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.

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Radostina Pavlova

Tony Drake

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Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624

This case explicitly addresses question of the jurisdiction of appeals regarding orders granting or denying access to exhibits after the criminal matters in which the exhibits were filed were completed. In it, the Ontario Court of Appeal held that the characterization of the proceedings are civil in nature and not criminal. Therefore, appeals of this type may go through the intermediate court of appeal rather than directly to the Supreme Court of Canada as per s. 40(1) of the Supreme Court Act.

Doherty, J.A. reasoned that because the criminal proceedings were fully and finally disposed of, there was no reason to characterize an application to obtain access to exhibits submitted in the criminal proceedings as a criminal matter. The proceedings were therefore civil in nature.

Furthermore, Doherty, J.A. reasoned that characterization of the proceedings as civil had a functional benefit by providing the right to appeal to an intermediate court of appeal, as opposed to the requirment of seeking leave to appeal to the Supreme Court of Canada that exists for criminal proceedings. Justice Doherty also noted that intermediate courts of appeal play a meaningful role in the resolution of individual cases and the development of a coherent and effective jurisprudence. Therefore, characterizing the proceeding as civil also enhances the effectiveness of the administration of justice.

October 5, 2011
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David Hoang
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Re Jennifer Hart, 2011 NLCA 64

In Re Jennifer Hart, the Newfoundland and Labrador Court of Appeal held that a defendant is not entitled to continuously postpone an appeal process for the substitution of counsel when there is nothing to suggest that their counsel did not act professionally. Nor does the possibility that the appellant may not be mentally fit to conduct his appeal mandate that the appeal come to a halt.

 In the case, the court examined whether the appellant’s wife could be appointed his guardian ad litem during his appeal of murder conviction. Although he was represented by counsel at his trial and at earlier stages of the appeal process, he dismissed his counsel who was appointed under s. 684 of the Criminal Code and has not sought to appoint other counsel or to request the Court’s further assistance in appointing counsel. Justice Green decided that the application to appoint Mrs. Hart as guardian as litem should be dismissed.

Justice Green assumed, but did not decide, that the Court had jurisdiction to appoint a guardian ad litem in these circumstances, but he concluded that the interests of the public and Mr. Hart in having the appeal decided in a timely manner outweighed the interests of Mr. Hart in having oral advocacy on this appeal. In light of the fact that four and a half years had passed since a notice of appeal was filed on behalf of Mr. Hart, Justice Green held that the appointment of a guardian ad litem or an order to assess Mr. Hart’s mental condition would only delay the appeal even further. Moreover, the amicus curiae, who was appointed by the Court on Mr. Hart’s behalf, had filed an extensive brief of legal argument pertaining to Mr. Hart’s appeal and Ms. Rosellan Sullivan, who was selected by Mr. Hart to be his legal counsel, filed a comprehensive factum in support of Mr. Hart’s appeal before he dismissed her as his counsel. Justice Green further noted that much of the delay in processing the appeal had resulted from Mr. Hart’s lack of cooperation in identifying counsel to act for him and his unwillingness to participate in the proceedings or make his wishes known to the Court.

October 4, 2011
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Michael Murphy
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R. v. Khan, 2011 BCCA 382

In R. v. Khan, the Court of Appeal for British Columbia commented on the obligations of counsel and trial judge in the context of a Vetrovec warning and on the evidentiary burden associated with a third-party suspect defence.

In R. v. Khela, the Supreme Court of Canada held that, in a case where the testimony of unsavoury witnesses necessitates a Vetrovec warning, Crown and defence counsel must provide the jury with examples of evidence which can, or cannot, be considered confirmatory of the tainted witness’s testimony. Justice Frankel added that counsel have a responsibility to be correct in these submissions. If evidence is mischaracterized by counsel, the trial judge has a responsibility to correct that error in his instruction to the jury. The Court further considered that, where an unsavoury witness reports to police that he has been asked to participate in a crime, and that crime later occurs, evidence that the crime did in fact occur is capable of bolstering the witness’s credibility.

