R v. Bogdan Dragos, 2012 ONCA 538

In The Queen v. Bogdan Dragos, the Ontario Court of Appeal upheld convictions for internet luring, sexual interference, invitation to sexual touching, and indecent exposure against a 24 year old man who had sexually explicit online exchanges with a thirteen year old girl (“E.B.”) who claimed to be fourteen.  While E.B. had attempted to act older than she was, the records of their online conversations included statements that could have led the accused to doubt her age.  After seeing his number repeatedly in her phone bills, E.B.’s mother once called the accused, told him her daughter was “way too young,” and warned that she would call the police if she saw his number again.  There was no evidence the accused had made any effort to confirm E.B. was fourteen after this conversation.  In spite of the mother’s warnings, the accused arranged a rendezvous with E.B. in a hotel room, where they engaged in sexual acts but did not have intercourse.  The central issue on appeal was whether the Crown had proved beyond a reasonable doubt that the appellant failed to take sufficient steps in all the circumstances to ascertain E.B.’s age.

The Court held that the “reasonable steps” requirement in Criminal Code provisions concerning sexual offices against children can give rise to positive obligations in some circumstances (Ewanchuk, R v. J.A.).

Broadly, the court holds that the “mistake in age” defense to internet luring in s. 172.1(4) requires the accused to have exercised the same degree of care that a reasonable person would in ascertaining the person’s age.  On the facts of this case, the court holds that the more stringent “due diligence” approach is appropriate.  The court draws a parallel between 172.1(4) and the requirement in 273(2)b that an accused take reasonable steps to ascertain a complainant’s consent before establishing a defense of mistaken belief to sexual assault charges.  The court reasons that the similar language in each provision justifies applying a “due diligence” formulation to both.

Link to Decision

Megan Andrews

*

R v. W.C.K., 2012 ABCA 185

In this case, the Alberta Court of Appeal considers whether a young  accused, who is not aware of the charge being laid against him, can give a fully informed waiver of the right to consult with counsel and a parent, adult relative or other appropriate adult chosen by the accused. In addition, the court clarifies the relationship between section 146 of the Youth Criminal Justice Act (“YCJA”) and the Charter. The court unanimously held that a waiver under section 146 of the YCJA is not valid unless an accused understands the charges against him.

The accused had been arrested for a break and enter and breach of probation. The police obtained further information implicating the accused in the dangerous driving of stolen vehicles. A detective took the young accused through a form designed to explain his rights under section 146 of the YCJA; the accused signed the form thereby waiving his right to consult. After the form was signed, he was told that he was being charged with possession of stolen property and dangerous driving.

With respect to the relationship between section 146 of the YCJA and the Charter, the court held that the two analyses have much in common, but they are not the same. The trial judge must first determine whether the requirements of section 146 of the YCJA have been satisfied; the onus of establishing a valid waiver beyond a reasonable doubt rests with the Crown. If the requirements are satisfied, the trial judge must go on to consider whether there has been a section 10 Charter breach that should attract a section 24 remedy. The accused bears the burden of establishing a section 10 Charter violation.

In this case, the court was of the view that the accused “was taken through a very important part of the process without knowing the charges against him, and this… taints the entire process.” The court held that a young accused could not give a fully informed waiver under section 146 of the YCJA without knowing the charges against him. It also stated that the standard for a valid waiver of the right to counsel is very high. In the result, the Crown’s appeal was dismissed.

Link to Decision

Brandon Walker

*

Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342

In Centre for Addiction and Mental Health v. Ontario, the ONCA considered the interpretation of ‘consent’ in the context of s. 672.62 of the Criminal Code, which provides that – where an accused has been found unfit to stand trial and has been ordered to undergo treatment according to s. 672.58 – the consent of the person in charge of the hospital in question is required. Justice Blair overturned the hearing judge on the question of whether the consent requirement had been met in the circumstances – it had not – and further considered the constitutionality of s. 672.62, an issue before the court for the first time on appeal. Blair J.A. held that the s. 672.62 requirement complies with society’s notions of procedural fairness and is not unconstitutionally vague or arbitrary.

