Selected Developments in Criminal Law. Prof. Vanessa MacDonnell

Transcription

1 Selected Developments in Criminal Law and Evidence Prof. Vanessa MacDonnell

2 Selected Developments in Criminal Law & Evidence: Overview SCC clarified the nature and scope of the s. 10(b) right to counsel in the context of custodial interrogation (Sinclair). SCC and NSCA rendered decisions related to defences: Provocation (Tran) Duress (Ryan) SCC clarified nature of consent in sexual assault (J.A.).

3 Sinclair Sinclair told he was being arrested for second degree murder. Given standard police caution and an opportunity to consult counsel. Sinclair spoke briefly with a lawyer on two separate occasions p y y p before being interrogated.

4 Sinclair (2010 SCC 35) Two issues: Does the accused have a right to re instruct counselduring a police interrogation? Does the accused have the right to have counsel present during a Does the accused have the right to have counsel present during a police interrogation?

5 Sinclair During his five hour interview with police, Sinclair repeatedly exercised his right to silence and stated that he did not want to speak with police in the absence of his lawyer. While affirming his right to silence, police continued to question him. Eventually Sinclair provided a full confession and participated in a re enactment enactment at the crime scene with police.

6 Sinclair Majority (5), per McLachlin CJ and Charron J Right to silence has two basic components: informational and implementational. Focuses on interaction between (1) right to silence and (2) right to counsel. Defines (2) in relation to (1).

7 Sinclair Majority No right to have counsel present during interrogation. This view of s. 10(b) goes against 25 years of jurisprudence defining s. 10(b) in terms of the right to consult counsel to obtain information and advice immediately upon detention... Not consistent with purposive interpretation of s. 10(b); confessions rule; public interest in effective law enforcement.

8 Sinclair Majority Limited right to consult counsel a second time where there has been a material change in the detainee s situation after the initial consultation. Three examples of material change given (category not closed): New procedures involving detainee Change in jeopardy Reason to question the detainee s understanding of his s. 10(b) right.

9 Sinclair Majority Additional concerns about subjective incapacity or intimidation should be addressed through confessions/right to silence framework, not right to counsel.

10 Sinclair Dissent, per Binnie J Focuses on cumulative effect of Oickle, Singh and Sinclair on rights of the accused and on police powers. Binnie J says police have been given a powerful new trump card by the majority. Focuses on what s required for meaningful assistance of counsel. Binnie J would allow detainee to consult counsel a second time Binnie J would allow detainee to consult counsel a second time both in response to changed circumstances and evolving circumstances.

11 Sinclair Dissent, per Binnie J For second consult, need request to (1) satisfy a need for legal assistance, and (2) be reasonably justified by the objective circumstances. Police make the call re. whether to facilitate additional consult; Binnie J lists factors to consider. No right to have counsel present (would unduly interfere with police doing their job).

12 Sinclair Dissent, per LeBel and Fish JJ Adopt continuum approach to right to counsel. Arrest or detention is only a triggering event. Reject Binnie J s approach [d]etainees are constitutionally entitled to consult counsel without having to persuade their interrogators that their wish to do so is valid or reasonable. Do not decide question of whether accused has right to have counsel present.

13 Sinclair Four Potential Problems with Majority s Reasons 1. No obvious textual basis for limiting scope of s. 10(b) based on public interest in law enforcement. See dissent of LeBel and Fish JJ.

14 Sinclair Four Potential Problems with Majority s Reasons 2. Not obvious that right to counsel is only about facilitating meaningful exercise of right to silence majority s reasons may have limiting effect on future cases. See dissenting reasons of LeBel and Fish JJ.

15 Sinclair Four Potential Problems with Majority s Reasons 3. Material change in circumstances does not include the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against thi him.

16 Sinclair Four Potential Problems with Majority s Reasons 4. Majority s statement that detainee, by virtue of right to silence, has ultimate control over the interrogation, is inconsistent with what we know to be the reality of custodial interrogations. See dissenting reasons of LeBel and Fish JJ. Downplays vulnerability of detainee.

17 Tran (2010 SCC 58) Provides helpful overview of defence of provocation; foreshadows how cultural factors might (not) relate to availability of provocation as a defence. Accused breaks into home of estranged wife; finds her in bed with new partner. Inflicts fatal stab wounds on the partner; also injures estranged wife. At trial, argues provocation as a defence.

18 Tran (2010 SCC 58) Unanimous judgment, per Charron J.: Reiterates elements of provocation: 1. Wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self control (objective); 2. Accused acted upon the insult on the sudden and before there was time for his or her passionsto cool (subjective).

19 Tran (2010 SCC 58) Court notes that prevailing social mores and judicial attitudes have played an important role in defining what amounts to provocation at law. Sets the scene for making adjustments to defence of provocation so that it comports with current social mores and judicial attitudes, inc. Charter values such as equality.