The Court also held that, in raising a third-party suspect defence, the accused does not have to show evidence of the third party’s opportunity, motive, or propensity to commit the crime in order for the defence to raise a reasonable doubt in the mind of a properly instructed jury.

September 27, 2011
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Zarya Cynader & Mary Phan
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R. v. Kelsy, 2011 ONCA 605

In R. v. Kelsy, the Ontario Court of Appeal considered the the limits of permissible investigative procedures in the course of responding to a 911 call. Rosenberg J.A., writing for the court, held that the police have considerable latitude to secure the scene in such cases, but their actions are still subject to review under s. 8 of the Charter. Specifically, he held that seizure of property may be necessary to stabilize the scene of a 911 response, but any search of that property is still subject to the reasonable necessity requirements of the Waterfield doctrine.

In this case, a 911 call was made after the appellant's boyfriend had been attacked outside his apartment. The appellant and her two-year-old daughter, who had been in the apartment, stepped outside as police searched the premises. They ordered the appellant to drop a knapsack she was carrying while they secured the scene and escorted her and her daughter to safety. A subsequent search of the knapsack revealed a loaded prohibited firearm and a quantity of heroin.

The trial judge found that the search was reasonable by drawing on both doctrines of exigent circumstances and the Waterfield test. However, Justice Rosenberg held that while the two doctrines may be related or even overlap, it is preferable to keep them separate. Although he noted that investigations in response to 911 calls justify significant intrusions into privacy, he held that there was nothing in the circumstances that necessitated a search of the knapsack. The police had grounds to temporarily seize the appellant’s bags, but in this case searching them violated her s. 8 rights. In respect of the s. 24 analysis, Justice Rosenberg agreed with the trial judge’s findings that any breach of the appellant’s rights was not serious and that the police had acted in good faith. Given that “[t]his case is one of first impression and the limits of permissible investigative procedures in the course of responding to a 911 call were not entirely clear”, the police mistake was understandable and the evidence could be admitted.

September 22, 2011
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Tony Drake & Marc Gibson
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R. v. Tasew, 2011 ABCA 241

In R. v. Tasew the Alberta Court of Appeal considered the approach to be taken by a sentencing judge who identifies two alternative sentences, either of which would be fit for the offence and the offender. Slatter J.A., writing for the majority, held that in those circumstances the offender is entitled to receive the least onerous of the suitable sentences. Watson J.A. dissented in the result, but the Court was unanimous that it is not the mandate of the sentencing judge to compile a list of alternative sentences and leave it to the appellate court to select among them.

The trial judge sentenced the appellant to life imprisonment for attempted murder, but also identified a lighter alternative sentence that would be fit "in the case that someone considers the life imprisonment is inappropriate". Slatter J.A. noted that there is never one "fit" sentence, and it is possible that in a particular case several different sentences could meet the objectives of sentencing in the Criminal Code and survive appellate review. However, he held that despite the sentencing judge's good intentions, his approach was inconsistent with the proper administration of justice. Justice Slatter found that either sentence identified by the trial judge could have withstood judicial review, and imposed the alternative he identified because it was less onerous.

Watson J.A. agreed that the trial judge's approach was inappropriate and that an offender is entitled to receive the least onerous of potential fit sentences. However, he found that the alternative sentence was not fit and therefore would have affirmed the sentence imposed at trial.

August 9, 2011
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Diego Beltran, Marc Gibson & Daniel Lo
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R. v. Cunningham, 2011 ONCA 543

In this appeal the court considered whether the written reasons of the trial judge, issued more than two years after the decision was rendered, could be taken as truly reflective of the trial judge’s reasons for acquitting the respondent. Doherty J.A. held that, due to the length of time between the decision and the issuance of reasons, and other factors, the written reasons were not truly reflective of the trial judge's reasons.

