PDF version: Blow over? Think twice before blaming it on the flu. 

Decision considered: R v Kasim, 2011 ABCA 236.

The Respondent claimed to have drunk no more than 3 or 4 beers between 7 and 8:30 p.m. on September 18, 2008. He was behind the wheel soon after. At about 9 p.m. he complied with a lawful demand for an Intoxilyzer breath sample and the two samples he provided measured 100 mg percent, or 20 mg percent over the legal maximum of 80 mg of alcohol in 100 millilitres of blood. At trial the Respondent testified that his body temperature was elevated as he was suffering from the flu or a fever that day. This testimony was corroborated, and the trial judge accepted it. The Respondent’s expert witness, Dr. Malicky, testified that given the Respondent’s elimination rate, and an elevated body temperature, “his blood alcohol level at the time should have been approximately 36 mg percent if he had three containers of beer, and 60 mg percent if he had four containers of beer” (R v Kasim, [2010] AJ No 969, para 64). The Respondent argued that the test results were therefore askew and that raised a reasonable doubt as to whether he the violated the Criminal Code (RSC, 1985, c C-46). Both the Provincial Court judge and Queen’s Bench summary conviction appeal judge found for the Respondent. By consent order the Crown appealed to the Court of Appeal on a single issue: “The summary conviction appeal judge erred in law in her interpretation of s. 258(1) (c) of the Criminal Code” (CA decision at para 7). These Criminal Code provisions set out presumptions that subject to certain time and other limitations Intoxilyzer readings of blood alcohol are accurate. The provisions also limit permissible challenges to the presumed accuracy.

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PDF version: The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

Legislation considered: Bill C-19, An Act to amend the Criminal Code and the Firearms Act (”Ending the Long-gun Registry Act”), 41st Parliament, 1st Session

December 6, 2011 was the National Day of Remembrance for Violence Against Women, which marked the 22nd anniversary of the Montreal Massacre. The Globe and Mail’s Jane Taber indicated that “government MPs [were] purposely shut out from officially speaking at and attending an event on Parliament Hill to honour the 14 young women who were shot dead in 1989,” because the government is about to repeal the long gun registry (see Bill C-19). The Montreal Massacre was one of the pressure points for the registry, as was the use of firearms in crimes of domestic violence. When the Alberta government challenged the constitutionality of the registry, which was implemented via the Firearms Act, SC 1995, ch 39, as an amendment to the Criminal Code, the Supreme Court found that it was properly enacted under the federal government’s criminal law powers (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 SCR 783 at paras 43, 59). The enactment of the law creating the registry was constitutional; but is its repeal unlawful? I think an argument can be made that the federal government’s abolishment of the long gun registry is unconstitutional on Charter grounds, as well as contrary to international law.

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PDF version: Pleading Fairly 

Case considered: R. v. Nixon, 2011 SCC 34

Introduction

In its June 3, 2011 Throne Speech, the Canadian government announced its plan to introduce an omnibus crime bill. Based on the limited information provided in the Speech, it appears that this legislation will increase the sanctions for some crimes, and eliminate judicial discretion on some matters of criminal sentencing:

Our Government will move quickly to reintroduce comprehensive law-and-order legislation to combat crime and terrorism. These measures will protect children from sex offenders. They will eliminate house arrest and pardons for serious crimes. They will give law enforcement officials, courts and victims the legal tools they need to fight criminals and terrorists. Our Government will continue to protect the most vulnerable in society and work to prevent crime. It will propose tougher sentences for those who abuse seniors and will help at?risk youth avoid gangs and criminal activity. It will address the problem of violence against women and girls (Throne Speech, p. 12).

The Throne Speech emphasized that the purpose of this legislation would be to protect “the personal safety of our citizens” and to “place the interests of law-abiding citizens ahead of criminals” (Throne Speech, p. 12).

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PDF version: Consciousness and Consent in Sexual Assault Cases

Case considered: R. v. J.A., 2011 SCC 28

Can a person consent in advance to sexual activity that occurs while she is unconscious? A majority of the Supreme Court of Canada recently answered this question in the negative in R. v. J.A., 2011 SCC 28, taking the same approach as a majority of the Alberta Court of Appeal in R. v. Ashlee, 2006 ABCA 244. There were strong dissents in each case, however, indicating that the resolution of this issue is far from obvious for some judges. Also interesting is that judges on both sides of the issue frame their analyses in terms of the sexual autonomy of the complainant, and see their decisions as consistent (or at least not inconsistent) with the leading Supreme Court of Canada authority on consent, R. v. Ewanchuk, [1999] 1 S.C.R. 330. This comment will discuss the J.A. and Ashlee decisions and assess the merits of the different reasons for decision in light of the applicable statutory provisions and case law and the courts’ attention (or lack thereof) to context.

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PDF version: Is R v Gomboc really only about a homeowner’s expectation of privacy or is there more to it? 

Case commented on: R. v. Gomboc, 2010 SCC 55

The late November 2010 decision of Canada’s Supreme Court in R. v. Gomboc has come to represent one of two things in the divergent views of its critics and supporters. For critics from a civil libertarian perspective, our highest court’s approval of a power company’s act, pursuant to a warrantless police request, of monitoring a homeowner’s electrical usage and then providing that information to police engaged in a criminal investigation represents yet another example of a culture of authoritarianism that seems to be creeping into Canada’s judiciary. On the other hand, for the “law and order” crowd, especially those who see warrants as pesky obstacles to simply letting the police get on with it and just do their jobs, homeowners have no reasonable expectation of privacy over information about their electrical usage, so the Supreme Court’s decision that an authorizing warrant was not required is spot on. Furthermore, even if there was a breach of any privacy interest a person may have here, then it was so trivial that any fuss over it is unwarranted.

