Substantive Flashcards
R v Kirkpatrick
Woman agreed to have sex, but only if he wore a condom. Judge dismissed sexual assault charge based on lack of evidence. Stated that there was no evidence to suggest his failure to wear a condom was fraud under s. 265(3)(c). Judge applied Hutchinson and said that she consented under s. 273.1(1). Crown appealed to BC Court of Appeal finding that it should not have been dismissed on lack of evidence and a new trial is ordered. Under section 273.1(1) when a condom use is a condition for sexual intercourse, it becomes part of the sexual activity to which the person consented. There was evidence that she did not consent to the sexual activity in question. Therefore, there is no need to decide whether failure to wear a condom is fraud and Hutchinson does not apply to this case but in cases for condom sabotage and fraud.
R v Lafrance
Police suspected Lafrance was involved in a murder and got a search warrant for his house in AB. He agreed to go to police station to answer questions where he was interviewed, had his blood sample taken, fingerprinted and the police took his phone and clothing. They did not give him the opportunity to contact a lawyer. When the police arrested him for murder is when he was told he could contact a lawyer. Lafrance appealed his conviction and the SCC agreed he is entitled to a new trial. The police violated his right to counsel on both dates. Because of the power imbalance between him and the police while he was detained these are serious breaches. The right to counsel guaranteed by Charter includes not only informing a detained person of their right to talk to a lawyer, but also giving them time and an opportunity to actually get legal advice. Police obtained the confession and other evidence after his Charter rights were violated so to rely on them would damage reputation of justice system. Evidence should be excluded under s. 24(2) of the Charter.
R v Sundman
The Supreme Court finds an accused person guilty of first degree murder for chasing and then killing a man who escaped from a moving truck. Confinement does not always mean being physically restrained. Forcible or unlawful confinement involves depriving a person of their liberty so that they cannot move about the way they want to. The person does not have to be restricted t a particular place or physically restrained. If the murder occurs during another serious offence, like confinement, treating it as first degree murder does not mean that the confinement and the killing need to happen exactly at the same time. The test is whether the confinement and the murder were part of the same transaction or interaction, or if they represented a single continuous sequence of events. In this case the murder happened while the confinement took place.
R v JJ
Ruling upheld constitutionality of recent Bill C-51 amendments to Criminal code which remove barriers for complainants within the sexual assault trial processes. It upheld the amendments as constitutional and gave clarity on how to interpret them. Individual in this case argued that s. 278.92 and s78.84 of the Criminal Code violated their Charter rights. By upholding the constitutionality of sexual assault evidence admissibility procedures they recognized the continued barriers to reporting for individuals who experience sexual assault and held more needs to be done. Historically, trials provide few if any protections for complainants. They often have their life unjustifiably scrutinized such as to raise questions of credibility which jeopardizes the truth-seeking function of the trial. This case agrees on what record screening regime might include to minimally impair the rights of accused persons and thus be constitutional. a narrow interpretation of “record” should be adopted. S. 278.92 and 278.93 together require an application only where an accused intends to introduce a copy of the actual record into evidence. Judge must screen potentially irrelevant evidence ahead of time when someone wants to introduce the record. Need to protect the accused and complainant.
R v Goforth
Goforth and his wife accused with second degree murder of their 3 yr old foster child and unlawfully causing bodily harm to their second foster child. Failing to provide necessities of life was underlying predicate of both charges. Was convicted of manslaughter and unlawfully causing bodily harm. Majority allowed conviction appeal and ordered a new trial. Majority stated the trial judge’s jury instructions involved several material legal errors pertaining to the mens rea of s. 215 and failed to adequately relate the evidence at trial to the mens rea of s. 215. Crown appealed.
R v Brown
Brown was acquitted at trial of breaking and entering with commission of aggravated assault. He did a B&E while intoxicated and challenged the constitutionality of s. 331 of the Criminal Code, which prohibited from raising the defence of non-mental disorder automatism by reason of self-inducement intoxication where his conduct intereferes with the bodily integrity of another person. Judge held that s. 331 infringed both ss. 7 and 11(d) of the Canadian Charter and struck down that section. Trial judge allowed him to raise the defence with expert evidence and acquitted him on all charges. The court set aside the acquittal and entered a conviction on a less and included offence of aggravated assault. Justices said that because the consequences of voluntarily becoming intoxicated are foreseeable they are not morally innocent.
R v Samaniego
Samaniego and his co-accused were convicted by a jury of possession of a loaded restricted firearm. Alleged he brought it into a nightclub and threatened security guard. Only evidence was testimony of security guard who was friend of co-accused. Multiple mid-trial rulings by the trial judge resulted in defence not being able to cross examine the guard on statements and directed the jury that the guard made prior consistent statements but did not require them to be put in evidence. Ontario Appeal court upheld his conviction as it was within the trial judge’s proper discretion and were entitled to defence. Did not deprive him of material evidence necessary for a defence and did not impact fairness of trial.