Doherty, J.A. applied the principles from R. v. Teskey ([2007] 2 SCR 267), including the rebuttable presumption that the reasons reflect the reasoning that led the judge to her decision. However, he distinguished this case on the facts from Teskey, a case in which written reasons were delayed for 11 months. He also distinguished this case from R. v. Port Chevrolet Oldsmobile Ltd. 2009 BCCA 357, a case with an 18 month delay, because 25 months was a "much longer" period of time, and because the facts in Cunningham, unlike in Port Chevrolet Oldsmobile, were in dispute, increasing the risk that long-delayed written reasons would not reflect the judicial reasoning process.

August 3, 2011
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Rebecca Crangle & Kai Sheffield
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R. v. Aucoin, 2011 NSCA 64

In this case, the Nova Scotia Court of Appeal considered the scope of s. 8 of the Canadian Charter of Rights and Freedoms in relation to police officer investigations under the Motor Vehicle Act 1989 (MVA). Hamilton J.A., writing for the majority, held that it is not unreasonable for an officer to administer a pat down search after giving a ticket under the MVA if the officer believes it is necessary to have the accused sit in the police car while the officer writes the ticket. Beveridge J.A., writing in dissent, held that an investigative detention incidental to a summary offence ticket under the MVA is not lawful unless there are reasonable grounds to believe that the accused poses a flight risk.

The issue arose when the appellant was found in breach of s. 100A(1) of the MVA for having a blood alcohol content greater than zero. He was not above the legal limit for drivers, but as a newly licensed driver he was not permitted to be above zero. The officer was alone and it was dark, leaving him no place to write the ticket except in the police car. The appellant was barred by the MVA from returning to his own vehicle, so to prevent him from being able to walk away, the officer asked him to sit in the back of the police car and conducted a pat down search first.

The majority found that an investigate detention pursuant to the MVA was reasonable under the circumstances. Hamilton J.A. held that the incidental pat down search was therefore reasonable under the test from R. v. Collins and did not breach the appellant’s s. 8 rights. In dissent, Beveridge J.A. noted that any person waiting for a ticket can possibly drive or walk away. He argued that there must be reasonable grounds in the mind of the arresting offer - a more objective standard than that employed by the majority - to suspect a flight risk or an investigative detention will not be justified. Beveridge J.A. found that such grounds did not exist in this case and therefore found a breach of s. 8. He would have excluded the results of the search from evidence pursuant to s. 24(2) of the Charter.

July 13, 2011
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Marc Gibson, Jen-Yii Liew & Minsuk Kim

United States of America v. Khadr, 2011 ONCA 358

In United States of America v. Khadr, the Ontario Court of Appeal considered the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges. Justice Sharpe, writing for the court, affirmed that an extradition judge has residual discretion to stay extradition proceedings under common law if the requesting state’s conduct undermined the integrity of the judicial process. He held that this determination requires only a nexus between the state’s misconduct and the committal hearing, not a direct relationship.


In 2004 the United States paid the Pakistani intelligence agency (the ISI) half a million dollars to abduct Khadr, a Canadian citizen, in Islamabad. After 14 months, he was repatriated to Canada and the U.S. sought to have him extradited on terrorism charges. Superior Court Justice Christopher M. Speyer found that the U.S. collaborated in his extended detention, during which Khadr suffered human rights violations that were “both shocking and unjustifiable”. The extradition judge found that the U.S. should have known these violations were likely to occur and stayed the proceedings for abuse of process.


The core issue on appeal was whether granting the stay exceeded the extradition judge’s jurisdiction and usurped the function of the Minister of Justice. Justice Sharpe rejected the argument that s. 44(1)(a) of the Extradition Act deprives a court of its power to protect its own integrity by staying proceedings on the ground of abuse of process. He noted four phases to the extradition process: ministerial authority to proceed, judicial determination that the alleged conduct would warrant committal if it occurred in Canada, ministerial order of surrender, and a final judicial supervisory stage. The court in United States of America v. Cobb and United States of America v. Kwok held that ss. 6 & 12 Charter issues fall within the jurisdiction of the Minister at the third phase. The court in Cobb held further that issues which by their very nature pertain to the committal stage “including the court’s common law power to stay proceedings on grounds of abuse of process in order to protect the court’s integrity” fall within the jurisdiction of the extradition judge, not the Minister. Sharpe J.A. rejected the narrow interpretation that Cobb requires that the conduct of the requesting state have a direct bearing on the committal hearing. Finding that there was a nexus between U.S. conduct and the committal hearing, he dismissed the appeal.

