Category Archives: Criminal

Sliding Down the Slippery Slope

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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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Domestic Violence and Provocation: The Door Remains Open

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

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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. Continue reading →

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

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

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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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