R v Rodgerson: How to Instruct a Jury on Post-Offence Conduct

The Facts

In 2008, Jason Rodgerson met Amber Young at a bar in Oshawa. According to Rodgerson, after consuming alcohol and ecstasy together, he and Young engaged in consensual sex at his home. Rodgerson then lost interest in Young and wanted to return to the bar. Tensions escalated when Young asked to be compensated for the ecstasy pill. They engaged in a verbal altercation, which led to Young becoming violent and attacking Rodgerson with a knife. At the end of the struggle, Young was dead. Rodgerson was the only witness to Young’s death.

Rodgerson made extensive efforts to conceal Young’s body. He dragged her body to the backyard, poured bleach on her and buried her in a shallow grave. He then removed the bloodstained mattress, cut up the carpet, and put her belongings in the garbage. He also used bleach to clean up the blood from the scene of the crime. When police arrived, Rodgerson attempted to flee and when caught made several false statements deflecting blame from himself. The issue before the Supreme Court of Canada (“SCC”) centred around the instructions given to the jury on how the evidence of Rodgerson’s post-offence conduct could be used to establish intent for murder.

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[filed: Criminal Law Criminal Procedure]

A Web of Instinct: Kahkewistahaw First Nation v Taypotat

Kahkewistahaw First Nation v Taypotat2015 SCC 30, is the Supreme Court of Canada’s (“SCC”) most recent decision on equality. Coming in at a brief 35 paragraphs, this decision does not alter the law of section 15 of the Charter in any substantial way. Using the test laid out in Quebec v A, [2013] 1 SCR 61, Justice Abella holds that the education requirements of the Kahkewistahaw Election Code [“Code”] do not infringe section 15 of the Charter. However, the case raises some interesting questions about the nature of evidence in section 15 cases, and the role of the courts in dealing with this evidence.

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[filed: Aboriginal Law Charter Constitutional Law Equality]

The BC Government vs. Freedom of Association in British Columbia Teachers’ Federation v British Columbia

Much has changed this year with the Supreme Court of Canada’s (“SCC”) new “labour trilogy” of Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 [Mounted Police], Meredith v Canada (Attorney General), 2015 SCC 2, and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 [Saskatchewan]. These cases help define the scope of the SCC’s changing position on freedom of association—yet, at the same time, leave much to be answered.

The emergence of the right to strike and the “purposive and generous approach” to interpreting the right to freedom of association represents a shift in the SCC’s position away from the restrictive approach to section 2(d) expressed in the previous “labour trilogy” (Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313; Retail, Wholesale and Department Store Union v Saskatchewan, [1987] 1 SCR 460; and Public Service Alliance of Canada v Canada, [1987] 1 SCR 424.

It is this context—where the SCC has shown a willingness to expand the scope of freedom of association—that will influence whether it will grant leave to appeal from the recent BC Court of Appeal decision in British Columbia Teachers’ Federation v British Columbia, 2015 BCCA 184 [BC Teachers].

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[filed: Charter Constitutional Law]

If I were now a Quebec broker… Implications of Societe en commandite Place Mullins v Services immobiliers Diane Bisson Inc.

It is not every Supreme Court of Canada (“SCC”) case that deals with situations which thousands of Canadians encounter daily, and it is not every decision that has the potential to have immediate implications. Societe en commandite Place Mullins v Services immobiliers Diane Bisson Inc, [2015] SCC 36 [Place Mullins], however, is just such a decision.

Quebec brokers – take note. To start, bear with me as I recount the stirring events that led to this important decision. Read the rest of this entry »

[filed: Contracts]

R v Kokopenace: Missed Opportunity for Action

Overrepresented in Jails, Underrepresented in Juries

Since the 1970s, Grassy Narrows First Nation reserve has become synonymous with mercury poisoning and the associated health effects. By any measurement, the residents of the reserve have had a rough deal handed to them. In 2007, Grassy Narrows was also the site of a murder, the details of which are not particularly noteworthy. A trial took place in Kenora in 2008 and Clifford Kokopenace, a resident of Grassy Narrows, was convicted of manslaughter. During the trial, it emerged that, not only were there no on-reserve Aboriginal people on the jury that convicted Mr. Kokopenance, but only 4.1% of the jurors on the jury roll for the district were of Aboriginal descent.