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PDF version: Sliding Down the Slippery Slope

Case considered: R. v. Loewen, 2010 ABCA 255

In the area of national security, the years since the attacks of September 11, 2001, have been characterized by an increased dominance of state power in terms of investigation, interrogation, and detention powers, often at the expense of individual liberties. This dominance has become entrenched in some respects in Canada, as well as in a number of other democratic nations, and in many ways has become so familiar that it arguably represents a new normal, rather than an extraordinary situation.

It is my belief that, while this shift has attracted most attention in the national security arena, and is primarily advanced in that arena, the increasing acceptance that individual rights must give way to state security interests sets the stage for the proverbial slippery slope, lending credibility to arguments for the erosions of individual rights in more traditional criminal matters as well. As an example, the increasing tendency of national governments to allow for warrantless searches in cases in which terrorism is alleged may arguably have served as an undercurrent for the recent decision of the Supreme Court of Canada in R. v. Gomboc, 2010 SCC 55 (overturning a ruling by the Alberta Court of Appeal and upholding a warrantless request by Calgary police to an electrical company to install a recording device, designed to measure electrical usage, to determine whether the person under investigation was growing marijuana).

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PDF version: Domestic Violence and Provocation: The Door Remains Open 

Case Considered: R. v. Tran, 2010 SCC 58

The Supreme Court’s most recent decision, R. v. Tran, is an Alberta case I commented on at the Court of Appeal level. Tran involves a man who killed his estranged wife’s lover and slashed his wife’s face, causing her permanent injury. The issue in this case was whether there was provocation arising from the fact that the accused found his wife in bed with her lover, such that he should be convicted of manslaughter rather than second degree murder. In a decision authored by Justice Louise Charron, the Supreme Court agreed with the Alberta Court of Appeal that provocation was not made out in the circumstances of the case, and upheld the accused’s conviction for murder. While this is a positive outcome, in my view the Court did not go far enough in contextualizing this case as one involving domestic violence, nor did it foreclose future uses of the provocation defence in this context.

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PDF version: Multiple Sexual Offence Proceedings and the Disclosure of “Records” under the Criminal Code

Case considered: R. v. Leykin, 2010 ABQB 631

Ruslan Leykin was charged with a number of sexual offences relating to N.W, who is also the complainant in a second sexual assault case involving a different accused. Leykin sought access to records in the possession of the Crown in relation to the second case, and argued that the governing procedure was that in R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Crown argued that the proper procedure for determination of production of records was that set out under ss.278.1 to 278.9 of the Criminal Code, R.S.C. 1985, c.C-46 (”the production provisions”). In a short but important decision, Justice June Ross of the Alberta Court of Queen’s Bench agreed with the Crown, holding that the production provisions of the Criminal Code apply to records in the possession of the Crown in relation to a separate sexual assault proceeding. (more…)

PDF version: Between a Rock and a Hard Place: An Unjust Ending to an Unjust Process for Omar Khadr

Case Considered: United States v. Khadr (Mil. Com. Oct. 25, 2010) (plea agreement, not yet published)

Confirming speculation that has been circulating for some time, Omar Khadr pled guilty on October 25, 2010, to all charges before a U.S. Military Commission proceeding. Specifically, the charges to which he pled included murder in violation of the laws of war, attempted murder in violation of the laws of war, providing material support to terrorism, conspiracy, and spying. (U.S. Department of Defense, News Release, Detainee Pleads Guilty at Military Commission Hearing (25 Oct. 2010)(”DoD News Release“). Canada’s role in the agreement remains murky amongst conflicting reports as to whether that government has agreed to Khadr serving seven years of an eight-year sentence in Canada. (Bryn Weese and Brian Lilley, After one year, Canada will welcome back Khadr (25 Oct. 2010), Toronto Sun; see also Carol Rosenberg, Canadian pleads guilty to war crimes at Guantánamo court (25 Oct. 2010), Miami Herald). In spite of statements by Dennis Edney, one of Khadr’s Edmonton-based lawyers, that Khadr accepted the plea deal because Canada agreed to allow him to serve the last seven years of his term in Canada, Canadian officials have not publicly confirmed this to be the case, continuing to insist that the matter is between Khadr and the United States. Public Safety Minister Vic Toews stated, after the agreement was announced, that Khadr, like any other Canadian imprisoned in the United States, has a right to apply for repatriation to serve the remainder of his sentence in Canada. (Steven Chase, Khadr has ‘right to apply’ for repatriation: Public Safety Minister (25 Oct. 2010), The Globe and Mail).

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PDF version: Is there a doctor in the house? Challenges in the assessment process of s.752.1 of the Criminal Code 

Case considered: R. v. Gow, 2010 ABQB 564

In September, Mr. Justice V.O. Ouellette of the Alberta Court of Queen’s Bench gave reasons in the trial of R. v. Gow. The key issue in the case was whether the court had jurisdiction to grant an extension for an assessment pursuant to s.752.1(1) of the Criminal Code of Canada, R.S.C. 1985, c.C-46 in the context of an application for long-term offender status. Justice Ouellette determined that the court could not grant an extension as the language of the section, when considered in the context of the amendments made to the Code in 2008 and other provisions of the Code, was clearly mandatory. However, a survey of other cases dealing with s.752.1 revealed some interesting interpretations of the provision and demonstrated that Canadian courts have read parts of this section as being substantive rather than procedural. This allows for a certain amount of wiggle room depending on the circumstances surrounding any delay in the assessment process.

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