PDF version: Sentencing for Spousal Sexual Violence: Different but Equal

Cases considered: R. v. D.J.D., 2010 ABCA 207; R. v. D.J.D., 2009 ABPC 216

Until 1983, the definition of rape in Canada excluded offences committed by a husband against his wife. In that year, reforms to the Criminal Code did away with the offence of rape altogether, and implemented a new scheme of sexual offences that were gender neutral and could, explicitly, be committed by one spouse against another (see Bill C-127, Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980 81 82 83, c. 125, s. 246.8). The issue of spousal sexual violence has received little specific attention in Canada since the reforms of 1983. However, the African and Canadian Women’s Human Rights Project (ACWHRP) - a project involving lawyers, activists and academics in Canada, Ghana, Kenya and Malawi - is presently studying the lessons learned from the criminalization of marital rape in Canada in the context of efforts to criminalize this form of violence in the 3 African countries. I am completing a review of case law in Canada - some 275 decisions over the past 27 years - which shows that cases of spousal sexual violence still continue to be treated differently from other sexual assault cases when it comes to issues of consent, mistaken belief in consent, evidentiary matters, and sentencing. On the latter issue, a recent case of the Alberta Court of Appeal, R. v. D.J.D., brings to light some of the considerations faced by judges when sentencing offenders for spousal sexual violence.

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PDF version: Another kind of trial delay

Case considered: R. v. Asiala, 2010 ABQB 450

Earlier this year I wrote an ABlawg post discussing s. 11(b) of the Canadian Charter of Rights and Freedoms in relation to three Alberta cases decided in late 2009 (see A policy of delay? The cost of s.11 (b) Charter violations in Alberta). Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. In my post, I noted that trial delays appeared to be a growing trend that should be closely monitored by the citizenry, particularly as they relate to government policy in allocating budgetary resources for judicial services. What I neglected to say is that sometimes delay has nothing to do with government policy, lack of judicial resources or even the tactical advantage gained by one or both sides in a case. On rare occasions delay is caused by the human element of the judicial system.

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Case considered: R. v. B.P., 2010 ABQB 204

PDF version: Lawyer, Not Intervenor

In R. v. B.P., 2010 ABQB 204, Madam Justice Strekaf denied intervenor status to the former lawyer for the appellant accused. The accused had entered a plea to a charge of possession of a weapon for a dangerous purpose. He sought to have the plea set aside on the basis of ineffective assistance by his trial lawyer, Mr. McAviney. Mr. McAviney sought intervenor status in the appeal on the basis that the argument for ineffective assistance of counsel gave him a “direct interest in the outcome of the case” (B.P. at para. 8). He suggested that the “real lis” of the appeal was between Mr. McAviney and the accused, rather than between the accused and the Crown.

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Cases considered: R. v. Legare, 2009 SCC 56; R. v. Morelli, 2010 SCC 8

PDF version: From Legare to Morelli: the prioritization of privacy

A few months ago, the Supreme Court of Canada ordered the retrial of an Alberta man acquitted on the criminal offence of luring a child contrary to s.172.1(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 in R. v. Legare, 2009 SCC 56. Writing for a unanimous Court, Justice Morris Fish rejected the trial judge’s unduly restrictive construction of the offence. Instead, the offence was classified as “inchoate” (at para. 25), making it unnecessary to recast the elements into the traditional compartments of mens rea and actus reus. The Court held that the offence of luring requires proof that the accused had the subjective intention to facilitate (not to commit) a secondary offence and that intention need not be objectively capable of facilitating the offence. The judgment gave teeth to the remedial provision designed to combat the risks of sexual exploitation of children through the Internet. Engaging in two sexually explicit chats with a 12 year old girl may be enough to establish that the accused communicated by computer for the purpose of facilitating sexual touching.

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Case considered: R. v. Ryan, 2010 ABQB 87

PDF version: Faint Hope for the Faint Hope Clause?

