ARCTIC OBITER

causing bodily harm. The accused
testified that the complainant
sustained her injuries while
attacking him, and that he did not
touch her. The complainant
testified he assaulted her. His
evidence was fantastic, far fetched,
and preposterous. His evidence
could not raise a reasonable doubt.
The complainant was believed.
There was no justification. This
was not done in self-defence, nor
was it a consensual fight.
~
CRIMINAL LAW – SENTENCING
– DISCHARGES –
CONSIDERATION OF
ABORIGINAL HERITAGE
R v Bourke
2013 NWTTC 07 (April 3, 2013)
Presiding: Chief Judge R.D. Gorin
For the Crown: J. Wynne-Edwards
For the Defence: M. Hansen
The 32-year-old Aboriginal
offender pleaded guilty to
assaulting a police officer and
breach of an undertaking. The
offender called the police to her
home. When her husband was
arrested she took offence. She was
intoxicated. When the officer told
her he would report the matter to
social services, she punched him in
the shoulder. The guilty plea is a
sign of remorse and has saved the
Crown the resources which would
otherwise have been required to
prosecute the case. The offender
had no prior criminal record. The
Crown sought a suspended
sentence. The defence sought a
conditional discharge.
Conditional discharge granted –
Section 718.2(e) does not apply
directly as imprisonment is not
being considered. However, casespecific
factors having to do with
the A bo rigi nal offender’s
background can lessen the moral
blameworthiness of the offender.
A restorative approach would be
one which does not leave the
offender with a criminal record
that could interfere with her
rehabilitation and integration into
society in the future.
~
CRIMINAL PROCEDURE -
DISCLOSURE – MISTRIAL
R v DD
2013 NWTTC 08 (April 12, 2013)
Presiding: Judge G. Malakoe
For the Crown: J. Bond
For the Accused: C. Davison
The accused sought a mistrial after
conviction but prior to sentencing
on a charge of sexual assault, after
discovering the father of the
complainant has been charged (but
not convicted) with assaulting the
complainant in the past. One of
the charges against the father had
been stayed, three had been
withdrawn, and one ended with an
acquittal after trial. The accused’s
trial turned on an assessment of
the credibility of the accused, the
complainant, and her father.
Absent a specific request by
defence, there is no duty to
disclose criminal charges against a
witness which are finished and did
not result in a finding of guilty.
For this reason, there was no
breach of the accused’s right to
make full answer and defence.
Application for a mistrial denied --
C ro s s- e xami n a tion o f t h e
complainant and her father on the
issue of the past charges could not
reasonably be expected to have
affected the result.
■ Maureen McGuire is an Appellate
Counsel with Alberta Justice. She is a
member of the Bar in the NWT, Ontario,
and Alberta. Any comments or questions
regarding case digests would be
welcomed at her email address,
Maureen.McGuire@gov.ab.ca.
ARCTIC OBITER MARCH/APRIL 2013 ■ 29