ARCTIC OBITER

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NWT DECISION DIGEST SUPREME COURT CRIMINAL LAW – PARTY LIABILITY – AFTER-THE-FACT CONTRIBUTION TO AN OFFENCE R v Letawski 2013 NWTSC 11 (February 21, 2013) Presiding: Justice L.A. Charbonneau For the Appellant: C. Davison For the Respondent: D. Vaillancourt The appellant was with a female friend when they found her spouse in bed with another woman. An incident ensued in which the female friend broke a bottle over the other woman’s head. The victim attempted to leave and the appellant pushed her back from the door. Maureen McGuire Alberta Justice Edmonton The appellant was charged and convicted as a party to the assault with a weapon. He appealed his conviction on the basis that the after-the-fact push could not found liability as a party to the assault with a weapon. Appeal allowed – Section 21 of the Criminal Code applies to actions occurring before or during the commission of an offence. Here, the assault with the bottle was not still ongoing when the appellant pushed the victim. The assault with a weapon was complete by that time and the appellant’s push cannot be said to be part of that transaction. The push was a separate assault, but was not the offence charged. Party liability for after the fact conduct is pursuant to section 23 of the Code (not applicable here), not section 21. ~ CRIMINAL LAW – CREDIBILITY ASSESSMENT R v Sikyea 2013 NWTSC 12 (February 20, 2013) Presiding: Justice L.A. Charbonneau For the Crown: D. Vaillancourt For the defendant: T. Boyd The complainant testified the accused broke into her home and sexually assaulted her. The accused testified he was invited in and had consensual sex with the complainant. Accused convicted of break, enter and commit sexual assault -- Assessment of credibility is not an all-or-nothing exercise. The trier of fact is free to accept some aspects of a witness’s testimony and reject others. The accused’s versions of events simply did not make sense and was unbelievable – it was rejected. There were problems with the complainant’s evidence, but those problems did not compromise her credibility on the key issue. ~ CRIMINAL LAW – SENTENCING – BREAK, ENTER AND COMMIT SEXUAL ASSAULT – CONSIDERATION OF ABORIGINAL HERITAGE R v Sikyea 2013 NWTSC 13 (February 20, 2013) Presiding: Justice L.A. Charbonneau For the Crown: D. Vaillancourt For the defendant: T. Boyd Offender sentenced to seven years’ imprisonment for break, enter and commit sexual assault – The offender broke into the victim’s home and sexually assaulted her while she was sleeping. Invasion of a person’s home is an aggravating factor. Sexual assault by forced intercourse is a very serious type of sexual assault because it shows the complete and blatant disregard for the personal integrity and dignity of the victim. The starting point for this type of sexual assault is three years. There were no mitigating factors. The offender was of aboriginal descent and had been exposed to systemic factors that many abo rigi nal offenders face. However, when dealing with serious offences and offenders who pose a serious threat to the 22 ■ MARCH/APRIL 2013 ARCTIC OBITER
community, it may not be possible to deal with aboriginal offenders any differently than with nonaboriginal offenders. When someone repeatedly commits serious offences that harm fellow community members, which in this jurisdiction are often other aboriginal people, the different approach that the court has to consider using in dealing with aboriginal offenders cannot result in the imposition of sentences other than jail terms if that is what is required to protect the public. In this case, there were five previous instances where the offender got into a home without permission and was found in the bedroom or doorway of the bedroom of a sleeping woman or young girl. The paramount sentencing consideration has to be the protection of the public. The present offence was committed within months of his last release from jail. ~ CIVIL PROCEDURE – EXPERT EVIDENCE Anderson v Bell Mobility 2013 NWTSC 14 (March 11, 2013) Presiding: Justice R.S. Veale For the Applicant/Defendant: R. Deane, B. Dixon For the Respondent/Plaintiffs: K. Landy, D. Fogel The defendant brought an application under Rule 278.6, objecting to the admissibility of the plaintiffs’ expert evidence. The plaintiffs proposed to call, as an expert witness, a researcher from a telecommunications focused research group. Application dismissed – Expert evidence is presumptively inadmissible unless the party tendering it can establish its admissibility on the balance of probabilities. Even if the Mohan preconditions are met, the trial judge as gatekeeper has discretion that involves a cost benefit analysis. In this case the expert opinion of the proposed witness is admissible because it has sufficient threshold reliability and it is relevant. It is necessary to assist the trier of fact, as it is beyond the experience of any trial judge. No exclusionary rule has been identified and the witness is suitably qualified. ~ CRIMINAL LAW – SENTENCING – TRIAL JUDGE’S DUTY WHEN SENTENCING OUTSIDE THE PROPOSED RANGE – FAILURE TO REFER TO GUILTY PLEA – IMPOSITION OF MAXIMUM SENTENCE – CONSIDERATION OF GLOBAL SENTENCE R v Bugghins 2013 NWTSC 16 (March 20, 2013) Presiding: Justice V.A. Schuler For the Appellant: C. Jarock For the Respondent: M. Johnson The appellant appealed his ARCTIC OBITER MARCH/APRIL 2013 ■ 23
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Page 3 and 4: CBA-NT BAR NOTES ’d like to begin
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Page 7 and 8: MAKING A SPLASH FOR CHARITY Yellowk
Page 9 and 10: WILLS SEMINAR DRAWS A CROWD Yellowk
Page 11 and 12: THANK YOU! The CBA-NT Young Lawyers
Page 13 and 14: CBA INTERVENES AT SCC IN SUMMARY JU
Page 15 and 16: ON TOPIC THE CBA ON THE FUTURE OF T
Page 17 and 18: PUBLIC INTEREST HOME BUYING AFTER A
Page 19 and 20: suggestions. However, the former wa
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Page 27 and 28: order was appropriate. ~ CRIMINAL L
Page 29 and 30: causing bodily harm. The accused te
Page 31 and 32: S.C.C. UPDATE HERE IS A SUMMARY OF
Page 33 and 34: NWT LEGISLATIVE UPDATE Kelly McLaug
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ARCTIC OBITER

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