R v Stairs
Stairs had multiple convictions and appealed them based on s. 8 and 9 charter breaches. When that application failed he appealed his conviction of possession for purpose of trafficking on section 8. Majority dismissed the appeal but the dissenting opinion created an appeal as of right. he disagreed with the majority’s s. 8 charter breach analysis and conclusion. In order to be justified, the safety search must be reasonably necessary in light of the prevailing circumstances. It is necessary when police have reasonable grounds to believe that there is an imminent threat to their safety. There was no reasonable ground for police to believe there was an imminent threat to them, therefore the warrantless search breached s. 8 rights and the evidence should be excluded under s. 24(2) of the Charter. The issue now before SCC is the grounds that must exist to allow the police to search a residence udner their common law power of search incident to arrest.
R v Badger
Appellant charged with attempted murder. The victim was intoxicated at the time of the utterances when he pointed to the accused as being the one who shot him. He was also heard on 911 call saying the accused nickname as being the person who shot him. Issue of identity. Badger appealed on three grounds: trial judge erred in admitting his spontaneous utterances into evidence; the trial judge erred in assessing his alibi evidence; and the trial judge erred in his assessment of the identification evidence. majority dismissed appeal on all three grounds. Dissenting judge ordered new trial based on the fact the trial judge’s reasons did not subject the identification evidence to the scrutiny the law requires and that the verdict was tainted. At SCC, appellant asked for new trial. Issue is whether judge made legal error in assessment of identification evidence.
R v Alas
Respondent convicted by jury of second degree murder for fatally stabbing deceased outside bar. Used self defence as defence. Respondent and crown agreed there was no air of reality to a defence of provocation, focusing on a “cooling off period” during the interaction and other factual circumstances. Trial judge ruled that the defence should not be put to the jury. Majority in Appeal Court of Ontario that provocation should have been put to the jury, set aside the conviction, and ordered a new trial. In majority’s view, two discrete incidents could constitute as the potential provocation act. There was no “cooling off period” between the second act and the stabbing. While the factual circumstances negated the subjective elements of provocation, it remained open to the jury to conclude otherwise. Respondent appealed to the SCC as of right.
R v Gerrard
In a judge alone trial Gerrard was convicted of 13 charges related to assaulting, threatening, and damaging the property of his common law spouse over a period of 8 years. Applying principles set out in SCC decision R v W.(D.), the trial judge concluded that the complainant was not motivated to lie or embellish her testimony, nor did the evidence give rise to such an interference. Gerrard’s appeal from conviction was dismissed, majority holding the trial judge did not misapply W.(D.). The Court did allow appeal from sentence. The trial judge erred by imposing an illegal sentence and then changing it; she was functus officio when she attempted to do so. Dissent said there should be appeal from conviction and new trial–judge relied on negative credibility findings to conclude complainant’s evidence was reliable and assessed her evidence in isolation, concluding it raised no reasonable doubt, shifting burden of proof to Gerrard. Gerrard appealed to SCC
R v Boulanger
Case focuses on issue of s. 11(b) of the Charter. Considers whether two particular periods of delay are to be attributed to defense due to their conduct. Lower court granted motion for a stay of proceedings pursuant to s. 24(2) of the Charter. Crown appealed Quebec Court of Appeal and it was dismissed on different analysis but same conclusion. Justice Chamberland dissented allowing Crown a right to appeal to SCC. Even though 84 days of delay was attributable defence all of the second delay was not and it exceeded more than 30 months, making the Jordan ceiling being exceeded and the delay therefore unreasonable.
R v Bissonnette
B burst into a mosque and opened fire on worshipers. Pled guilty to 12 charges laid against him and automatically received life imprisonment for first degree murder. Crown also asked that s. 745.51 of the Criminal Code be applied, which authorizes a court to order that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. Sentencing judge concluded provision infringes ss. 12 and 7 of the Charter, and that the limits on the protected rights had not been justified in a free and democratic society. B appealed to Quebec Court of Appeal which held that s. 745.51 does infringe on s. 12 and 7 however the constitutional incompatibility identified by the sentencing judge goes to the very heart of the provision and that reading is not appropriate. Declared s. 745.51 of the Criminal Code invalid and of no force or effect.
R v Brunelle
Following a trial for offences resulting from road rage, Brunette is found guilty of aggravated assault, assault with a weapon and possession of a weapon for a dangerous purpose. Trial judge does not believe respondent acted in self defence but rather retaliated and took revenge. Quebec Court of Appeal allowed appeal, quashed guilty verdicts and ordered new trial. Majority held trial judge erred in the analysis of the second condition of self-defence. The issue in dispute is whether the trial judge’s conclusion that the respondent acted out of vengeance finds sufficient support in the evidence and is free from manifest and overriding error. Dissenting judge says he is.
R v White
Crown appeal of decision in Court of Appeal of Newfoundland and Labrador allowing White’s appeal, setting aside his conviction , and ordered a new trial. Case deals with defendant’s claim of ineffective assistance of counsel, as it relates to Counsel failing to obtain his informed instructions regarding his election of mode of trial. Charged with multiple offences and Crown proceeded summarily on three hybrid offences with aggravating assault entitling him to an election to mode of trial, His lawyer did not inform him of his right to choose leading to miscarriage of justice. Majority held it was a miscarriage of justice and unlike where trial fairness is at issue, the accused is not required to establish further prejudice. Dissent said that prejudice had to be proven for a miscarriage of justice and new trial.
