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Edmonton Criminal Lawyer Ziv > Posts tagged "edmonton lawyer"
29 September
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Proving Lack of Consent

Posted by Rory
in Assault, consent

The Cab Driver – Failing to Prove Lack of Consent

A controversial case is before an appeal court in Nova Scotia.  When reading the facts please take into account this proposition.

The Crown have to prove beyond a reasonable doubt that the complainant did not consent.

Here are the facts:

On the evening of May 22, 2015, a young woman went to a bar. Her last memory at the bar was drinking two tequila shots and a vodka-and-cranberry mixed drink. Her next memory was speaking to a police officer. She does not recall if this conversation happened in an ambulance or at the hospital.

Other evidence (none of which the complainant remembered) showed that she was prevented from re-entering the bar at one point because of her level of intoxication, she also had a fight with her best friend, sent several text messages to her friends (and therefore was able to carry out a conversation) and hailed a cab.

A police officer came upon the parked cab she was in naked from her breasts down and the cab driver had her urine soaked underwear and pants in his hands.

Based on her alcohol level (220 mg) an expert said her short term and long-term memory would be affected but she would still be able to interact with others.

The trial judge found the cab driver not guilty of sexual assault. His reasoning was that a drunk person can consent to sexual activity and although she may not remember today what happened at the relevant moment he had no other evidence to help him determine what did happen at the relevant time. “But I do not know whether [cab driver] removed her pants at her consent, at her request, with her consent, without her consent, I don’t know.”

Analysis

Drunkenness is not the same as incapacity and a drunken consent is still a valid consent (see R. v Jensen (1996) 106 CCC3d 430).

It is very frustrating that there is a factual gap in this case and because alcohol can make people “say and do strange things” was implausible for the complainant to have stated or somehow consented to the sexual activity in question?  Let’s try to imagine how that would have transpired.

She hails a cab and immediately says to the cab driver “park the car, I’m horny, I want to have sex with you”. The cab driver obliges.

Is this scenario implausible or impossible? If the scenario is impossible then the trial judge got it wrong. If it is implausible (that is unlikely but still possible) it may be dangerous to convict.

I’ll update this blog on the Appeal outcome of this case.

06 October
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Conditional Sentence Order and Suspended Sentences

Posted by Rory
in Conditional Sentence Orders, Suspended Sentences

The following are some cases where Courts have made Conditional Sentence Orders or Suspended Sentences for charges of assault causing bodily harm, or assault with a weapon, and aggravated assault. The cases and the descriptions have been taken from CanLii and Quicklaw.

Conditional Sentence Orders

R. v. Sim- 2004 ABCA 349

Appeal by the Crown from the sentence imposed on the accused Sim. Sim was convicted of break and enter, assault with a weapon and uttering threats to cause serious bodily harm. He was 18 when he committed the offences and 19 when he was sentenced. Sim broke into a residence in search of the complainant. The complainant was alleged to have sexually assaulted a girl who was a friend of Sim. He found the complainant and assaulted and threatened him. Sim received a suspended sentence, two years probation and a 10-year firearms prohibition. The judge was satisfied that the requirements of denunciation and deterrence would be satisfied by a suspended sentence. Sim did not have a prior record.

HELD: Appeal allowed. The sentence was set aside and was replaced with a conditional sentence of one year of imprisonment. The sentence was demonstrably unfit. It did not meet the legitimate requirements of deterrence and denunciation. However, the court recognized the importance of rehabilitation for this youthful offender.

R. v. Stewart – [2005] A.J. No. 1942

Sentencing hearing following the accused’s guilty plea to charge of assault causing bodily harm — Accused swung his goalie stick with two hands towards the head of another hockey player during a hockey game — The blade struck the victim just above the mouth cutting it and knocking out three teeth and their roots — Counsel submitted joint submission — Counsel suggested 12 month conditional sentence — Accused had prior record including conviction on a drug charge and impaired driving — Accused was 51 years of age and had been married for 33 years — Accused had continuous work history and was a correctional officer for 25 years — Accused was semi-retired — He was actively involved in the community — Court heard victim impact statement — HELD: Accused received one year conditional sentence — Accused was not a danger to the community — Primary sentencing objectives were general deterrence and denunciation and rehabilitation — Accused expressed remorse — Accused was ordered to perform 150 hours of co mmunity service — $200 victim fine surcharge

R. v. Dooley- [2005] A.J. No. 1367

Offender pleaded guilty to assault causing bodily harm — The complainant sustained scarring on her face which required plastic surgery — Costs of plastic surgery would be $3,100 — Offender had paid the complainant $500 — Offender had no prior criminal record and was remorseful — A conditional sentence was appropriate — Sentence: Three month conditional sentence, $2,600 compensation order.

R v Perepelecta, 2004 ABPC 88 (CanLII), the accused was charged with aggravated assault in a case involving a beer bottle. The court found that the accused’s offence was “best characterized as an impulsive act as opposed to premeditated or planned.” It went on to say at para 25:

She did not deny her assault of the victim, just her legal motive or responsibility for it. Ms. Perepelecta’s relative degree of moral culpability is thereby at the minimum end on the scale of fault for this type of offence, and an appropriate sentence should reflect this.