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[filed: Aboriginal Law Constitutional Law Criminal Law]

Strategizing in the Shadow of Precedent: Another look at Henry v British Columbia

An earlier post provided a summary of Henry v British Columbia, 2015 SCC 24 [Henry]. Unanimously overturning a decision of the British Columbia Court of Appeal (“BCCA”), the Supreme Court of Canada (“SCC”), held that the plaintiff, who was wrongfully convicted and consequently spent twenty seven years in prison for crimes he did not commit, could sue the government for a violation of his Charter rights. The legal basis for such a claim is found in s. 24(1) of the Charter, which states that “[a]nyone whose rights or freedoms…have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

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[filed: Charter Criminal Law Remedies Torts]

Clearing the fog? St. Cloud and the Reinterpretation of Bail Procedure

The death of Bridgett Takyi, a 27-year-old mother, represents the worst nightmare of any Justice of the Peace. In Ontario, justices make critical decisions, such as whether an accused should be released from jail pending trial. While out on bail for charges including assault and uttering death threats against Ms. Takyi, Emmanuel Owusu-Ansah, Ms. Takyi’s ex-boyfriend, stabbed her 25 times and set her remains on fire. Owusu-Ansah was convicted of second-degree murder in June 2015, but questions still remain concerning the decision to release him on bail in the first place.

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[filed: Criminal Law]

R v Tatton: The Confounding Distinction between Specific and General Intent

The Supreme Court of Canada’s (“SCC”) recent decision in R v Tatton, 2015 SCC 33 [Tatton] takes place in the context of a larger and more protracted debate about the defence of intoxication. In what cases, if any, can a self-induced state of intoxication negate intent, and provide an accused with a full acquittal?

Courts have been grappling with this question since the Exchequer Court’s decision in Reniger v Fogassa, 75 ER 1 (Ex) nearly 500 years ago. In Tatton, the SCC took the opportunity to review and clarify its earlier decision in R v Daviault, [1994] 3 SCR 63 [Daviault], which outlined the approach to classifying crimes as either “general” or “specific” intent. However, this decision exposes a weak-point in the criminal law, and has more fundamental implications on the application of the defence of intoxication, generally.

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[filed: Criminal Code Criminal Law Uncategorized]

SCC Denies Charter Protection to Tax Adviser Hit with a Huge Monetary Penalty

The Supreme Court of Canada’s (“SCC”) decision in Guindon v Canada, 2015 SCC 41 [Guindon] has been eagerly awaited by lawyers in the area of taxation. It deals with a relatively new provision in the Income Tax Act, RSC 1985, c 1 (5th Supp), s. 163.2, that allows third parties, such as tax advisers or promoters of tax deduction schemes, to be penalized for helping a taxpayer make “a false statement.” Bogus charitable donation schemes, in particular, have been a growing problem for the tax authorities.

Julie Guindon is a lawyer who was also the head of a small charity in the Ottawa area. She signed charitable donation receipts totalling nearly $4 million (many of them to her friends and relatives) in a scheme that the Canada Revenue Agency concluded was false. Penalties totalling $565,000 were imposed on her personally. She appealed to the Tax Court where she successfully argued that a penalty this large was a criminal penalty. That would make it invalid, as she had not been accorded the procedural safeguards that are constitutionally required for a person charged with a criminal offence.

The SCC unanimously rejected Guindon’s appeal, affirming the earlier reversal of the Tax Court’s decision by the Federal Court of Appeal (“FCA”) in Canada v Guindon, 2013 FCA 153 [Guindon, FCA]. The SCC has provided clarity on the validity of the specific penalties found in s. 163.2. However, the decision is somewhat disappointing as the SCC did not use the opportunity to provide any new insights into the complex issue of how to distinguish between civil and criminal penalties.

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[filed: Charter Tax]

R v Barabash: Resolving the Debate Surrounding the Private Use Exception

On May 22, 2015, the Supreme Court of Canada (“SCC”) in R v Barabash, 2015 SCC 29 [Barabash], unanimously concluded that a new trial was necessary since both the trial judge and majority at the Alberta Court of Appeal (“ABCA”) erred in law in their analyses of the role of exploitation in the “private use exception” for the private recordings of sexual activities involving a young person.

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[filed: Criminal Law]