Author: Drew Yewchuk Page 19 of 20

B.A. (UAlberta) J.D. (UCalgary) LLM (U.B.C.) Drew was a full-time staff lawyer with the University of Calgary's Public Interest Law Clinic from 2018-2022. He is now an PhD student at the Peter A. Allard School of Law. His research focuses on administrative secrecy, access to information law, species at risk, resource law, and environmental liabilities.

By: Drew Yewchuk

PDF Version: The Appointment of Justice Rowe

Event Commented On: Nomination of the Honourable Malcolm Rowe for Appointment to the Supreme Court of Canada

On October 17, 2016 Prime Minister Trudeau nominated Justice Malcolm Rowe for appointment to the Supreme Court of Canada. Justice Rowe was a trial judge in Newfoundland and Labrador for two years before being appointed to the Court of Appeal of Newfoundland and Labrador in 2001.

The first section of this post describes the recent changes to the Supreme Court appointment process, as Justice Rowe is the first nomination under the new process. The second section of this post reviews Justice Rowe’s application for the position. The third discusses the public hearing, which I attended in Ottawa on 25 October 2016.

Myths, Stereotypes, and Credibility in Sexual Offence Trials

By Drew Yewchuk

On September 13, 2016

In Criminal

By: Drew Yewchuk

PDF Version: Myths, Stereotypes, and Credibility in Sexual Offence Trials

Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)

R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written.

Ostensible Consent: Reality and Legal Reality

By Drew Yewchuk

On August 8, 2016

In Criminal, State Responses to Violence

By: Drew Yewchuk

PDF Version: Ostensible Consent: Reality and Legal Reality

Case Commented On: R v Hajar, 2016 ABCA 222 (CanLII)

R v Hajar, 2016 ABCA 222 (CanLII) is an appeal of a sentencing for sexual offences against a minor. Hajar was convicted of sexual interference and luring a child (respectively s 151 and s 172 of the Criminal Code) and was given a global sentence of 18 months imprisonment followed by three years probation. Both the Crown and Hajar appealed, arguing the sentence was unfit. This post focuses on the majority’s rejection of the relevance of the ostensible consent of the minor to the sexual activity that was the subject of the charge, and their consequent rejection of the position that the offence was a legal technicality.

Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time

By Drew Yewchuk

On July 14, 2016

In Constitutional, Criminal, Supreme Court of Canada

By: Drew Yewchuk

PDF Version: Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time

Cases Commented On: R v Jordan, 2016 SCC 27 (CanLII); R v Williamson, 2016 SCC 28 (CanLII)

I recently posted a comment on a Supreme Court of Canada decision, R v Vassell, 2016 SCC 26 (CanLII), involving section 11(b) of the Charter, which guarantees the right of any person charged with an offence to be tried within a reasonable time. On July 8, 2016, the Supreme Court of Canada decided two more appeals on section 11(b) of the Charter. In a five-four split in R v Jordan, 2016 SCC 27 (CanLII), the majority overturned the framework for calculating unreasonable delay that was established in R v Morin, [1992] 1 SCR 771 (CanLII). The new framework is simpler, and establishes presumptive ceilings for unreasonable delay (minus defence delays) between charges being laid and the end of trial. The new ceilings are 18 months for charges going to trial in provincial court, and 30 months for charges going to superior court. (Jordan, at para 49) This is a significant change to section 11(b) jurisprudence, and both the majority and concurring judgments acknowledge it as such (Jordan, majority at paras 134-137, concurring at para 302). Moreover, the concurring justices only concur as to the outcome of Jordan – they propose a less radical departure from Morin and fundamentally disagree regarding the proper framework to be applied. This post explores the reasons provided by the majority for this change, as well as the application of the majority and alternative frameworks in Jordan and the companion case of R v Williamson, 2016 SCC 28 (CanLII).

The Forest of Delays

By Drew Yewchuk

On July 6, 2016

In Constitutional, Supreme Court of Canada

By: Drew Yewchuk

PDF Version: The Forest of Delays

Case Commented On: R v Vassell, 2016 SCC 26 (CanLII)

Section 11(b) of the Canadian Charter of Rights and Freedoms, guarantees that any person charged with an offence has the right to be tried within a reasonable time. In R v Vassell 2016 SCC 26 (CanLII) the Supreme Court of Canada reiterated that the Crown is responsible to deliver on this right. The approach that had been developing in Alberta courts was that the right would only be violated where the actions of the Crown caused excessive delay – institutional delays and delays caused by anything other than Crown actions were considered neutral or less important and did not trigger section 11(b). The Supreme Court in Vassell rejects this approach: the Crown is responsible for bringing the accused to trial within a reasonable time and therefore for all delays, regardless of their cause, trigger section 11(b) unless the accused explicitly or implicitly waives their right to be tried within a reasonable time.