At the Court: The Homicide Common Sense Inference and Online Bullying

When it Comes to Homicide, What’s Common?

The Supreme Court of Canada will have the opportunity to revisit the charges laid of Adrian John Walle, a developmentally delayed Calgarian (cf. R v Walle, 2010 ABCA 384) on April 13. The Court will decide whether the Alberta Court of Appeal was correct in applying the “common sense” inference that a sane and sober person intends the natural and probable consequences of his actions. Walle currently faces charges of second degree murder, which carries life imprisonment with no chance of parole for 10 to 25 years.

In January 2004, Mr. Walle fatally shot Jeffrey Shuckburgh with a sawed-off .22 calibre rifle when being escorted from the bar. Though Walle had brought guns to the bar in the past, he assured the bartender that this was only a BB gun (differences amount to a significantly smaller bullet and slower feet-per-second travel time).

Walle contends that he should not face such a high sentence because, at the time of Shuckburgh’s killing, he was unable to form the requisite intent for murder. The combination of that evening’s alcohol consumption with his mental disorder rendered him unable to do so. He submits that, although he physically pulled the trigger, his brain did not actively tell him to.

The Crown argued that Walle had been treated unfairly by the bar staff and became upset. The appellant deliberately shot Shuckburgh. The Crown emphasizes that Walle was indeed sophisticated and not simple or childlike, alleging that Walle’s claim is an after the fact fiction made to limit his criminal liability.

The appeal was dismissed, as the ABCA found that the “[t]he evidence was insufficient to lend an air of reality to the suggestion that the Appellant’s mental illness or developmental disabilities should have cause the trial judge to have a reasonable doubt about the appellant’s ability to form an intent to commit murder.”

At issue now is an application of the common sense inference. Should the court consider the developmental deficits and alcohol consumption before relying on the common sense inference? At trial, the court relied on the average “sane and sober” man. In related matter on mental disabilities heard by the Supreme Court this year ( R v DAI, Frederick Moore on behalf of Jeffrey P. Moore v Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education, et al), the court will approach this analysis from a homicide perspective. Should the common sense inference account for an individual’s level and intoxication and cognitive abilities?


Will the Real A.B. Please Stand Up: Minimum Age Requirements on Facebook

The minimum age requirement for creating an account on Facebook is 13 years of age, which new users must agree to when first registering. Despite this, many “underage” users make their way onto the popular social networking site with parental consent before they reach the required age, which forces Facebook to remove roughly 20,000 accounts per day. Facebook is also clear on its policy on impersonation (all users are forbidden from creating an account for anyone without their permission), and more broadly speaking, activities that infringe the rights of others, which includes defamation.

A.B., the underage applicant (pseudonym), discovered that a profile had been created with a modified version of her name, a photograph of her, and other information that could identify her as the “real” A.B. The profile included commentary on private sexual matters, as well as discussions on her weight and other personal issues. The Supreme Court has granted leave to appeal to her litigation guardian, C.D., who brought a motion against Bragg Communications, the internet service provider for the individual who allegedly created the “fake” profile. C.D. seeks disclosure of the specific identity of the user, permission to proceed with pseudonyms, and a publication ban on the content on the user profile. The trial judge and Court of Appeal granted the disclosure and request to proceed by pseudonym, but refused the publication ban.

The Court will decide if the “inherent vulnerability of young girls subject to on-line sexualized bullying” is enough to trigger a court to issue a remedy of disclosure of the perpetrator by an internet service provider. Canadian courts have generally not been shy about vindicating orders to produce information from Facebook (cf. R. v. Lo, 2011 ONSC 6532 (CanLII)).

The hearing is scheduled for May 10, with a publication ban and sealing order on court documents and related information.

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