Mr. Brian Conception, accused of sexual assault, was found mentally unfit to stand trial. Justice Mary Hogan of the Toronto Mental Disorder Court issued a treatment order requiring Mr. Conception to submit “forthwith” to 60-days’ anti-psychotic treatment at Oak Ridge, a facility affiliated with the Centre for Addiction and Mental Health (CAMH), notwithstanding the hospital’s declared inability to accommodate him until six days later. CAMH appealed the decision, arguing it had not given the requisite consent.  

The decision clarifies the law on what Blair J.A. called “a recurring theme” in Ontario courts: the tension between judges’ desire to avoid interim jail time for mentally unfit accused on their way treatment, and the hospitals’ refusal to give consent due to bed shortages. Recognizing the hearing judge’s legitimate exasperation with a system suffering a scarcity of resources, Blair J.A. allowed the appeal. He accepted the hospital authorities’ power to determine priority of treatment in an environment where, among those patients waiting for a bed, there might well be others like Mr. Conception. Noting that “[s. 672.58] orders are… not intended to be… for the medical benefit of the unfit accused in the broad sense”, Blair J.A. held that the s. 672.62 consent requirement does not offend principles of fundamental justice. The decision makes the point that policy decisions concerning the allocation of psychiatric hospital resources are beyond the competence of the courts.

Link to Decision

Radostina Pavlova

Tony Drake

*

R v Pham, 2012 ABCA 203

In this case, the Alberta Court of Appeal considered whether minor variations in a sentence should be granted for convicted persons with a prior criminal record where the accused may be subject to proceedings under the Immigration and Refugee Protection Act  (“IRPA”).  The Court held that where persons have a prior criminal record, minor variations of a sentence due to considerations under the IRPA do not apply.

In this case, the appellant had been earlier convicted of two drug offences. He was found guilty of unlawfully producing and possessing marijuana for the purposes of trafficking and was sentenced to a prison term lasting two years. He appealed on the basis that a sentence of two years had the unintended consequence of losing his right to appeal a deportation order under the IRPA and asked for a sentence variation to two years less a day. The prevailing practice has been to reduce the sentence of an appellant in cases where (1) the requested reduction is minimal and therefore will not render the sentence unfit, and (2) maintaining the original sentence carries with it unintended or collateral consequences. This approach has been fairly consistent across the country.

The Alberta Court of Appeal held that even minor variations should not be granted in cases where the appellant has a previous criminal record. The majority states, “[I]t would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.” In dissent, Justice Martin would have allowed the appeal based on the Crown's willingness to concede to a sentence of two years less a day (based on the prevailing practice).

Link to Decision

Brandon Walker

Mary Phan

*

R v Nickel, 2012 ABCA 158

This was a successful Crown appeal of the sentence given to an offender convicted of 
aggravated assault and failure to provide necessaries of life.  The charges stemmed 
from an incident where the defendant placed the feet of his nine-month-old 
daughter in recently boiled water and caused third degree burns. The sentencing 
judge, following R v Evans (1996 182 AR 21), categorized the defendant as an
unskilled parent who failed to appreciate the potential consequences and sentenced
 him accordingly. The ABCA finds that the sentencing judge erred and substitutes its own assessment of a fit sentence. Rejecting the Evans framework, the court outlines a process of analysis of moral culpability as relevant to sentencing.

In rejecting the framework provided in Evans, the court refrains from articulating another fixed framework for
sentencing in “child abuse” cases. Instead, they outline a process of analysis
 beginning with an assessment of the risk and materialization of harm to the child,
 and the level of the offender’s culpability. Evans suggested differentiation between 
intended and foreseeable harm and this judgment echoes that, but as a starting 
place for consideration rather than a rigid divide. Other considerations including 
the offender’s personal circumstances should be relevant, but this analysis removes
 Evans’ heavy emphasis on the offender.



