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Category: Criminal Page 35 of 39

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

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On October 27, 2010

In Criminal, International Law

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

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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On October 8, 2010

In Criminal

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

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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Unconstitutional Regulatory Offences: Too Much and Too Little at Stake

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On October 1, 2010

In Constitutional, Criminal

PDF version: Unconstitutional Regulatory Offences: Too Much and Too Little at Stake  

Case considered: R. v. Keshane, 2010 ABPC 275

In a thorough 22 pages, Provincial Court Judge Donna Groves acquitted Renada Lee Keshane of a $500 ticket for fighting in public. Ms. Keshane was ticketed under a decade-old provision of Edmonton’s Public Places Bylaw, Bylaw 14614, which, the Court ruled, violates the constitutional division of powers. While the cost of litigating this ticket almost certainly dwarfed the fine at stake, constitutional review of bylaw offences is predictably and disturbingly sparse. “Fighting in Public” and similar provisions impose considerable limits on behaviour, but are rarely worthwhile to litigate. The potential result is the injustice of a longstanding unconstitutional provision.

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Access to Justice and Representation by Agents

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On September 29, 2010

In Access to Justice, Constitutional, Criminal

By: Jennifer Koshan

PDF Version: Access to Justice and Representation by Agents 

Case Commented On: R v Frick, 2010 ABPC 280

Cutbacks to legal aid are a harsh reality in Alberta and the rest of Canada. As noted on the website of Legal Aid Alberta (LAA), “as of April 6, 2010, LAA’s eligibility guidelines for full representation by a lawyer have decreased by 30%”. This is due in part to the fact that in this province at present, legal aid funding is highly dependent upon Alberta Law Foundation revenue, and this revenue has been adversely affected by the economic downturn. It is also due to government cuts to Legal Aid. Legal Aid has developed a bandaid of sorts through Legal Services Centres, which “provide clients access to legal information, referral and brief services (in family, criminal, civil and immigration matters) with legal advice in immigration and non-family civil matters.” However, these centres exist only in Calgary and Edmonton, deal only with certain legal matters at present, and perhaps most importantly, do not provide full legal representation. Attempts by lawyers such as Dugald Christie and the Canadian Bar Association to bring constitutional claims asserting rights to representation by paid legal counsel in certain circumstances have not been successful. In such a climate, it is not surprising that other actors – such as agents – have stepped into the fray to provide legal services. A recent Alberta Provincial Court case, R v Frick, shows that there are legislative and constitutional limits to the role that agents can play in filling the gaps in legal aid.

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Sentencing for Spousal Sexual Violence: Different but Equal

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On August 20, 2010

In Criminal, State Responses to Violence

PDF version: Sentencing for Spousal Sexual Violence: Different but Equal

Cases considered: R. v. D.J.D., 2010 ABCA 207; R. v. D.J.D., 2009 ABPC 216

Until 1983, the definition of rape in Canada excluded offences committed by a husband against his wife. In that year, reforms to the Criminal Code did away with the offence of rape altogether, and implemented a new scheme of sexual offences that were gender neutral and could, explicitly, be committed by one spouse against another (see Bill C-127, Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980 81 82 83, c. 125, s. 246.8). The issue of spousal sexual violence has received little specific attention in Canada since the reforms of 1983. However, the African and Canadian Women’s Human Rights Project (ACWHRP) – a project involving lawyers, activists and academics in Canada, Ghana, Kenya and Malawi – is presently studying the lessons learned from the criminalization of marital rape in Canada in the context of efforts to criminalize this form of violence in the 3 African countries. I am completing a review of case law in Canada – some 275 decisions over the past 27 years – which shows that cases of spousal sexual violence still continue to be treated differently from other sexual assault cases when it comes to issues of consent, mistaken belief in consent, evidentiary matters, and sentencing. On the latter issue, a recent case of the Alberta Court of Appeal, R. v. D.J.D., brings to light some of the considerations faced by judges when sentencing offenders for spousal sexual violence.

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