[32]           Based on the various factors that the court outlined, it concluded that a 12-month conditional sentence would be a fit and proper sentence in that case.

 In R v Neuberger, 2014 ABPC 275 (CanLII),

Assault causing bodily harm Redman PCJ was dealing with a road rage incident in which the accused and two others beat up the victim. The accused continued to beat the victim even when the victim was down. Redman PCJ convicted the accused of assault causing bodily harm. The Crown was seeking a sentence of 7 to 12 months incarceration. The accused was seeking a conditional sentence order. The accused had positive pre-sentence report and Redman PCJ held that a conditional sentence would impose hardship on accused’s family and employment. He found that there was an element of pre-meditation, it was an unfair fight with 3 against 1, and there were multiple blows struck when complainant was on ground. He imposed a $5,000 fine, which was suitable punishment in the circumstances. He found that denunciation and deterrence were important principles although specific deterrence was not necessary as accused was not community safety risk and assault was an aberration from his normal behavior. He also said that the accused’s conduct had to be denounced and sentence had to serve as substantial warning to others that this type of behaviour would not be tolerated.

R. v. Burlington, 2008 ABPC 136

The Accused has pled guilty to a charge of assault causing bodily harm. While intoxicated in a bar, he hit the victim in the face with a beer bottle. The bottle broke, and the victim sustained serious personal injury. The matter is before the Court for disposition, and the issue is a fit sentence. For the reasons that follow, the Accused is sentenced to 12 months’ imprisonment to be served in the community, pursuant to a Conditional Sentence Order (CSO).

R. v. Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 S.C.R. 780. In that case, the accused pled guilty to illegal possession of explosives and possession of a weapon for a purpose dangerous to the public peace. He had a lengthy history of mental illness and of dangerous handling of explosives. The Supreme Court of Canada restored the decision of the trial judge who imposed a conditional sentence, which was to be served in a locked, secure psychiatric facility, at his request. In referring to its earlier decision in Proulx, the Court stressed that dangerous offenders were not excluded from consideration for conditional sentences (para. 26). Further, despite the accused’s history, the risk of re-offending while serving the conditional sentence was no greater than it would be if the accused was ordered to serve his sentence incarcerated.

R. v. Perepelecta, 2004 ABPC 88 

[23]            Having reviewed numerous cases from other jurisdictions and Alberta, I recognize that where the offence is committed by an offender with a criminal record, where the nature of the attack is relatively brutal or premeditated, and the injury to the victim severe, a sentence of incarceration is likely to flow.  I find these cases distinguishable from the present one, in part, because Ms. Perepelecta is a first offender, and because her assault of the complainant was not premeditated and not completely unprovoked.  She did not break the bottle and use it as a knife-like weapon.  The assault itself was an instantaneous reaction in a tense situation and consisted of a single blow with a bottle.  The injuries suffered by the complainant while serious, were, nevertheless,  less severe than those suffered in the cases where the offenders intended to injure their victims.

ll of the circumstances and having particular regard to this offender and the nature of the offence, I find that the appropriate sentence is one to be served in the community.  The length of sentence and the conditions prescribed shall be appropriate so as to satisfy the objectives of denunciation and deterrence in these unique circumstances.  Accordingly, I sentence Ms. Perepelecta a term of imprisonment of 12 months, but as I am satisfied that the serving of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of theCriminal Code, I am ordering that Ms. Perepelecta serve the sentence within the community subject to the following principal conditions that she:

Suspended Sentences

R. v. Perry- 2011 ABPC 221

Sentencing of Perry who was found guilty of assault causing bodily harm and mischief. In June of 2009, Perry entered into a heated verbal argument with the victim over the use of a batting cage in a public park. Both were coaches of their sons’ baseball teams. While the victim’s back was turned, and he was kneeling down engaged in picking up his baseballs, Perry approached him from behind and with a low undercut, punched the victim in his face. The victim consequently sustained an injury to his nose, requiring constructive surgery, and time off work. Counsel for the Crown sought a short, sharp period of intermittent incarceration. The Crown submitted that an intermittent sentence with two years’ probation would be an appropriate sentence as the primary sentencing factors were deterrence and denunciation. The Crown pointed to the aggravating factors being the severity of the victim’s injuries and the context of the offence. In mitigation, the Crown noted Perry’s positive pre-sentence report, positive character references and his lack of criminal record. The Crown took the position that a conditional discharge would not be appropriate because denunciation and deterrence were paramount sentencing factors. On the other hand, defence counsel did seek a conditional discharge, indicating that, but for this incident, Perry was of exemplary character. The defence argued that Perry was a responsible and active member of his church and his community, who had already paid enough of a price by being penalized by release conditions for over two years; suffering adverse publicity; and being frozen out of coaching for two years.

HELD: Perry given suspended sentence and one year probation. Taking all of the aggravating and mitigating factors into consideration, as well as the pre-sentence report, the case law cited and the arguments presented, a conditional discharge was not appropriate in all the circumstances of the case. Perry had not been provoked, and so a suspended sentence, with the attendant conviction registered, could be structured to combine both the requisite deterrent and rehabilitative requisites mandated by the circumstances. The entering of a conviction was an important factor in this case. Sentence: Suspended sentence; one year probation.

