ARCTIC OBITER

More documents

Recommendations

Info

18 | <strong>ARCTIC</strong> <strong>OBITER</strong> CRIMINAL LAW – APPEALS – FITNESS OF SENTENCE R v Sabourin 2011 NWTSC 53 (CanLII) | October 13, 2011 Presiding: Justice V. Schuler The Appellant: Self-represented For the Respondent: D. Rideout The appellant appeals his 10 month sentence for assault with a weapon, assault and breach of recognizance (x2). He had pleaded guilty to all charges. In the first offence, the appellant beat a sleeping man with a golf club. While on release on that charge, the appellant held a second victim against a wall and punched him in the face four times at a party. He then later saw that victim outside in the street, and there punched him and choked him. The appellant also breached a recognizance by having contact with two individuals he was prohibited from contacting. The appellant was 21 years old and had no prior criminal record. Appeal dismissed – The sentence is not unfit. CASES CITED R v LM, 2008 SCC 31 TERRITORIAL COURT NEGLIGENCE - BREACH OF STATUTORY DUTY – DOG BY-LAW Leblanc v Pisz 2011 NWTTC 16 | July 29, 2011 Presiding: Judge B. Schmaltz For the Plaintiff: T. Caisse, R. LeBlanc The Defendant: Self-represented Claim by the plaintiff for damages and lost income resulting from the defendant’s dog being at large on the road and being hit by the plaintiff’s taxi. Claim dismissed – An owner is not liable for the actions of a dog unless scienter, or intent or knowledge of wrongdoing on behalf of the owner, is proved. Breach of the Dog By-Law does not, of itself, prove the defendant was negligent. Although the defendant’s property was adjacent to the highway, and it was possible for the dogs to get to the highway, it was contrary to the dogs’ nature to run away or to run on the highway. Therefore it was not found that the dogs were on the highway as a result of the defendant’s negligence. Additionally, the damage to the plaintiff’s vehicle was not reasonably foreseeable, and a person is n o t l i a ble i n n e g l i g e n c e f o r unforeseeable damage. CRIMINAL LAW – SEXUAL ASSAULT – CAPACITY TO CONSENT R v Ekendia 2011 NWTTC 17 (CanLII) | August 18, 2011 Presiding: Judge B. Schmaltz For the Crown: A. Paquin For the Defendant: L. Stevens The defendant, age 25, had sexual intercourse with the 15 year old complainant. The defendant testified at trial that the sexual activity was consensual and that he believed the complainant was at least 16 years old. The complainant testified that she woke up in bed with the defendant after a night of drinking. She testified she repeatedly told him “don’t”, “I don’t want to do that”, “stop” and “go away” as the defendant forced sexual intercourse. Defendant found guilty – the defendant was not believed. honest with police. He had not been He could not or would not describe the events in a candid and straightforward manner. There was a stark difference between his straightforward testimony about matters that he was being honest about, and his qualified or vague evidence the trial judge found he was lying about. The inconsistencies in the complainant’s evidence, if there were any, were not such that the trial judge would find she was deliberately lying. The trial judge found the defendant had sex with the complainant when she was in such a state as to be incapable of consenting, and while she was telling him “don’t”, “stop” and “go away”. In addition, s. 150.1 of the Criminal Code provides that consent is not a defence where the complainant is under the age of 16 years and it is not a defence that the accused believed the complainant was 16 years of age or more unless the accused took all reasonable steps to ascertain the age of the complainant. The defendant in this case did not do anything to find out how old the complainant was. 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. LINKS TO CASES IN THIS DIGEST ARE DIRECTED TO THE ARCHIVED DECISIONS ON CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/