May 6, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0358.htm

Tony Drake & Minsuk Kim

R. v. Russel, 2011 ONCA 303

The Ontario Court of Appeal held in R. v. Russel that judges have the jurisdiction to set the rates of compensation for assigned amicus curiae. This case involved the appeal of four criminal proceedings, in which, for various reasons, the trial judges assigned an amicus curiae and set their rates of compensation. The Attorney General argued that while a judge is able to appoint an amicus, they do not have the power to set rates of compensation.

The Attorney General argued that the courts do not have the power to set rates of compensation for amicus curiae because they have no jurisdiction to allocate public funds. The power to allocate public funds and order payment from the Consolidated Revenue Fund rests only with Parliament or the Legislature (Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.)). The principle is recognized in Ontario through s. 11.1 of the Financial Administration Act, which states that money cannot be paid from the Consolidated Revenue Fund unless the payment is authorized by an Act of the Legislature. The Court held that the power of the court to set rates of compensation for amicus and order the payment does not contravene this principle. It is recognized by both parties that the court may appoint an amicus where it is necessary to avoid an injustice, and the power to set rates of compensation is held to be corollary. Moreover, the Court found the power to order payment of amicus from public funds is authorized in the meaning of s. 11.1 of the Financial Administration Act by both the Proceedings Against the Crown Act (s. 22) and the Financial Administration Act (s. 13), both of which state that where a court properly orders payment, it may be paid from the Consolidated Revenue Fund. A court therefore has the power to set amicus and their rate of compensation and order payment from the Crown.

April 19, 2011
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Mary Phan
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R v. Parchment, 2011 BCCA 174

In R v. Parchment, the BC Court of Appeals considered the question of whether the Court can exercise section 684 of the Criminal Code, RSC 1985, c C-46, to appoint counsel to assist a self-represented, incarcerated offender prepare an appeal where the offender’s ability to do so is constrained by practical and security institutions in which the offender is housed.

The accused did not receive Legal Aid on the basis that his appeal had little merit and applied under section 684 for an appointment of counsel. At the Supreme Court, Madam Justice Huddart denied the application, regarding the accused as being able to represent himself. The accused reopened his application on the basis that he was constrained in his ability to prepare for his appeal by the limitation on computer time, inability to print material and the limited access to the law library at his place of incarceration and reopened the application for a defence counsel to assist specifically with preparing for the appeal. A Justice in Chambers does not have the authority to entertain a fresh application for the appointment of counsel without a change in circumstances. While Chiasson J.A. was not convinced there was a change of circumstances in this case, he held that he had authority to consider the application as the accused had changed relief requested from the appointment of counsel to represent him to the appointment of counsel to assist him in preparing for the hearing.

While Chiasson J.A. found that he had the authority to appoint counsel under section 684 to assist an incarcerated offender with preparing for appeal, he did not exercise that authority in this case, finding the resources afforded to the accused sufficient.

April 8, 2011
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Mary Phan
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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
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Julia Wilkes
*

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
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Julia Wilkes

R. v. Nedelcu, 2011 ONCA 143

This appeal addressed the issue of whether an individual’s evidence on his examination for discovery in a related civil action can be used in cross-examination at his criminal trial. The appellant took one of his co-workers for a ride on his motorcycle. The motorcycle hit a curb and both men were ejected. The appellant suffered only minor injuries, but his co-worker, who had not been wearing a helmet, suffered permanent brain damage. In examination for discovery in a civil action brought against him by the co-worker’s family, the appellant indicated that he had no memory of events from prior to the motorcycle ride to the following day when he woke up in the hospital. However, at his subsequent criminal trial, he gave detailed testimony regarding the motorcycle ride and the accident. The trial judge ruled that his discovery evidence from the civil action was admissible for the purpose of impeaching his credibility. He was convicted of dangerous driving causing bodily harm.