R. v. Yaholnitsky- 123 A.R. 151

The accused was sentenced after pleading guilty to charges of assault and assault causing bodily harm to his two daughters, aged 12 and 16. The 44-year-old accused hit each of his daughters on the buttocks with a wooden tennis racquet after they had been arguing with their mother about cleaning up their rooms. Both daughters suffered bruising to their legs, one had a broken finger, and the other a swollen knuckle. Both of the daughters wrote letters for the bail review hearing supporting family reunification. Neither they nor their mother wished the accused to be jailed. The Crown argued that the offence warranted incarceration.

HELD: The accused received a suspended sentence and a term of probation. The court agreed with the case law stating that courts should not tolerate child abuse and should send strong messages of deterrence. However, this case had unusual aspects which could not be overlooked. This was a single occurrence of a controlled, culturally learned disciplinary technique. The father, who quickly realized that the extent of the discipline had been excessive, apologized and sought immediate psychological help for himself and his family. According to the psychologist, the offender had been rehabilitated and would likely never offend again. Further, if this offender were jailed, the whole family would suffer financially and psychologically. The court considered whether the principle of general deterrence required incarceration, and determined that in this particular case, with its unusual circumstances, it did not.

R. v. C.R.P. -2009 ABPC 32

Sentencing of the accused for sexual assault. The accused pleaded guilty. The 17-year old complainant, a friend of the accused’s daughter, had been riding her horse at the accused’s acreage. After she finished riding, the accused engaged her in some unwanted discussion about sex. After he stood up to leave, he momentarily touched her vaginal area outside her clothing. The accused, 59, was married and had children. His family was supportive. The accused had been sexually abuse as a child. Since this offence occurred, the accused, of his own volition, had been attending counseling. The accused had a 1984 conviction for sexual assault and a 1977 conviction for indecent exposure after he urinated outside a drinking establishment.

HELD: Sentence suspended for two yeas. This was an assault at the very low end of the sexual assault continuum. Although this was not a parent-child or analogous trust situation, the accused did breach an element of trust with respect to this victim in that she was entitled to expect that she would be safe in his company while attending at the acreage to ride her horse. The prior record was dated and not weighed. The accused was not a recidivist, he did not represent a danger to the community and was clearly rehabilitable. The court considered the accused’s immediate guilty plea and cooperation with police, as well as the remorse shown. The circumstances of the offence and its consequences were not so egregious as to demand prison to achieve denunciation and deterrence. Denunciation and deterrence could also be served by this accused living in the community under the terms of community supervision. Suspending the passing of sentence for a period of two years subject to terms of a probation order appropriately addressed the principles of sentencing, including the primary objectives of denunciation and deterrence. Sentence: Two-year suspended sentence; DNA order.

04 March
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Mistake of Fact

Posted by Rory
in Defences, mistake of fact

 

Mistake of Fact and consent

Thoughts re: Mistake of Fact w.r.t. consent

Mistake of fact:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Mistake of fact w.r.t. consent is therefore a valid defence.

It is important to note that mistake of fact (with the exception of sexual assault cases) does not have to be based on reasonable grounds.

R. v. Bulmer [1987] 1 S.C.R. 782

“The defence has been variously described and may be conveniently stated in these terms. If an accused entertains an honest belief in the existence of a set of circumstances which, if they existed at the time of the commission of an otherwise criminal act, would have justified his act and rendered it non-criminal, he is entitled to an acquittal. The law on this question as far as Canada is concerned has been stated authoritatively in Pappajohn v. The Queen, [1980] 2 S.C.R. 120. Dickson J. (as he then was), writing on this point with the concurrence of the majority of the Court, held that the defence was available in Canada, that it goes to the question of whether the accused had the necessary mens rea for the commission of the crime involved, and that the mistaken belief upon which the defence rests need not be reasonable, if honestly held. The subject has been further explored by my colleague, Wilson J., in her reasons for judgment in R. v. Robertson, [1987] 1 S.C.R. 918 (judgment delivered concurrently), with whose observations I agree.”

But I would argue that there were reasonable grounds for our client to believe that the complainant was one of the attackers. He is Latin American, and therefore brown skinned like the group of Arabs that attacked our client. Furthermore, email communication with the crown indicates that the complainant was friends with at least two of the Arab men in question, and he was by all accounts, near or at the scene of the crime. It is therefore not a stretch to believe that the complainant was one of his attackers. Impaired, and justifiably angry, our client had reasonable grounds to believe that the complainant was one of his attackers, and fleeing from him after subjecting him to significant bodily harm.

Note: R. v. Jobidon [1991] 2 S.C.R. 714: The limitation demanded by s. 265 vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.

Firstly, Jobidon specifically mentions that intention is needed to vitiate consent. This is also the requisite mental element for the assault offence (R v Danydink 253 C.C.C. (3d) 493 (B.C C.A) Did our client intentionally cause serious bodily harm? It is possible that he was reckless or careless, but quite unlikely that our client, impaired and justifiably angry, had the requisite intention to cause serious bodily harm to the complainant. Our client was simply reacting to the onslaught by a group of men. He was actively defending himself, rather than intentionally attacking the complainant with the intent of causing serious bodily harm. Mistake of fact w.r.t. consent is very much a live issue.