20 Tran (2010 SCC 58) In considering the objective dimension of the provocation defence, contemporary society s norms and values, as informed by Charter values (esp. equality), become relevant. So Ordinary person doesn t possess antiquated beliefs about men s control over women in intimate relationships; concept of honour. Finding your estranged wife in bed with a new man isn t an insult within the meaning of the provocation defence.

21 Tran (2010 SCC 58) Tran came into the home unannounced and uninvited. He also suspected the liaison and that was his reason for breaking into the apartment. So no air of reality to the provocation defence.

22 Tran (2010 SCC 58) Significance of Tran for the culture cases?

23 Ryan Accused arrested after contracting with an undercover police officer to kill her abusive spouse. At time of alleged offence (counselling an indictable offence), accused was living separate and apart fr. her spouse; had sought a divorce. At trial, accused testified to a long history of violent and controlling behaviour by the spouse.

24 Ryan Accused also testified that she had approached the police and Victim Services for help, to no avail. Expert psychiatric evidence of battered woman syndrome or a chronically abusive relationship provided.

25 Ryan Issue was whether TJ was correct in holding that the defence of duress was available here. CA unanimously dismisses Crown s appeal; concludes defence of duress available even though typically duress concerns a threat emanating fr. a third party.

26 Ryan CA reviews requirements for duress defence; SCC s dicta in Perka and Ruzic. Note that statutory defence (s. 17 CC) at issue here because accused is principal perpetrator (Paquette). Recall that in Ruzic immediacy and presence requirements struck down.

27 Ryan Two question here: Can duress apply at all here, or is the accused trying to do an end run around the requirements of self defence? What do the accused s experiences as a victim of domestic violence affect the assessment of whether (1) a reasonable person would have reacted in the same manner as the accused, and (2) whether a reasonable person would have perceived there to be no safe avenue of escape?

28 Ryan CA says that duress can apply, even though it has traditionally been regarded as applying only where the threat emanates fr. a third party. Defence of self defence not available here (criminal act wasn t completed; accuseddidn tdidn perpetrate actual violence). Nature of offence is such that the justification theory of selfdefence wouldn t apply; however, excuse theory of duress might.

29 Ryan Idea is that the accused had no way out of her situation. Voluntariness is a key requirement for grounding criminal liability. So the possibility of invoking duress can t be ruled out.

30 Ryan CA then discusses relevance of accused s status as a battered spouse importance of incorporating the experiences of women into the assessment of how the reasonable person in the circumstances of the accused would have acted (Lavallee, Mallott). Here, experience of the accusedinforms assessment of how reasonable person would have perceived the threat fr. her husband, her view of whether she had alternatives to seeking to endhis life. This view is supported by expert evidence.

31 Ryan Thus, there was an air of reality to defence of duress; sufficient factual foundation laid to give the defence an air of reality.

32 Ryan Comments Portion of ruling on battered women syndrome not especially surprising, given earlier academic and judicial commentary. Probably makes sense to place Ryan at the end of a long line of cases that have gradually infused what the CA in Ryan calls a measureof flexibility into the test for duress. So now... No immediacy requirement for codified defence, no presence requirement, no requirement that threat emanate fr. a third party, are the excluded offences next?

33 Ryan Comments Note that no constitutional argument was raised. This really reads as a return to first principles, to the principles that underlay this cluster of defences (self defence, necessity, duress): voluntariness, especially. Takes a functional, rather than a categorical, approach to the availability of the defence.

34 J.A. (2011 SCC 28) Clarifies concept of consent in sexual assault. Issue: whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious. Couple had a history of engaging in erotic asphyxiation Complainant agreed to be choked into unconsciousness during Complainant agreed to be choked into unconsciousness during sex; later complained to police, then recanted.

35 J.A. (2011 SCC 28) Majority, per McLachlin CJ (writing for six): Consent requires the individuals involved in sexual activity to be conscious throughout. In other words, need ongoing, conscious consent. Advance consent doesn t qualify. Concept of consent thus includes the capacity to withdraw consent at any time during sexual activity.

36 J.A. (2011 SCC 28)... The foregoing provisions of the Criminal Code indicate that Parliament viewed consent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter. Implications?

37 J.A. (2011 SCC 28) Dissent (per Fish J., writing for three): Emphasizes women s autonomy: The provisions of the Criminal Code regarding consent to sexual contact and the case law relied on by the Crown were intended to protect women against abuse by others. Their mission is not to protect women against themselves by limiting their freedom to determine autonomously when and with whom they will engage in the sexual relations of their choice (references omitted). Finds that the complainant s consent to the sexual activity remained operativethroughout. throughout.

38 J.A. (2011 SCC 28) What are the strong points in the majority s reasoning? The weak points?

39 That s it! Thank you to Shanna Wicks for her research assistance.