Category: Criminal Page 28 of 39

By: Jennifer Koshan

PDF Version: Sentencing in an Unusual Domestic Violence Case

Case Commented On: R v Hernandez, 2014 ABCA 311

The most recent edition of Eugene Meehan’s Supreme Advocacy newsletter lists R v Hernandez, 2014 ABCA 311, as the Court of Appeal case of the week nation-wide. The case involves a Crown sentence appeal in the domestic violence context. Sadly, domestic violence cases are not uncommon, so what is so remarkable about this case?

First, it involves a female perpetrator. As annual Statistics Canada reports on family violence show, domestic violence is a gendered crime. In the most recent Stats Can report, 80% of all domestic complaints made to police in 2011 were made by women, a number which is consistent over time. At the international level, gender-based violence has been recognized as a form of discrimination against women in documents such as General Recommendation No. 19 to the Convention on the Elimination of All Forms of Discrimination Against Women. But in this case, Luisa Amelia Hernandez was the accused, and the complainant was her former common-law husband.

R v Navales and Reasonable Suspicion

By Shaun Leochko

On September 5, 2014

In Constitutional, Criminal

By: Shaun Leochko

PDF Version: R v Navales and Reasonable Suspicion

Cases Commented On: R v Navales, 2014 ABCA 70; R v Canlas, 2014 ABCA 160; R v Ng, 2014 ABPC 62; R v Tosczak, 2014 ABQB 86

The engagement of section 8 and section 9 of the Canadian Charter of Rights and Freedoms (the Charter) in the drug sniffer dog cases has captured the interest of civil libertarians and law enforcement for what is required for a “reasonable suspicion.” The 2013 Supreme Court decisions of R v Chehil, 2013 SCC 49, and R v MacKenzie, 2013 SCC 50 effectively lowered what would be required of police officers to form the reasonable suspicion necessary to conduct a “sniff” search. This resulted from the Supreme Court allowing an officer’s training and experience, in the totality of the circumstances, to form the objective requirement necessary to the forming of reasonable suspicion. The Alberta Court of Appeal in R v Navales, 2014 ABCA 70, was tasked with applying this law in Alberta. At issue was how officers would use their training and experience, and a constellation of neutral “no win” behaviours on the part of the accused to form the objective grounds needed to find reasonable suspicion. The result has been what dissenting judges have referred to as a lowering of the standard to that of a generalized suspicion. Significantly, this line of decisions has been applied outside of the drug sniffing dog context, and even outside of the reasonable suspicion context, to other areas of criminal law in R v Canlas, 2014 ABCA 160, R v Ng, 2014 ABPC 62, and R v Tosczak, 2014 ABQB 86.

A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

By Sarah Burton

On September 4, 2014

In Access to Justice, Criminal

By: Sarah Burton

PDF Version: A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

Case commented on: R v Smart, 2014 ABPC 175

Access to justice advocates should to take a few moments to review R v Smart, 2014 ABPC 175, where the Honourable Assistant Chief Judge Anderson stayed proceedings against three accused persons who could not afford counsel, but did not qualify for Legal Aid. While such applications are not uncommon, the evidence considered in Smart extends far beyond the norm. This extensive evidence, coupled with Judge Anderson’s probing commentary on access to justice, places a welcomed spotlight on Alberta’s Legal Aid funding crisis. In Smart, Judge Anderson sought to provide concrete guidance to courts facing similar applications. While he accomplished this task, his engagement with access to justice issues may be the more lasting legacy of the judgment.

“Putting” Browne v Dunn into Perspective

By Dylan Finlay

On July 24, 2014

In Criminal

By: Dylan Finlay

PDF Version: “Putting” Browne v Dunn into Perspective

Case commented on: R v KWG, 2014 ABCA 124

The century old rule in Browne v Dunn (hereinafter “the rule”) holds that if counsel intends to present evidence contradictory to a witness’s testimony as part of his or her argument, he or she must put this version of events to the witness during cross-examination. But just how far must counsel go to satisfy this requirement? The Alberta Court of Appeal has recently shed some light on this question.

The rule is summarized in R v Pasqua, [2009] AJ No 702, 2009 ABCA 247: “there is a general duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’ credibility or present contradictory evidence.” The purpose of the rule is well-grounded; witnesses should be given an opportunity to respond to competing versions of events. Applying a rigid interpretation to R v Pasqua, it would appear as if during cross-examination, counsel would have to say the words “I put to you …” before presenting the witness with contradictory evidence. This formal and rigid interpretation of the rule has now been clarified, and a more flexible approach adopted.

Access to Justice and Costs Against the Crown

By Sarah Burton

On April 16, 2014

In Access to Justice, Criminal

By: Sarah Burton

PDF Version: Access to Justice and Costs Against the Crown

Case commented on: R v A.Y.A., 2014 ABQB 103

In R v A.Y.A., 2014 ABQB 103 [AYA], the Honourable Madam Justice C.A. Kent suggested that access to justice considerations have a role to play in awarding costs against the Crown. AYA built on pre-existing case law that laid the groundwork to make this exceptional award in situations where there was no Crown misconduct. Prior to AYA, however, applicants had been unsuccessful in achieving these ends. This decision is particularly fascinating because Justice Kent used access to justice concerns to distinguish the case before her from the earlier unsuccessful case law. In the process (and despite Justice Kent’s best efforts to narrowly confine the decision) AYA raises wide-ranging questions about remedial entitlements for access to justice breaches.