Category Archives: Criminal

R v Anthony-Cook and the Community’s Sense of Justice

By: Lisa Silver

PDF Version: R v Anthony-Cook and the Community’s Sense of Justice

Case Commented On: R v Anthony-Cook, 2016 SCC 43 (CanLII)

In R v Anthony-Cook, 2016 SCC 43 (CanLII), Justice Moldaver, on behalf of the full court, clarifies the test to be applied by a sentencing judge when departing from a joint submission on sentence and then gives clear step-by-step instructions to judges on how to properly apply the appropriate test. The joint sentence recommendation in this case arose out of a tragic set of circumstances in which the 28-year-old offender, who suffered from addiction and mental health issues, assaulted a fellow attendee at a local addiction and counselling organization. The assault resulted in death, and Mr. Anthony-Cook, after his lawyer negotiated a plea resolution with the Crown prosecutor (including an agreement on sentence), entered a plea of guilty to the charge of manslaughter. At the sentencing hearing, the defence and Crown prosecutor offered a joint submission on sentence, recommending the offender receive a further 18-months incarceration (he had already been in custody for a total of 11 months) without any period of probation.

The sentencing judge declined to accede to the joint recommendation as the proposed sentence did “not give adequate weight to the principles of denunciation, deterrence, and protection of the public” (R v Anthony-Cook, 2014 BCSC 1503 (CanLII), Ehrcke J at para 68) and instead imposed a sentence of two years less a day to be followed by 3 years of probation. (at paras 54 to 63) In the sentencing judge’s view, the sentence proposed was unfit and therefore he was not bound by the joint submission. As a result, he departed “to some extent” from the negotiated sentence recommendation. (at para 67) The British Columbia Court of Appeal agreed with the sentencing judge’s assessment that the proposed sentence was unfit and not in the public interest and found no error in his sentencing decision. The matter was further appealed to the Supreme Court of Canada (SCC) to clarify the test to be used by a sentencing judge in departing from a joint submission on sentence. Appellate courts across Canada were not ad idem on the issue, using four different tests for departure: the fitness test, the demonstrably unfit test, the public interest test, and a test which viewed the issues of fitness and public interest as the same. The SCC was asked to clarify which test was the controlling one, with the Court unanimously approving the public interest test. As the sentencing judge erred by applying the incorrect test, Anthony-Cook’s negotiated sentence was imposed by the Court. Continue reading →

Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

By: Erin Sheley

PDF Version: Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

Case Commented On: Regina v Sanaee, 2016 ABCA 289 (CanLII)

The year 2016 has been bleak for animals in Canada. In September, Montreal passed a new city bylaw banning the adoption of new pitbulls and pitbull mixes, and imposing stringent licensing and muzzling requirements on currently-owned dogs under threat of euthanasia. (See City of Montreal Regulation 16-060). And Parliament just voted down proposed amendments in Bill C-246, the Modernizing Animal Protections Act, which would have made modest changes to federal legislation such as banning the importation of shark fins removed from living sharks and products made from dog or cat fur. But on September 28, 2016 the Alberta Court of Appeal provided some good news for animal welfare supporters.

In R v Sanaee, 2016 ABCA 289 (CanLII), the Court of Appeal considered the appeal of a dog trainer convicted of two counts of causing unnecessary pain, suffering or injury to an animal, contrary to section 445.1(1)(a) of the Criminal Code, RSC 1985, c C-46. Continue reading →

Myths, Stereotypes, and Credibility in Sexual Offence Trials

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. Continue reading →

Making Sense of Aboriginal and Racialized Sentencing

By: Joshua Sealy-Harrington and David Rennie

PDF Version: Making Sense of Aboriginal and Racialized Sentencing

Cases Commented On: R v Laboucane, 2016 ABCA 176 (CanLII); R v Kreko, 2016 ONCA 367 (CanLII)

In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).

The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders. Continue reading →

Supporting the Unrepresented: Providing Trial Information to Self-Represented Litigants

By: Alena Storton

PDF Version: Supporting the Unrepresented: Providing Trial Information to Self-Represented Litigants

Case Commented On: R v Hamiane, 2016 ABQB 409 (CanLII)

Recent appeals by self-represented litigants (SRL) often focus on the extent of a trial judge’s duty to assist the self-represented litigant. Trial judges are expected to assist SRLs throughout a trial, but the scope of assistance is left to their discretion (R v Hamiane, 2016 ABQB 409 (CanLII); Cold Lake First Nations v Alberta (Minister of Tourism, Parks & Recreation, 2012 ABCA 36 (CanLII); Malton v Attia, 2016 ABCA 130 (CanLII); for earlier posts discussing Malton v Attia see here and here). From the appeals, however, it is clear that SRLs do not feel sufficiently supported or informed to meaningfully participate in a trial. To remedy this issue, trial judges should consider altering the way in which they approach assisting SRLs in the trial process. Judges already explain procedural steps during a trial, as seen in Hamiane. By providing that same assistance at the outset of a trial in accordance with an established set of guidelines, however, trial judges could streamline the process and ensure that all SRLs receive consistent information sufficient to allow them to meaningfully and fully participate in a trial. Continue reading →