Justices Martin and O’Brien dissented on the sentence imposed in this particular
case, but not on the rejection of Evans and the proposed new set of principles.

Link to Decision

Sarah Rankin
*

Mihalyko (Re), 2012 SKCA 44

The Saskatchewan Court of Appeal considers s. 7(1) of the Seizure of Criminal Property Act (“the Act”), which states that “subject to section 8, and unless it clearly would not be in the interests of justice, the court shall make an order forfeiting property to the Crown if the court finds that the property is proceeds of unlawful activity or an instrument of unlawful activity.” The Court held that once the Director has established the criteria entitling an order for forfeiture, the burden shifts to the owner to prove, on a balance of probabilities, that an exemption should be applied.

The respondent’s (defendant’s) vehicle and cell phone were seized following an incident where the respondent sold two Oxycontin tablets to an undercover police officer in order to obtain $60 to put gas into the vehicle. The chambers judge found it would not be in the interests of justice to permit the forfeiture of the respondent’s property and so rejected a forfeiture order. The Director appealed. The Court of Appeal adopted the reasoning in Ontario (Attorney General) v. 1140 Aubin Road (Windsor), 2011 ONCA 363, in affirming that the onus lies with the owner to prove, on a balance of probabilities, that an exemption should be applied. The Court found the exemption was improperly applied in this case, as the motions judge failed to adequately consider the “clearly” in the wording of 7(1), and the importance to the larger interests of society of upholding the forfeiture of a vehicle used to traffic drugs. There was no strong evidence that demonstrated the forfeiture was manifestly harsh, unjust or inequitable.

Link to Decision

Sarah Rankin

*

R v. Pelech, 2012 ABCA 134

In this case, the Alberta Court of Appeal considers whether a trial judge must have within his or her contemplation the rule from Hodges when considering evidence of impaired driving. The rule in Hodges requires that a trial judge consider whether impairment by alcohol is the only rational inference that can be drawn from the evidence. The court, in a unanimous decision, held that a trial judge is not required to have the rule from Hodges in his or her contemplation when evaluating evidence of impaired driving.

The accused was charged with impaired driving after an officer observed the accused driving with his vehicle lights out after leaving a drinking establishment. The accused drove through three stop signs without attempting to brake and was subsequently pulled over. While the rule remains a valid means for ensuring the doctrine of proof beyond a reasonable doubt is properly applied to the facts, it is not the only device for doing so. The only true requirement is that the trial judge is satisfied beyond a reasonable doubt that the accused is guilty of impaired driving. In reaching its decision, the Court refers to R v. Griffin, 2009 SCC 28, wherein the Supreme Court of Canada affirmed its departure from any legal requirement of a “special instruction” with respect to circumstantial evidence. The Supreme Court further stated that the only requirement is that the trier of fact be satisfied, beyond a reasonable doubt, that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty (see Griffin, para 33). 

Link to Decision

Brandon Walker

*

P.A.L. v. Alberta (Criminal Injuries Review Board), 2012 ABCA 177

In P.A.L. v. Alberta (Criminal Injuries Review Board), the Alberta Court of Appeal ruled on a reasonable approach for victim compensation awards in the context of multiple psychological injuries under the Victims of Crime Act, RSA 2000, c V-3 (VOCA). The purpose of the VOCA is to ensure that victims promptly receive financial benefits for injuries suffered rather than awards for overall functioning. Therefore victims can, and should be compensated for individual injuries. Appeal allowed. 

