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Why Reconsider W(D)?

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On February 7, 2019

In Criminal, Evidence

By: Lisa Silver

PDF Version: Why Reconsider W(D)?

Case Commented On: R v Ryon, 2019 ABCA 36 CanLII

I have written at great length on the W(D) decision, R v W(D), 1991 CanLII 93 (SCC), and the extraordinary impact that case has on our justice system. In my recent article on the issue, aptly entitled The W(D) Revolution, (2018) 41:4 Man LJ 307, I posit that the decision reflects a watershed moment in the assessment of credibility in criminal cases. The case decision, outlining the analytical approach to be taken in assessing credibility when there are “two diametrically opposed versions” of events, revolutionized such assessments by providing a template for integrating factual determinations within the burden and standard of proof (see e.g. R v Avetysan, 2000 SCC 56 (CanLII) at para 28). The W(D) state of mind was one that ensured that the principles of fundamental justice as distilled through the special criminal burden and standard of proof, would remain front and centre in the ultimate determination of guilt or innocence of an accused. This is not to say that the path towards enlightenment has not been strewn with difficulties. To the contrary, to recognize the imperfections of the decision and to experience the twists and turns of W(D) as pronounced upon in future SCC decisions, is to appreciate the W(D) ethos even more. W(D) has needed reinterpretation and reaffirmation throughout the decades since its release, but the question of whether it needed a reconsideration was at issue in the recent decision from the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (CanLII).

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The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

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On January 7, 2019

In Constitutional, Criminal, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

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Trial Within A Reasonable Time: A Farewell to the Transitional Period

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On December 6, 2018

In Criminal, Human Rights

By: Drew Yewchuk

PDF Version: Trial Within A Reasonable Time: A Farewell to the Transitional Period

Case Commented On: R v Scher, 2018 ABCA 365; R v Carter, 2018 ABQB 657; R v Tetreault, 2018 ABCA 397

The Supreme Court rendered judgment in R v Jordan, 2016 SCC 27 on July 8, 2016. This post is a review of three recent Alberta decisions addressing Jordan, and a farewell to the transitional provisions, as it has been almost thirty months since Jordan was released. The transitional provisions apply only to time between when charges were laid and when Jordan was released. Few cases left in the system (though some decisions are likely still pending) will involve relevant argument on the application of the transitional provisions. The post ends with a caution about where the law might be headed.

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“Marriage is not a rugby match”: Choking, Consent and Domestic Violence

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On October 3, 2018

In Criminal, State Responses to Violence

By: Jennifer Koshan

PDF Version: “Marriage is not a rugby match”: Choking, Consent and Domestic Violence

Case Commented On: R. v Gardiner, 2018 ABCA 298 (CanLII)

Sexual violence – how it is perpetrated and how allegations are handled by those in power – is at the forefront of public consciousness at the moment as a result of #MeToo and, most recently, the Brett Kavanaugh confirmation hearings. But discussions about the legal definition of consent have been happening in Canada for a long time. The current definition of consent dates back to 1992 and was the result of a law reform process that included consultations with groups representing the interests of survivors as well as accused persons. Consent is defined in s 273.1 of the Criminal Code, RSC 1985, c C-46, as “the voluntary agreement of the complainant to engage in the sexual activity in question” and it is to be assessed from the complainant’s subjective perspective (R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC)). Among several important principles that are well accepted in the case law (even if they are not always properly applied), consent cannot be implied or given in advance, can always be revoked, and must be present for each sexual activity in a particular encounter as well as the degree of force used for each activity (see e.g. Ewanchuk, R. v. J.A., [2011] 2 SCR 440, 2011 SCC 28 (CanLII); R v Barton, 2017 ABCA 216 (CanLII); leave to appeal granted, 2018 CanLII 11543 (SCC)).

How does this approach to consent change when the offence is one of domestic violence rather than sexual violence? For a majority of the Alberta Court of Appeal in a recent case, R. v Gardiner, 2018 ABCA 298 (CanLII), the answer is – wrongly, in my view – quite a lot.

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What Precisely Is A Regulatory Offence?

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On September 26, 2018

In Criminal, Statutory Interpretation

By: Lisa Silver

PDF Version: What Precisely Is A Regulatory Offence?

Case Commented On: R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273

This semester, I will start teaching 1Ls the first principles of criminal law. The main components of a crime, consisting of the familiar terms of actus reus or prohibited act and mens rea or fault element, will be the focus. These concepts, that every lawyer becomes intimately familiar with in law school, are figments of the common law imagination as actus reus and mens rea do not figure in the Criminal Code. The terms are derived from the Latin maxim, “actus non facit reum nisi mens sit rea,” which translates as “there is no guilty act without a guilty mind.”  This stands for the proposition that the actus reus or prohibited act must coincide or happen at the same time as the mens rea or fault element. That maxim, however, fails to shed light on what those terms mean in law. Indeed, what exactly is a prohibited act or actus reus depends on the crime as described in the Criminal Code, and what exactly is the fault element or mens rea depends on a combination of common law presumptions, statutory interpretation, and case law. In other words, it’s complicated. Even more complex is the vision of these terms when applied to the regulatory or quasi-criminal context. In the recent decision of R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273 [Precision], the Alberta Court of Appeal attempts to provide clarity to these terms but in doing so may be creating more uncertainty.

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