 

Even if we are to accept that our client had the requisite intention there are ways around the Jobidon problem. It is important to note that in Jobidon “the fight” resulted in death. In R. v. Nash  [1996] O.J. No. 4239, Quinn J. reviews Jobidon exhaustively and has some interesting insights into the decision.

at p. 491:

“Although there is certainly no crystal-clear position in the modern Canadian common law, still, when one takes into account the combined English and Canadian jurisprudence, when one keeps sight of the common law’s centuries-old persistence to limit the legal effectiveness of consent to a fist fight, and when one understands that s. 265 has always incorporated that persistence, the scale tips rather heavily against the validity of a person’s consent to the infliction of bodily injury in a fight …
Notwithstanding this conclusion, given the residual indetermination which admittedly lingers in the recent Canadian cases, it is useful to canvass policy considerations which exert a strong influence in this appeal, for they rather decisively support the respondent, bringing down the scales even more surely in support of the decision in the court below.
Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights … it is not in the public interest that adults should willingly cause harm to one another without a good reason. There is precious little utility in fist fights or street brawls. These events are motivated by unchecked passion.”
and at p. 492:

“Given the spontaneous … nature of many fist fights, I would not wish to push the deterrence rationale too far. None the less, it seems reasonable to think that, in some cases, common law limitations on consent might serve some degree of deterrence to these sorts of activities.”
and at p. 493:

“… If aggressive individuals are legally permitted to get into consensual fist fights and they take advantage of that license from time to time, it may come to pass that they eventually lose all understanding that that activity is the subject of a powerful social taboo. They may too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude. It is preferable that these sorts of omissions be strongly discouraged.
Wholly apart from deterrence, it is most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction to the sort of interaction displayed by the facts of this appeal. The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.”
and at p. 494:

“… it must not be thought that by giving the green light to the common law, and a red light to consent fights, this court is thereby negating the role of consent in all situations or activities in which people willingly expose themselves to intentionally applied force. No such sweeping conclusion is entailed. The determination being made is much narrower in scope.
How, and to what extent, is consent limited?
The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.
The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case-by-case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.”
and at p. 495:

“Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as ‘any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature’.”
15     Although the review, by Gonthier J., of the jurisprudence was sweeping, the end result was less so. I regard the ratio decidendi to be no more than this: in the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where serious hurt or non-trivial bodily harm is occasioned. Such a ratio, with nothing more, would logically support an inference that, in the case of a consensual, weaponless fist fight (brawl), between two adults, consent is effective where less-than-serious hurt or trivial bodily harm is occasioned. However, the matter ceases to be inferential and is rendered explicit, by the words of Gonthier J. just mentioned above (at p. 495):

“… the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm.”
Thus, Jobidon does not eliminate consent as a defence in cases of assault simpliciter.

2.
According to Jobidon, What Level of Bodily Harm Must Be Suffered Before Consent Is Rendered Ineffective As A Defence?

16     Earlier I set out this statement by Gonthier J. (at p. 494) which I now repeat:

“The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”
(Emphasis added.)
17     However, Gonthier also stated, as already indicated (at p. 495):

“Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as ‘any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature’.” (Emphasis added.)
18     So, what is the level of bodily harm that must be reached before consent ceases to be a valid defence? Should “serious hurt or non-trivial bodily harm” and “minor hurt or trivial harm” be read so as to be compatible with the definition of bodily harm found in s. 267(2) of the Criminal Code? Or, as Crown counsel submits, in using the words “essentially equivalent”, is Gonthier J. proposing another (and lower) threshold of bodily harm? I disagree with such a submission. To begin with, no good purpose would be served by setting up a new category of bodily harm. The law of assault would be complicated unnecessarily. It would result in a sliding scale for bodily harm. Furthermore, Crown counsel is putting too fine a point on the meaning of “essentially”. In The Shorter Oxford English Dictionary (Third Edition), “essential” is defined as “of or pertaining to the essence of anything”. Consequently, it is my view that Gonthier J. was not at all purporting to set up a new category of bodily harm. Instead, the bodily harm that vitiates consent is that which is found in s. 267(2) of the Criminal Code and nothing less. Support for this view is found in R. v. Welch (1995), 43 C.R. (4th) 225 (Ont.C.A.), where Griffiths J.A., writing for the Court, states at p. 249:

“In my view, however, the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined in s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” (Emphasis added.)
19     Accordingly, the ratio in Jobidon could be stated as follows:

20     In the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where bodily harm, as defined in s. 267(2) of the Criminal Code, is occasioned. Thus, the logical inference, of which I spoke earlier, would now be that consent is effective as a defence where the level or degree of bodily harm falls short of, or does not meet, the definition found in s. 267(2).

 

My thoughts on how we can use this: Jobidon is the leading case on consent being vitiated, and the policy considerations underlying the decision provide important insights into why the court came to this decision. The court talks of fist fights and brawls, and how public policy dictates that these activities be discouraged. It is clear that public policy had a huge role in Jobidon, and public policy does dictate that people not consent to their own deaths in voluntary fist fights. However, for our client, the situation was neither an active fistfight (He was attacked by another group of people, and he responded to defend himself), and it is not clear if public policy would dictate that consent or the mistake of fact with respect to consent be unavailable in this case. It would be entirely unjust if a person responding to a brutal attack is the one who is charged with assault, and cannot argue mistake of fact w.r.t. consent, while the instigators of the violence are used as witnesses against him. This is clearly not what Jobidon envisaged when it talked about consent being vitiated. Mistake of fact w.r.t. consent should be very much a live issue in our case.