The two appellants were sexual assault victims, diagnosed with three different and distinct psychological disorders arising from the trauma. Each appellant’s psychologist assigned a Global Assessment of Functioning (GAF) Score of 50 or less to the appellants. A GAF score is a measure of a person’s ability to function in their day-to-day life, taking into account any mental health concerns that may hamper functioning; it is also a necessary part of the VOCA formula for determining victim compensation. Where there is more than one mental disorder present, a GAF score cannot be individually associated with any one disorder. Based on expert evidence surrounding the victims' GAF scores, the Board ruled that the victims were not eligible for three separate awards under the VOCA for the three different and distinct psychological injuries suffered.

The Court of Appeal stated that focussing primarily on the GAF score in determining the award is inconsistent with the social welfare purpose of the legislation. Where legislation has a social welfare purpose, it should be construed liberally to advance the benevolent purpose of the legislation. Where there are ambiguities, it should be resolved in favour of the claimant.  The purpose of the VOCAis to ensure that victims promptly receive financial benefits for injuries suffered rather than awards for overall functioning. Therefore, victims can, and should be compensated for individual injuries. 

Link to Decision

Elizabeth Severinovskaya
*

R. v. D.J.W., 2011 BCCA 522

In this case, the British Columbia Court of Appeal held that the religious freedom protections in the Charter of Rights and Freedoms do not protect a parent from criminal prosecution, in a case in which a father circumcised his son himself for religious reasons, and in defiance of doctors' advice, harming the child.

The accused became convinced that his son must be circumcised “to make things right with God”, but doctors refused to perform the procedure for medical reasons. The accused attempted to circumcise his four-year- old son in the kitchen of his home. The attempt injured the boy and he had to undergo an operation to prevent disfigurement and functional impairment. The accused was convicted of criminal negligence causing bodily harm, contrary to s.221 of the Criminal Code. He was acquitted of aggravated assault (s.268(2)) and assault using a weapon (s. 267(a)). The Crown appealed the acquittals and the accused appealed the conviction.

The accused argued on appeal that “freedom of religion” was a defence to the charges against him. The Court of Appeal held that the Criminal Code provisions did not infringe the accused’s religious freedom because his religion did not demand that the circumcision be performed by the accused, nor did it demand that the circumcision be performed immediately so that the accused had no alternative than to do it on his own. The accused also argued that since a parent may consent to a circumcision, performed by a person who is not a doctor, on behalf of their child, they may also perform a circumcision on their child personally. The Court of Appeal held that a parent may only consent to have force applied to their child where the force is reasonable in the circumstances and in the child’s best interests. Performing this operation in such a dangerous manner as the accused employed here was unreasonable. It was not in the child’s best interests.

 December 22, 2011
Link to Decision

Meagan Jemmett
*

R. v. R.D.R., 2011 NSCA 86

In R. v. R.D.R. the Nova Scotia Court of Appeal held that the replacement of the Youth Offenders Act (YOA) with the Youth Criminal Justice Act (YCJA) did not change existing jurisprudence nor did it result in a special constitutional guarantee for young persons.

Beveridge J.A., writing for the court, held that the YCJA did not alter the proper approach to evaluating whether a young person's Charter right to be tried within a reasonable period was violated and rejected the argument that young offenders should be treated differently from adults in that respect.

The appellant, convicted in Youth Court, challenged the decision by the trial judge that his right to be tried within a reasonable period of time had not been infringed, arguing that the YCJA granted young persons "special guarantees" to be tried without delay. The appellant also submitted that previous jurisprudence holding that the YOA did not grant a constitutional guarantee to trial without delay should be disregarded. Beveridge J.A. disagreed, stating the YCJA did not create new requirements. Rather, the court held that the term "promptness and speed" in s. 3 of the YCJA must be read in context, and procedural fairness to the state and the accused take precedence over speed. In the case at bar the appellant was partly responsible for the delay, and Justice Beveridge held that the long period until trial did not violate the appellant's Charter rights.

