Category: Criminal Page 22 of 39

By: Jennifer Koshan

PDF Version: Reflections on Week One of the Ghomeshi Trial

I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.

The Tension Between Process and Outcome in Creating Representative Juries

By Erin Sheley

On February 5, 2016

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Tension Between Process and Outcome in Creating Representative Juries

Case Commented On: R v Newborn, 2016 ABQB 13

The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.

Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.

Sexual Assault and Choking – Making Sense of the Legal Consequences

By Jennifer Koshan

On February 1, 2016

In Criminal, State Responses to Violence

By: Jennifer Koshan

PDF Version: Sexual Assault and Choking – Making Sense of the Legal Consequences

Case Commented On: R v White, 2016 ABQB 24

The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA, [2011] 2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.

Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

By Sarah Burton

On January 26, 2016

In Constitutional, Criminal

By: Sarah Burton

PDF Version: Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

Case Commented On: Barr v Alberta (Attorney General), 2016 ABQB 10

Last spring, I posted a comment flagging the constitutional concerns surrounding section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1, the province’s gang affiliation law (here). The provision authorizes police officers to remove or exclude anyone from a licenced premises based on their belief that the target of removal is connected, in varying degrees, to a gang (see section 69.1 here). Failing to comply with this direction is an offence punishable by a fine and/or a maximum of 6 months in prison (Gaming and Liquor Act, sections 116, 117; Barr v Alberta (Attorney General), 2016 ABQB 10 at para 3).

The gang affiliation law is meant to protect bar owners by diminishing gang presence in bars and de-incentivizing the lifestyle to potential recruits (Barr at para 6). Despite this laudable goal, the law raises several red flags under the Charter: it appears overbroad both in its sphere of application (it applies not only to bars, but all licenced premises) and targets for removal (including not only gang members, but persons who support or facilitate gangs, or persons in the company of any of those persons). It also appears to contravene the Charter’s guaranteed freedoms regarding peaceful assembly and association. I encourage readers interested in the provision to read my earlier post here.

The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences

By Erin Sheley

On December 10, 2015

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences

Case Commented On: R v Friesen, 2015 ABQB 717

The Court of Queen’s Bench has found a new constitutional limitation on Parliament’s attempt to impose mandatory minimum sentences for firearms offences. Just on the heels of R v Nur, 2015 SCC 15, where the Supreme Court struck down three- and five-year mandatory minimums for possession offences under section 95 of the Criminal Code, Mr. Justice Vital O. Ouellette has, in R v Friesen, 2015 ABQB 717, held an identical sentencing provision to be likewise unconstitutional for trafficking offences under section 99. This case suggests that Nur could have marked the beginning of widespread dismantling of the Criminal Code’s policy of gun-related mandatory minimums. In both Friesen and Nur the courts’ concerns are the same: the risk of discrepancy between the prototypical violent offenders targeted by the minimums and the potentially far less culpable parties who might be swept along by them.