In the above case (R. v. Nash  [1996] O.J. No. 4239), the judge finds that Jobidon did not eliminate consent as a defence in cases of assault simpliciter 2. According to Jobidon, the level of bodily harm that must be suffered, before consent will be ineffective as a defence, is “bodily harm” as defined by s. 267(2) of the Criminal Code. 3. The altercation, in the case at bar, is not of such a nature that public policy should proscribe the defence of consent.

Ultimately, Jobidon is a case about public policy. The court needs to consider whether public policy mandates that a victim of an assault by a group of men be the target of the criminal sanction. Other cases have cited Jobidon and discussed public policy reasons for finding the accused guilty or not guilty.

QUESTION: WHAT IF YOU consent to a fight and cause bodily harm but did not intend to do so? The law is less clear. Supreme Court cases after Jobidon suggest that bodily harm must be intended and caused. English law suggests that bodily harm must be intended or caused.

R. v. Amos [1998] O.J. No. 3047

1     THE COURT (endorsement):– The policy considerations and legal principles which inform the reasoning of the Supreme Court of Canada in R. v. Jobidon (1991), 66 C.C.C. (3d) 454 and this court’s decision in R. v. Welch (1995), 101 C.C.C. (3d) 216 have no application to the case at hand.

2     In Welch, Griffiths J.A. stated at p. 238 that, “the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” Griffiths J.A. went on to observe at p. 239 that — “[A]lthough the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.”

3     In Welch, the court was concerned with sado-masochistic sexual activity involving the deliberate infliction of pain and injury, conduct which the court described as being “inherently degrading and dehumanizing.” The same cannot be said about the sexual conduct engaged in by the appellant. There is no suggestion in the evidence that the appellant deliberately inflicted injury or pain to the complainant. Moreover, it cannot be said that anal intercourse is inherently degrading and dehumanizing or that it constitutes socially unacceptable conduct, particularly in view of s. 159(2) of the Criminal Code which excepts from criminal liability anal intercourse between consenting adults in private.

4     It follows, in our view, that the trial judge erred in concluding that the resulting bodily harm to the complainant rendered irrelevant the presence or absence of consent on her part. Given the trial judge’s finding that the Crown had failed to prove lack of consent beyond a reasonable doubt, in the particular circumstances of this case, the conviction cannot stand.

R. v. Bruce [1995] B.C.J. No. 212

The Jobidon case on its facts applied to the vitiation in law of apparent consent in fact where the force was intentionally applied in the course of a fist fight or brawl and the force was such as was intended to cause and did cause serious hurt or non-trivial bodily harm. Counsel for the appellant in this appeal argued the very same standard of public policy vitiation of consent as is derived from the facts of the Jobidon case should be applied in cases of family altercations. However, I do not think that the same standard that applies to brawls and fist fights between grown men should apply to domestic altercations between a man and a woman. In the public interest I think that the public policy discussed in Jobidon and which underlies the decision in that case must take a stricter view of the level of applied force which should vitiate apparent consent as a matter of law in domestic altercations than it does in brawls and fist fights. In my opinion, the intentional application of sufficient force as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercation between a man and a woman.

08 February
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Unreasonable Search and Seizure — ACM –Airbag Control Modules

Posted by Rory
in Charter Rights, Search Warrants

Airbag Control Modules

In R v Hamilton 2014 ONSC 447, the Court conducts an exhaustive analysis of what constitutes unreasonable search and seizure as per section 8 of the charter. The issue in this case is whether accessing the data stored on the Airbag Control Module (“ACM”) without prior judicial authorization violates s8.
The court establishes that s8 analysis consists of asking if a) there is a reasonable expectation of privacy b) the search was reasonable.
A-Reviewing the case law, the court points out that whether an expectation exists, it is necessary to look at a)The Applicant’s Subjective of Privacy and b) Is the Expectation of Privacy Objectively Reasonable in the Totality of the Circumstances?
The subjective component is not a high threshold, and it depends upon the subject matter of the search and whether the applicant had a direct interest in it. The court notes that the subject matter of the search was not the ACM as a physical object, but the date stored within in, and that the applicant had a direct interest in the data.
Whether the expectation is objectively reasonable depends on a number of questions, suggested in Edwards. The court examines these questions and finds that the expectation was objectively reasonable.
Finding that a reasonable expectation of privacy exists, the court evaluates whether the search was reasonable. The court finds that -1-The search was not authorized by law and that 3-the search itself was not reasonable. 2-The court does not address whether the law in question was itself unreasonable.
It is important to note that the court’s analysis in both establishing that there is a reasonable expectation and that the search was unreasonable acknowledges the problematic nature of the officer’s conduct. There is not a single factor that the court finds in favour of the crown in this part of the analysis. And this forms the bulk of the decision. The court spends an awful lot of time in establishing that the conduct was a breach of s8.
However, when it comes to the remedy under s24, the analysis is brief and the court is quick to establish that the administration of justice will not be brought into disrepute by including this evidence. The court says that the 1- the charter breach is not particularly serious, and that the court must take into account the conduct of the applicant that led to the charter breach. 2-The court also says that the impact on the charter protected interests of the applicant is moderate and that 3- the reliability of the evidence weights in favour of inclusion (Society’s interest in an adjudication on the merits)
Balancing the factors, the court finds in favour of including the evidence.
My thoughts: This case was enlightening purely for the huge gulf between the s8 and s24 analysis. In the s8 analysis the court seems far more cognizant of the accused’s rights, whereas s24 seems to exist solely to provide legal sanction to include evidence that infringes charter rights.