SEPTEMBER/OCTOBER 2011 | 19 S.C.C. UPDATE HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT. APPEALS CONSTITUTIONAL LAW: CHARTER S.7. S.1; DIVISION OF POWERS Canada (Attorney General) v. PHS Community Services Society (B.C.C.A., January 15, 2010) (33556) 2011 SCC 44 (CanLII) | September 30, 2011 The Controlled Drugs and Substances Act (“CDSA”) is applicable to Insite (a safe injection facility) and the scheme of the CDSA conforms to the Charter. However, the actions of the federal Minister of Health in refusing to extend Insite's exemption under s. 56 of the CDSA are in violation of s. 7 of the Charter, and cannot be justified under s. 1. CRIMINAL LAW: CHILD PORNOGRAPHY R. v. Katigbak (Ont. C.A., June 8, 2010) (33762) 2011 SCC 48 (CanLII) | October 20, 2011 The trial judge below made two errors of law requiring a new trial: by finding that the pornographic material fell within the scope of the pre -2005 artistic merit defence on the ground that the accused possessed the material for an artistic purpose, notwithstanding the fact that the material itself had no artistic merit and was not created for one of the enumerated purposes her interpretation of the phrase "legitimate purpose" in the current version of s. 163.1(6) by inquiring solely into the accused's subjective purpose for possessing the material. CRIMINAL LAW: FRAUD; SENTENCING R. v. Topp (Ont. CA, November 20, 2009) (33529) 2011 SCC 43 (CanLII) | September 23, 2011 Past receipt of illegally obtained funds does not impose an evidential burden on offenders to prove they no longer possess their ill-begotten gains. In the absence of a credible explanation, however, it will often be open to the court to infer that the offender is able to pay a fine, but the court is not legally bound to do so. The probative weight of the inference will depend on the circumstances, and therefore vary from case to case. CRIMINAL LAW: SEARCH & SEIZURE; EXCLUSION OF EVIDENCE; CHARTER S.24(2) R. v. Côté (Que. C.A., February 18, 2010) (33645) 2011 SCC 46 (CanLII) | October 14, 2011 The trial judge's decision to exclude observations made by police at the accused's home and the physical evidence collected pursuant to the warrants was owed deference. C.A.: The misconceived of its appellate role when it substituted its view of the police conduct for the trial judge's and when it placed undue emphasis on the seriousness of the offence holding that the police had not deliberately acted in an abusive manner was contrary to the trial judge's numerous findings of deliberate and systematic police misconduct emphasis on the seriousness of the offence was also misplaced given that the trial judge had acknowledged that the offence was serious and that the seriousness of the offence had been held not to be a determinative factor also erred in placing undue weight on the "discoverability" of the evidence in its s. 24(2) analysis. CRIMINAL LAW: SEXUAL ASSAULT; CONSIDERATION OF THE EVIDENCE AS A WHOLE; CIRCUMSTANCES IN WHICH TRIAL JUDGES' ASSESSMENT OF THE EVIDENCE CONSTITUTES ERROR OF LAW, THEREBY ALLOWING APPELLANT REVIEW R. v. J.M.H. (Ont. C.A., November 26, 2009) (33667) 2011 SCC 45 (CanLII) | October 6, 2011 The trial judge, did not in fact, fail to consider the whole of the evidence, as the Court of Appeal concluded he had. As to what circumstances a trial judge's alleged mishandling of the evidence
Page 1 and 2: ARCTIC OBITER MAY/J SEPTEMBER/OCTOB
Page 3 and 4: SEPTEMBER/OCTOBER 2011 | 3 PRESIDEN
Page 5 and 6: SEPTEMBER/OCTOBER 2011 | 5 THE DIRE
Page 7 and 8: SEPTEMBER/OCTOBER 2011 | 7 Justice
Page 9 and 10: SEPTEMBER/OCTOBER 2011 | 9 Interven
Page 11 and 12: SEPTEMBER/OCTOBER 2011 | 11 can fin
Page 13 and 14: SEPTEMBER/OCTOBER 2011 | 13 NWT LEG
Page 15 and 16: SEPTEMBER/OCTOBER 2011 | 15 RJR - M
Page 17: SEPTEMBER/OCTOBER 2011 | 17 the tim
Page 21 and 22: SEPTEMBER/OCTOBER 2011 | 21 the con
Page 23: SEPTEMBER/OCTOBER 2011 | 23 RESOURC

ARCTIC OBITER

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?