September 27, 2011
Link to Decision

Adrienne Ho
*

R. v. Woodward, 2011 ONCA 610

In R. v. Woodward, the defendant challenged both his conviction and length of sentence in relation to the offence of luring by means of a computer system under (as it was then) s.172.1(1) of the Criminal Code. Writing for the court, Moldaver J.A., dismissed the appeal on both grounds and provided guidance as to the meaning of “computer system” under s.342.1(2) of the Code and the sentencing of offenders who engaged in the luring of children over the internet.

The appellant argued that text messaging via cell phone did not fall within the actus reus required under s. 172.1(1). Under that section a person must communicate with another by means of a computer system within the meaning of s. 342.1(2) of the Code. The court rejected the appellant’s argument, holding that text messaging required a “logic” and “control” function preformed by telephone networks to deliver messages between phones. This process amounted to a computer system. Supporting this finding, the court pointed out that Parliament has made two attempts to change the highly technical definition of computer system in the Code.

 The court also rejected the appellant’s argument that his sentence was in excess of the usual range of those convicted of similar offences. Moldaver J.A., noted that the decision of Rosenburg J.A. in R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.) has been incorrectly interpreted as setting the range of sentencing of 12 months to 2 years for offenders who engage in online luring. Instead, the court determined that internet luring was a pervasive social problem warranting stiffer sentences in the range of 3 to 5 years in order to meet the goals of deterrence, denunciation and separation of society. Moldaver J.A. then held that when considering a sentence in this type of case, “ the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.”

September 26, 2011
Link to Decision

Heather Palin
*

R. v. K.P., 2011 ABCA 233

In R v. K.P., the Alberta Court of Appeal ruled on the validity of a City of Calgary bylaw mandating minimum fines for both adult and young offenders. Justice Rowbotham held that the mandatory minimum fine provisions are inconsistent with the Youth Justice Act ("YJA") as s. 15(5) of that Act dictates that community service and/or probation may be imposed instead of a fine where appropriate.

The issue arose in the context of a 13 year old whom, after being caught applying graffiti to various buildings, was given the mandatory minimum fine of $500. The Court of Queen’s Bench upon appeal ruled that the YJA “completely and exhaustively occupied the legislative field” so there was no room for Calgary City to council to impose a mandatory minimum fine. Justice Rowbatham came to the same conclusion. The appeal was dismissed and the case remitted to the youth court judge for sentencing according to the YJA sentencing scheme.

July 29, 2011
Link to Decision

Sam Golder & Dominik Swierad
*

R. v. Kokopenace, 2011 ONCA 498 and 2011 ONCA 536

In R. v. Kokopenace, the Ontario Court of Appeal is considering allegations of systematic underrepresentation of Aboriginal on-reserve residents in Ontario jury rolls.  A final decision on this issue is still pending, but the Court issued two significant preliminary rulings in 2011. First, it concluded that interveners could not be added as parties to a criminal case, but instead granted two applicants status as friends of the court.  Second, it separated the case into two parts, giving no effect to the grounds of appeal in the first part, but adjourning the second while remaining seized of the appeal.  It dismissed three grounds of appeal not related to the composition of the jury, but ordered that the jury issue be heard separately at a later date.

On the first issue, O'Connor A.C.J.O. found that "(i)n most instances there is no room to add 'strangers' as parties to a criminal appeal." Justice O'Connor held that it would be inappropriate and inconsistent with the Canadian criminal justice system to allow external parties to make submissions on substantive grounds or have rights of appeal. However, he concluded that Nishnawbe Aski Nation (NAN) and Aboriginal Legal Services of Toronto (ALST) have resources and experience that would assist the court in fully developing the record, whereas individual litigants such as the appellants do not. Therefore Justice O'Connor decided to grant NAN and ALST status as friends of the court and dispense with the usual blanket limitation that confines interveners to the existing record. He held that their participation may include cross-examining witnesses or introducing relevant evidence not tendered by the parties, but was not prepared to grant them unfettered participation.