R v Shaw 2016 ONSC 658
The Appellant was convicted of failing to provide a breath sample, but appealed because the testimony consisted of evidence by adult witnesses that was not sworn or affirmed.
The judge reviews the law and finds that for adult witnesses the proper way to receive evidence is by testifying under oath or by solemn affirmation. The cases provided by the crown deal with witnesses with specific considerations for testifying. No such considerations are in operation in the facts here.
The judge notes with approval the cases cited by the Appellant. In Matheson, failure to follow strict compliance with having evidence taken under oath, the process was rejected. Similarly, in Kalkhorany, the court found that a trial procedure could not be remedied when the trial began as a summary conviction, and when the six month time period for commencing expired, the process was converted into a trial by indictment. The court found that the formality of reconstituting the court and taking a proper plea on the process had to be followed or specifically waived.
Rejecting, the crown’s assertion that this was a procedural issue, the judge quashes the conviction.

03 February
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Criminal Harassment

Posted by Rory
in Defences, harassment, harrasment

Criminal Harassment Memo

 

Thoughts on Sillipp and related harassment Cases

I was able to look up a number of cases that cited Sillipp, and based on that have some thoughts on arguments that the offence of criminal harassment isn’t made out on the facts.
R. v. Sillipp 1997 ABCA 346

Sillipp read 264(1) to mean that criminal harassment is established when the crown can prove beyond a reasonable doubt that a) the defendant engaged in conduct described in 264 (2) (a-d) b) Victim was harassed c) intention can be established by knowledge, recklessness, or wilful blindness, d)the conduct caused V to fear for her safety e) V’s fear was reasonable
Mens Rea- Delusion?
Sillipp seems to be the foundational case for Criminal Harassment. In my earlier input into this case, I had suggested using the lack of mens rea as an argument, but case law seems scant on this point. In fact there is an actual case (R. v. Crook [2015] O.J. No. 5849 2015 ONCJ 627) where the judge rejected a psychologist’s testimony that the defendant was delusional and believed himself to be in love (Although in that case the crown prosecutor and the amicus curae-the accused was self represented-urged the judge to not take into account the psychologist’s testimony )
This may be useful for us, however. In Crook, the judge, after accepting the crown and the A.C’s suggestion to disregard the psychologist’s testimony, went on to consider whether mens rea was established regardless. In this case, it wasn’t because 1)the delusion was limited to another facet of the case and 2)the delusion did not properly explain Mr. Crook’s actions
20 First, the delusions identified by Dr. Van Impe are limited to the belief that Lisa and Brent were not the parents of the children living with them and that Lisa might ultimately enter into a relationship with Mr. Crook. These delusions do not extend to a belief that the Aube children had been abducted, although the suggestion of abduction is either explicit or implicit in the Abduction Communications. Absent that feature as part of Mr. Crook’s identified delusions, his references to abduction is an act naturally resulting in significant perturbation on the part of the Aubes and cannot be excused as part of any fixed and false set of beliefs.
21 Second, Ms. Ross and Mr. Jim point out that Mr. Crook, if the sender, went to some lengths to disguise his identity, posing, for example, as a concerned parent of another child, as a police officer, and as a Toronto Star reporter. As Ms. Ross put it in Exhibit 31, “had he truly wanted to ensure the safety of abducted children, he could and should have marched into a police station or CAS office”. Assuming Mr. Crook sent the Abduction Communications, his surreptitiousness in doing so would undercut the concern which I initially entertained that Mr. Crook was, from his delusional perspective, merely engaging in an exposure of the Aubes as wrongdoers. I accept from counsel’s submissions that Mr. Crook, as sender, perceived that the sending of the Abduction Communications was wrong. Moreover, even if Mr. Crook were incapable of an appreciation of the culpability of each consequence of the sending of the Abduction Communications, so long as the Crown proves mental culpability in respect of the sending itself, mens rea is established: R. v. DeSousa, [1992] S.C.J. No. 77 (S.C.C.); R. v.Krushel, [2000] O.J. No. 302 (O.C.A.).
Harassment
There is a case to be made that the complainant wasn’t harassed in this case. It is important to note that 1-criminal harassment is a high threshold.

R. v Alvarez-Gongora, 2014 ONCJ 712,
42 For the complainant to have been harassed or to have felt harassed, it is not enough for the complainant to have been “vexed, disquieted or annoyed”. To have been harassed means to have been “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”. I note that these terms are not cumulative. It can be enough for harassment if any one of these terms is established.
It is useful to look at some cases where criminal harassment has been found. We can argue that Mr. Khedr’s behavior isn’t similar.

