bedrooms. Documents in his name were found in various locations in the apartment, and he was found to have a key to one of its doors. The accused testified at trial, and denied the charges. He alleged that he lived in Toronto, and was only staying with the man who rented the suite while visiting Vancouver. Although his first language was not English, he testified without the assistance of an interpreter.
The trial judge disbelieved his testimony, and, based on his connection with the apartment, found that he was in possession of the drugs. She convicted him on both counts. However, in her reasons, she erroneously stated that he had testified with the assistance of an interpreter. The appellant argued on appeal that this was a material misapprehension of the evidence that supported a setting aside of the verdict on the basis that a miscarriage of justice had occurred. The majority of the Court of Appeal agreed with the accused’s position. Because the case against the accused was strong, the case depended entirely on the trial judge’s assessment of his credibility. The majority concluded that a reasonable person outside the justice system could not consider the accused to have been properly convicted where the judge could not even recall the manner in which he testified. The judge had clearly begun her assessment of credibility from an incorrect platform, and, in the majority’s view, this created the appearance of a sufficiently flawed and unfair process so as to constitute a miscarriage of justice. The verdict was set aside, and a new trial ordered.
Lowry J.A., dissenting, felt that the trial judge had simply misspoken, and that it was unlikely that her error had affected her ability to perceive the accused’s demeanour. In any event, he was of the view that the accused’s testimony was nonsensical, and could not be rendered sensible and credible through the manner in which it was adduced. As a result, her error could not have affected the fairness of the trial.
March 2, 2011
Link to Decision
Julia Wilkes
The trial judge disbelieved his testimony, and, based on his connection with the apartment, found that he was in possession of the drugs. She convicted him on both counts. However, in her reasons, she erroneously stated that he had testified with the assistance of an interpreter. The appellant argued on appeal that this was a material misapprehension of the evidence that supported a setting aside of the verdict on the basis that a miscarriage of justice had occurred. The majority of the Court of Appeal agreed with the accused’s position. Because the case against the accused was strong, the case depended entirely on the trial judge’s assessment of his credibility. The majority concluded that a reasonable person outside the justice system could not consider the accused to have been properly convicted where the judge could not even recall the manner in which he testified. The judge had clearly begun her assessment of credibility from an incorrect platform, and, in the majority’s view, this created the appearance of a sufficiently flawed and unfair process so as to constitute a miscarriage of justice. The verdict was set aside, and a new trial ordered.
Lowry J.A., dissenting, felt that the trial judge had simply misspoken, and that it was unlikely that her error had affected her ability to perceive the accused’s demeanour. In any event, he was of the view that the accused’s testimony was nonsensical, and could not be rendered sensible and credible through the manner in which it was adduced. As a result, her error could not have affected the fairness of the trial.
March 2, 2011
Link to Decision
Julia Wilkes
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