LaForme J.A., writing for the court on the second issue, concluded that the abnormal procedure was within the Court's inherent jurisdiction to control its own process. Justice LaForme acknowledged that his decision to reject part of an appeal but adjourn the remainder to a later date was "perhaps an unusual one," but held that the merits of the appeal had not yet been fully argued.

July 6 / July 29, 2011
Link to 2011 ONCA 498
Link to 2011 ONCA 536

Marc Gibson & Sam Golder
*

R. v. Goulet, 2011 ABCA 230

In this case, the Alberta Court of Appeal held that, in assessing whether the conduct of the accused gave rise to "endangerment" and therefore constituted a "serious personal injury offence" under the Criminal Code, the analysis focuses on the entire context in which the conduct occurred, and not only contextual factors relating to the conduct of the accused.

The respondent, while driving impaired, crashed into the complainant’s
 vehicle and seriously injured the complainant. At the time of the
 crash, many people were in the surrounding area and could have aided 
the injured complainant. The respondent fled the scene of the accident but was
 quickly apprehended by police. She was convicted of having left the scene of an accident and given a 12 month conditional sentence. Under s.752(a)(ii) of the Criminal Code, an indictable offence involving "conduct endangering or likely to endanger the life or safety of another person..." constitutes a "serious personal injury offence." Under s.742.1 of the Criminal Code, in light of amendments made in 2007, conditional sentences are not available for serious personal injury offences. Based on this statutory language, the Crown argued on appeal that the respondent was not eligible to receive a conditional sentence.

Reviewing the relevant caselaw, which revealed two conflicting streams of jurisprudence on the point, Justice Slatter held that when assessing the existence of endangerment arising from the conduct of the accused leaving the scene, it is relevant to look not only at the accused’s conduct but also at the entire context in which the conduct occurred. Here, there was a large number of other people
 at the scene to aid the injured driver, so there was no 
endangerment. The respondent's offence was, therefore, not a "serious personal injury offence," and the respondent was eligible to receive a conditional sentence.

July 26, 2011
Link to Decision

Sam Golder & Kai Sheffield
*

R. v. Stevens, 2011 ONCA 504

In R. v. Stevens, the Ontario Court of Appeal considered the application of s. 8 of the Charter 
to the search and seizure of gun cases after a warrantless search of a rented apartment by police officers. In finding that the search and seizure violated s. 8, the court distinguished the gun cases themselves from their contents for the purposes of s. 8, rejecting the application of the "plain view" doctrine to the contents of the gun cases and finding no exigent circumstances to justify the search.  Armstrong J.A., writing for the court, excluded the evidence under s. 24 and reversed the appellant's conviction for careless storage of a firearm and ammunition.

The case arose when the appellant's landlord inadvertently commenced the eviction process against the appellant, following a dispute over rent. In enforcing the mistaken eviction, sheriff’s officers entered the apartment and discovered two gun cases. They called the police, who opened the cases without a search warrant and discovered improperly stored guns and ammunition inside.

Finding no cases directly on point, Justice Armstrong discussed reasonable expectation of privacy in relation to precedents that excluded evidence found during warrantless searches of a hotel room closet and a bus terminal locker, respectively.  He held that a mistaken eviction order does not diminish an individual’s expectation of privacy in his own home; nor does a landlord’s duty to take inventory of personal property in the course of an eviction justify the opening of gun cases.  Justice Armstrong distinguished the case from R. v. Wint, where the Ontario Court of Appeal found no s. 8 violation when police searched an impounded car, reasoning that the privacy interests in the contents of an apartment home in the custody of the landlord are greater than those in the contents of a car in the custody of the police.  In disagreement with the courts below, Armstrong JA found no “exigent circumstances" to justify a warrantless search of the gun cases. He drew a distinction between the right to be present and the right to search, finding that the police had the former, but not the latter.  Additionally, Justice Armonstrong rejected the Superior Court's application of the “plain view” doctrine, noting that while the cases were in plain view, the guns were not.