R. v. Yannonie [2009] A.J. No. 121 2009 ABQB 4 467 A.R. 336

29 The evidence in Sillipp disclosed the following actions on the part of the Accused:
• – the Accused frequently drove past and parked near the home and office of the first complainant (his ex-spouse) and the apartment of the second complainant;
• – the Accused frequently followed the first complainant’s vehicle for short distances and swerved at her vehicle on one occasion;
• – the Accused followed the second complainant’s vehicle for short distances as well;
• – the Accused followed the complainants through several specific locales in St. Albert and Edmonton;
• – the Accused followed the second complainant to the Edmonton International Airport where she was to pick up the first complainant from an incoming flight.

R. v. R.G. [2001] Y.J. No. 12 2001 YKSC 2

51 The point is that conduct which causes a complainant to be “vexed, disquieted or annoyed” is not sufficient. The complainant must be “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered.”
52 It is clear from the evidence of M.O., Olga Anderson and Bruce Webber that M.O. was harassed. She was fearful and in a state of agitation that caused her to run for several blocks to find a safe haven. Constable Letendre, who attended at the 4050 Fourth Avenue apartment, described M.O. as very scared, anxious and talking quickly. In short, she was not annoyed, but rather, she was tormented, troubled and badgered.
R. v. P.R.B. [1999] A.J. No. 1589 1999 ABPC 158 263 A.R. 90

16 Ms. L.B. described the effect of the defendant’s actions on her and her family in the following words:
I live with my parents. We are fearful for our safety; we’ve had a security system installed in our house. We don’t even feel comfortable going into our back yard without looking over our shoulders. I’m constantly looking in my rear view mirror when I’m driving. It’s a very uncomfortable situation to say the least and I’m fearful for my safety. Like I said, he’s very unpredictable and I just don’t know what to expect next.
Looking at the totality of the defendant’s conduct, including the content of his voice-mail messages, and accepting the foregoing evidence, I am satisfied to the requisite standard that the complainant was indeed harassed.

2-This is related to the requirement that the victim must fear for her safety or someone else close to her. Either proving lack of fear or lack of harassment is good enough, both seem to rely on similar criteria.

R. v. Raymond [2014] Q.J. No. 2193 2014 QCCQ 1833

36 But here, the evidence only shows the complainant was on stress or on edge. She was uncomfortable. She did not have peace of mind.
38 The Crown did not establish beyond a reasonable doubt, that the conduct of the accused caused the complainant to fear for her safety or the safety of anyone known to her.
A case where fear wasn’t found.

R. v. Hnatiuk [2000] A.J. No. 545 2000 ABQB 314

41 However, as was pointed out in Sillip, in order to convict an accused of criminal harassment, it is not enough to be satisfied beyond a reasonable doubt that the conduct troubled or badgered the complainant, the court must also be satisfied that the conduct caused the complainant to fear for her safety or the safety of anyone known to her and the fear must, in all of the circumstances, be reasonable.

42 The evidence in this case fails to establish beyond a reasonable doubt that Ms. Haavaldsen reasonably feared for her safety. In fact, the evidence does not establish that Ms. Haavaldsen feared for her safety. Indeed, when the worst of the conduct occurred, which was the threat which occurred during the mediation, the Haavaldsens decided to continue with the mediation. When the mediation was unsuccessful, the Haavaldsens continued with their life, as before. The evidence establishes that they were annoyed by the Hnatiuks, but they were not in fear of them. Ms. Haavaldsen testified, for example, that she continued to go outside, continued to tend her garden, continued to meet her children, continued to walk her dog, etc. Ms. Hnatiuk has argued that the Haavaldsens “gave as good as they got”; the evidence may not go that far, but certainly the evidence establishes that the Haavaldsens were not in fear of the Hnatiuks.
2-Multiple cases stress that to establish criminal harassment, it is necessary to examine the background and context and the details of the relationship.

R. v Alvarez-Gongora, 2014 ONCJ 712,

44 When the Court is considering whether the elements of the offence have been made out, the approach is a contextual one. It is a question of fact for the Court to determine in each case. The Court must consider the conduct that is the subject of the criminal harassment charge against the background of the relationship and the history between the complainant and accused.

R. v. P.M.B. [2011] B.C.J. No. 2499 2011 BCPC 370

10 In order to examine whether the elements of the offence are made out, the court must look beyond the letters and their content and examine the context in which they were written.
Misc

R. v. Wease [2008] O.J. No. 1938 78 W.C.B. (2d) 381

29 The trial judge acknowledged that Mr. Wease did not actually know Mrs. Wease considered herself harassed. (might have some utility for us) Having acknowledged this, however, the trial judge found that the appellant was, at the very least, reckless or willfully blind, “in my opinion, and I think clearly willfully blind in this matter.” He points out that in the appellant’s testimony he made it clear that he, “just didn’t care what effect his actions would have upon the complainant”, and in the trial judges opinion that, “clearly amounts to an admission of willful blindness and by his very acts, I think, he can also be taken to be reckless as to whether or not Mrs. Wease was harassed. Therefore, the third essential element has also been established beyond a reasonable doubt in this matter.”
30 The evidence, however, must be taken in context and it is my view that it does not support such a finding.