The Court of Appeal unanimously allowed the appeal, finding that it turned on the Supreme Court of Canada’s holding in R. v. Henry that prior compelled testimony was, under both s. 13 of the Charter and s. 5(2) of the Canada Evidence Act, inadmissible against the accused in further proceedings, with the exception of a prosecution for perjury, even for the limited purpose of challenging credibility. It rejected the argument by the Crown that the appellant’s evidence on examination for discovery was not compelled because he could have sought either an adjournment of the discovery or a stay of the civil action until the criminal trial had concluded. It noted that these are only granted in exceptional circumstances, none of which were present here.

The Court also held that the trial judge erred in finding that the appellant was not entitled to the protection against self-incrimination because his testimony was given in the context of a civil action which was not for the purposes of assisting the Crown. The trial judge had concluded that for this reason, the quid pro quo underlying the protection against self-incrimination was not present. In finding that this protection should not be so narrowly restricted, the Court noted that there is nothing in the s. 13 jurisprudence which suggests that it is only engaged where a witness’s prior testimony assisted the Crown, and, rather, that the section refers to “[a] witness who testifies in any proceedings”. The Court also disagreed with the trial judge’s characterization of the appellant’s giving of evidence in the civil action as furthering his own private interest, noting that he was the defendant in that action.

The Court distinguished this situation from the “implied undertaking rule” at issue in Juman v. Doucette, [2008] 1 S.C.R. 157. In that case, the plaintiffs in a tort action, a child who had suffered a seizure while at a daycare and her parents, were permitted to provide the transcript of the defendant childcare worker’s evidence given on examination for discovery to the police, for the purposes of a criminal investigation against her. The Court noted that there was no Charter issue at stake in those circumstances, as there was a distinction between the use of the evidence for investigative purposes and its use in a criminal trial if charges had been subsequently laid. They found it had no relevance to the appeal. The Court set aside the conviction and ordered a new trial.

February 24, 2011
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Julia Wilkes

R. v. Graham, 2011 ONCA 138

The issue on this appeal was whether a parole suspension due to failure to comply with conditions of parole could be challenged by way of habeas corpus where automatic review of the suspension is available under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). The appellant had been sentenced to 26 months’ imprisonment for various drug offences. Three weeks after being released into the community on parole, his parole was suspended by his parole officer’s supervisor due to a lack of compliance with certain financial disclosure obligations, failure to provide information on his associations, and his suspected involvement in drug-related conduct. Although the suspension was under automatic review pursuant to the National Parole Board (“NPB”) review process under the CCRA, the appellant also challenged it by way of habeas corpus. The Superior Court justice hearing the application declined jurisdiction on the basis that the CCRA constituted a “complete, comprehensive and expert procedure” for review of the suspension. Subsequently, the NPB affirmed the suspension and revoked the appellant’s parole, and its Appeal Division dismissed his appeal.

A unanimous Court of Appeal dismissed the appellant’s appeal. Although noting that superior courts should be reluctant to decline jurisdiction to hear a habeas corpus application, the Court recognized that the Supreme Court of Canada had concluded it was appropriate to do so in instances where “there is in place a complete, comprehensive and expert procedure for review of an administrative decision”. The Court concluded that the NPB process for administering review of parole was such a procedure. It noted that following the recommitment of an offender after a breach of parole, s. 135 of the CCRA requires that the parole officer supervisor forthwith review the offender’s case and either cancel the suspension or refer the matter to the NPB for review within a tight statutorily defined time frame (within 14 days if the offender is serving a sentence of less than two years, and within 30 days in any other case). Pursuant to that same section, the NPB must then review the case and, within 90 days, either cancel the suspension or terminate or revoke the parole.