July 12, 2011
Link to Decision

Tony Drake, Marc Gibson, Kai Sheffield

R. v. Dippel, 2011 ABCA 129

In R. v. Dippel, the Alberta Court of Appeal ruled that an unconscious action that has the effect of indicating consent to another party cannot constitute actual consent according to s. 273.1(1) of the Criminal Code. The accused in the case was charged after he joined the complainant in a bed where she was asleep. He attempted to initiate a sexual encounter and she lifted her arm unconsciously.  The trial judge found that he honestly perceived this as an invitation for him to fondle her. He then digitally penetrated her at which point she awoke and fled the room. The trial judge concluded that the complainant would not have consented with the accused.


The Court rejected the defence of honest mistaken belief in consent, holding that such a belief could only have arisen after the initial sexual contact.  The Court found that the requirement to take reasonable steps to ascertain whether the complainant was consenting had not been met by the accused. Specifically, it found that ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The Court allowed the Crown's appeal and found the accused guilty.  While the Court was preparing its decision, the Supreme Court of Canada released R. v. J.A., which confirmed the Alberta Court of Appeal's holding here that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act.

June 14, 2011
http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2011/2011abca0129.pdf

Leonard Elias & Dominik Swierad

T. (R.A.) v. British Columbia (Attorney General), 2011 BCCA 263

In T. (R.A.), the British Columbia Court of Appeal held that a person is "subject to a sentence” within the meaning of s. 490.02 of the Criminal Code when they are subject to a lifelong firearms ban in accordance with s. 109 of the Criminal Code.

The appellant was convicted of sexual assault in 1994 and sentenced to both a prison sentence and a lifelong firearms ban. After the completion of the appellant’s prison sentence, Parliament passed the Sexual Offender Information Registration Act. It required the registration and reporting of individuals convicted of certain crimes such as sexual assault. The Act only applies retrospectively if the offender was still “subject to a sentence.” The appellant challenged that the Act did not apply to him as the prohibition did not qualify as a sentence. Saunders J.A. rejected this argument, finding that other areas of the Criminal Code treat a firearms prohibition as a sentence, and drawing support from a previous sentencing case, R. v. Ferguson.

June 8, 2011

Link to Decision

Sam Golder, Kai Sheffield & Dominik Swierad

R. v. Roncaioli, 2011 ONCA 378

In R. v. Roncaioli, the Ontario Court of Appeal clarified the approach the sentencing judge should take in determining the appropriate sentence where the basis of the jury's verdict is ambiguous. Laskin J.A., writing for the court, held that sentencing judge must sentence according to his or her independent determination of the facts, consistent with the jury's verdict.

The appellant was a retired medical doctor who was convicted of manslaughter in the death of his wife and sentenced to seven years' imprisonment. At trial, it was unclear whether the jury had found him guilty based on criminal negligence or an unlawful act, but the trial judge sentenced the appellant on the basis of her own finding that an aggravated assault had taken place. 

The appellant referred to previous Ontario Court of Appeal decisions R v. Cooney and R. v. Craig to argue that the sentencing judge is "obligated to give to the convicted accused the benefit of the doubt regarding the basis on which he was convicted by the jury".  Because the basis of the jury's verdict was unclear, he argued that he should therefore have been sentenced based on the less morally blameworthy charge of manslaughter by criminal negligence. Laskin J.A. found the previous jurisprudence inconsistent with Supreme Court of Canada decisions R. v. Brown, R. v. Tempelaar and R. v. Ferguson. He affirmed the trial judge's factual findings and grounds for the sentence imposed, including the necessity of denouncing the abuse of a doctor's special skills "to cause deadly harm." After dismissing the conviction appeal, Justice Laskin dismissed the sentence appeal as well.


May 13, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0378.htm


Webnesh Haile & Minsuk Kim

R v. Ryan, 2011 NSCA 30

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
*

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