Parliament commenced a new session last week. When it was prorogued in December 2009, 14 bills containing amendments to the Criminal Code died on the order paper, including Bill C-36, the Serious Time for the Most Serious Crime Act. Bill C-36 would have repealed the “faint hope” clause, a provision in the Criminal Code that currently allows persons convicted of first or second degree murder to seek early release on parole after serving 15 years of their sentence. Bill C-36 had passed through three readings in the House of Commons, and was before the Liberal dominated Senate before prorogation, where the amendments to the Criminal Code were a matter of some controversy. Now, there is some indication that the government will ask the opposition to reinstate rather than reintroduce the crime bills this session. Reinstatement would require a majority vote in the House of Commons to allow the process of considering the bills to resume where it left off. The difference of course is that the Senate now has several more Conservative members, appointed during the period of prorogation. A recent Alberta case helps to illustrate the potential consequences of Bill C-36 should it become law.

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Cases considered: R. v. Rajasansi, 2009 ABQB 674; R. v. Klein, 2009 ABPC 381; R. v. Nguyen, 2009 ABPC 384.

PDF version: A policy of delay? The cost of s.11(b) Charter violations in Alberta

Back in December, CBC News reported on the stay of proceedings in the trial against Kulwinder Singh Rajasansi and Wesley Keane Sinclair. The two men were charged with sexually assaulting a young woman in October, 2004. The reason for the stay? It took the case 35 months to get to trial - that’s one month shy of 3 years.

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Case considered: Miazga v. Kvello Estate, 2009 SCC 51

PDF Version:  Prosecutorial Accountability?

In its 2002 decision in Law Society of Alberta v. Krieger, 2002 SCC 65, the Supreme Court of Canada affirmed the ability of the Law Society of Alberta to regulate misconduct by Crown prosecutors. It held, however, that where the misconduct relates to the exercise of prosecutorial discretion, the Law Society’s jurisdiction is limited to circumstances where the prosecutor has acted in bad faith. The Court reiterated that, in general, the exercise of prosecutorial discretion is entitled to deference, and may only be reviewed by the Court in circumstances of “flagrant impropriety” (Krieger, para. 49).

In its recent judgment in Miazga v. Kvello Estate, the Supreme Court has affirmed this highly deferential approach to prosecutorial discretion. The Court held that to establish liability for malicious prosecution the plaintiff must demonstrate a) that the defendant was responsible for the prosecution; b) that the legal proceedings ultimately resolved in favour of the plaintiff; c) that the defendant did not have reasonable and probable grounds for a prosecution, objectively speaking (that is, that the defendant’s professional judgment should have indicated that it was not possible that “proof beyond a reasonable doubt could be made out in a court of law” (para. 63); at this stage the prosecutor’s subjective belief in guilt is irrelevant); and, d) that the defendant acted for some improper purpose in bringing forward the prosecution - that the defendant “deliberately intended to subvert or abuse the office of the Attorney General or the process of Criminal Justice” (para 89).

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Cases Considered: Bjelland v. The Queen, 2009 SCC 38

PDF Version: Supreme Court of Canada undermines Trial Judges’ discretion under Charter s. 24(1)

In Bjelland v. The Queen, 2009 SCC 38, the Supreme Court of Canada considered the question of whether faulty disclosure by the Crown could lead to the exclusion of the evidence concerned under s. 24(1) of the Charter. The majority, in a 4-3 decision, developed a test for the exclusion of evidence under s. 24(1) and applied it in a very restrictive way. This raises concerns about their respect for the discretion of trial judges as granted by s. 24(1) of the Charter.

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Cases Considered: R. v. Kang-Brown, 2008 SCC 18,
R. v. A.M., 2008 SCC 19.

PDF Version: Privacy in Schools: Dogs, Lockers, Bodies and Backpacks

I would like to believe that teenagers are protected from all of the evils of the world when they are at school. At the same time, teenagers are growing into adults and do have rights, such as a reasonable expectation of privacy. The Canadian Charter of Rights and Freedoms (”Charter“) s. 8 provides that:

8. Everyone has the right to be secure against unreasonable search or seizure.

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Cases Considered: R. v. Warren, 2008 ABCA 436;
R. v. Schultz, 2008 ABQB 679;
R. v. Owusu, 2008 ABQB 715.

PDF Version: Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

The Sex Offender Information Registration Act, S.C. 2004, c. 10 (”SOIRA“) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA’s retroactive application was granted.

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