R. v. Davis [1999] M.J. No. 477 143 Man.R. (2d) 105

Talks about subjective and objective fear

R. v. Pringle [1999] O.J. No. 3704 43 W.C.B. (2d) 487 No. 982384

14 In the case at bar, the “proscribed conduct” is that specified in para. 264(2)(b) of the Code, to wit, “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them”. Within the charge period, there are 2 written communications, eligible for consideration (Exhibits #1 and #3). I have considered all of the evident pre-charge period conduct of Accused toward Complainant, and find it to amount to no more than non-criminal “workplace harassment” (might have some utility, seem to be different kind of harassments), as between co-employees, notably weird and eccentric behaviour, but not manifestly “criminal” nor “threatening”.

08 January
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The Intoxilyzer

Posted by Rory
in Intoxylizer Operation

Operating the Breath Instrument (Intoxilyzer) Correctly

 

An excellent decision was provided by Judge Higgerty in Edson, Alberta. The defence counsel in the case was Alan Pearse.

Burping into the Intoxilyzer

The evidence was that the Accused was taken out of the phone room after speaking with a lawyer and asked to provide a breath sample. Given that 15 minutes had not elapsed between being taken out of the phone room and positive evidence that the accused had not burped the judge had reasonable doubt that the machine was not being operated properly. Here is an excerpt:

Depending on whether one is a defence lawyer or a prosecutor, one tends to refer to an Intoxilyzer as a machine or an instrument; being an ex-prosecutor, I will refer to it as an instrument. Certainly a very precise instrument authorized by Parliament to be the centrepiece, if you will, a tool of great use in weeding out impaired drivers on the road, but the fact remains that in many cases an accused is being convicted by an instrument. And I only say that, and it is perhaps a bit of an exaggeration, a bit of a stretch, but I say that in all seriousness because that underscores that the instrument must be operated correctly in order to bring it within the parameters of the Criminal Code of Canad which essentially allows hearsay evidence, a certificate, to be essentially the entire case against an accused.

The requirement is 15 minutes, as set out by the manufacturer, although it seems to be acknowledged by the case law that in most cases 5 minutes would be sufficient, but the manufacturer says 15 minutes. And there is a very good reason for this, the presence of mouth alcohol can result in an unreliable reading.

I did have a question earlier on, and I can perhaps answer my own question, does the accused have to adduce positive evidence that he burped or belched or chewed on a cough drop, that type of thing, during that 15-minute run-up to the first sample and, indeed, I suppose, prior to the second sample as well? And in the real world, given that Officer Jackson had difficulty on the subject of slurred speech, how could we expect an ordinary accused to remember if he or she burped within the 15 minutes prior to providing a sample? So I find that this 15-minute requirement is just as important for the operator to ensure as flipping the right switch at the right time. The 15-minute requirement is an integral part of the operation of the Intoxilyzer and the manufacturer’s requirement was not complied with. I will not speculate as to, and I am lapsing into the vernacular, aw, shucks, golly, it does not mean that much anyway. I will not go there. The facts, to me, are the instrument was operated incorrectly, the manufacturer required that 15 minutes, that 15 minutes was not observed and, therefore, in my view, the instrument was not operated correctly and the presumption cannot be relied upon. Therefore, on the over 08 charge, I also find the accused not guilty.

For a copy of the decision please contact my office at 780-429-4004.Intoxilyzer

 

03 January
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Expert Witness

Posted by Rory
in expert evidence

Expert Witnesses

 

A recent case I found to be very troubling. Thankfully, the judge made the right decision and refused to allow the evidence of an expert witness to be admitted to the jury.

In R. v. Calnen [2015] NSSC 330 the Crown sought to tender the opinion of an expert witness, a medical doctor, Dr. Marnie Woods, about the cause of death of the deceased. Let me say at this juncture I am troubled that the Crown would attempt to lead this type of evidence.

The case concerns a fall from a flight of stairs. The defence theory was that the fall caused the death of the deceased. The crown sought to tender expert evidence which went to “the cause and manner of death”.

Doctor’s Opinion

The doctor stated:

“instantaneous death after such a fall would be distinctly unusual given my experience and the reports described in the reviewed literature” but qualified her opinion “many variables and individual factors must be considered … it is not reasonable to describe one expected outcome … the ability to comment more specifically on this case is limited by the absence of a body [she did not examine the body]”.

If you dissect what the doctor is saying here, she is really saying nothing at all. Her evidence can be rewritten as follows:

falling from a flight of stairs usually doesn’t cause death but I can’t be certain that it didn’t in this case because I haven’t seen or examined the body.

The judge in this case found that the doctor’s evidence was too speculative to have merit. Rather, the judge was persuaded by another doctor’s opinion that the evidence sought to be tendered was “anecdotal” and that the cases Dr. Woods referenced were “unpublished”.

I am reminded of how important the scientific method is, and how in this case it was violated in many respects. The scientific method calls for a theory which can be tested. Results are then published so that they can be re-tested and scrutinized via peer review.

In this case the Crown doctor had a theory. She did not examine the body or review the medical history of the deceased to test her theory nor did she use published cases in support of her theory. The doctor’s opinion runs afoul of the scientific method.

Finally, in this case the judge also did not allow the expert evidence because it went to the ultimate issue of the case – murder v accident.