The Court declined to follow a decision of the British Columbia Supreme Court in which it was held that there was an impermissible gap in the CCRA procedure because an inmate could be imprisoned for up to 30 days before the suspension was required to be referred to the NPB, and the NPB did not specifically have the power to review the decision for errors of law nor was it directed to inquire specifically into the merits of the parole officer supervisor’s decision. The Court held that the possibility of detention without review for up to 14 or 30 days restricted the offender’s liberty in a manner that would otherwise entitle him or her to challenge the legality of this detention by way of habeas corpus, but that this was not sufficient to take the CCRA procedure outside a “complete, comprehensive and expert procedure for review”. It also noted that, as a practical matter, a habeas corpus application would be unlikely to be determined more quickly than this time period.

The Court also noted that s. 135 of the CCRA should not be read so narrowly as to preclude the considerations raised by the appellant, and stated that the NPB will “undoubtedly” take into account the substantive reasons for the suspension as part of the overall review. It also noted that there are wide-ranging statutory grounds of appeal to the Appeal Division of the NPB, including error of law, and that the decision of the Appeal Division is reviewable by the Federal Court.

February 22, 2011
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Julia Wilkes

R. v. S.L.C., 2011 NLCA 19

The issue on this appeal was whether an acquittal on a charge of sexual assault and a conviction on a charge of sexual exploitation on the same factual allegations are necessarily inconsistent. The appellant was charged with sexual assault of the developmentally delayed daughter of his common law spouse when she was 13 and 14 years old. He was also charged with sexual exploitation (being in a position of trust or authority towards the complainant and touching her for a sexual purpose) pursuant to s. 153(1)(a) of the Criminal Code. Her evidence suggested that the assaults included intercourse and oral sex, and there was no suggestion that different types of sexual activities occurred at different times throughout the relevant time period. She was clear that she did not consent. Although the appellant denied that these incidents occurred, it was not disputed that if they had occurred, the last incident would have taken place after the complainant’s fourteenth birthday. This was important for several reasons. First, as “young person” was defined in the offence of sexual exploitation as an individual “fourteen years of age or more but under the age of eighteen”, this offence, as a matter of law, could not have been committed against the complainant before she turned 14. Second, at the time when the offence was alleged to have been committed, consent was not, as a matter of law, a defence to a charge of sexual assault where the victim was “under the age of fourteen years”. Consent was (and remains) not a defence to a charge of sexual exploitation.

The jury acquitted the appellant on the sexual assault charge (this was not appealed by the Crown), but initially could not reach a verdict on the sexual exploitation charge. However, after further deliberations, they found him guilty. The appellant appealed on the basis that the trial judge made several errors in his charge and that the verdicts were necessarily inconsistent because the evidence was such that it did not allow for segregation into discrete events that could support a conviction for one charge while allowing an acquittal on the other. He submitted that the trial judge should have withdrawn the count of sexual exploitation from the jury and directed that an acquittal be entered. The Crown conceded that the trial judge made several errors in his charge. He erroneously referred to the complainant as a “young person” throughout the entire time period covered by the indictment, even though she only fell within this definition after her fourteenth birthday. He also failed to explain that although consent could not be a defence to the incidents which occurred before the complainant’s fourteenth birthday, it could have been so with respect to those that occurred after this. He told the jury several times that consent was not an issue in the trial.

 The Crown argued that the verdicts were not necessarily inconsistent because it was possible for the jury to have acquitted the appellant of sexual assault and convicted him of sexual exploitation if 1) touching for a sexual purpose occurred after the complainant’s fourteenth birthday; and 2) the touching was nevertheless consensual, thereby negativing any sexual assault but not negativing touching for a sexual purpose (for which consent was not a defence). However, given that the trial judge had instructed the jury that consent was not an issue in the trial, and had not drawn their attention to the significance of the complainant’s birthday, the Court felt it was not reasonable to assume that the jury reasoned in the manner suggested by the Crown. It thus concluded that, in the unusual circumstances of the case, the verdicts were inconsistent, and therefore unreasonable within s. 686(1)(a)(i) of the Code.

 Despite this conclusion, however, the Court declined to enter an acquittal on the sexual exploitation charge. It was of the view that it was possible that a properly instructed jury could have convicted the appellant on the sexual exploitation charge. It thus ordered a new trial.

February 21, 2011
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Kathryn McGoldrick