Law Times

PAGE 12 FOCUS December 14, 2009 • Law Times From abandonment to accident Courts offer useful clarity on key criminal defences in 2009 BY TIM SHUFELT Law Times fences, criminal lawyers need to be aware of some of the lesser- known kind, according to Alan Gold, a prominent Toronto defence counsel. Gold spoke recently at the A Criminal Lawyers' Association's fall conference — which was fo- cused on the top 10 defences of 2009 — about some of the low- er-profi le defences that nonethe- less have particular resonance for the criminal defence bar. An Alberta court, for example, heard extensive arguments on the defence of abandonment for a youth off ender implicated in the kidnapping, sexual assault, and murder of Nina Courtepatte, a 13-year-old girl found dead on an Edmonton golf course in 2005. "Th e Alberta Court of Appeal lthough much ink has been spilled over the year's most pivotal de- gave one of the clearest judgments on abandonment, and it's a de- fence that isn't considered as often as it should," said Gold, a former CLA president and Law Society of Upper Canada bencher. Th e accused, S.R.B., was ac- quitted of fi rst-degree murder after she argued she withdrew from the commission of the crime before Courtepatte was killed. She was instead convicted of the included off ence of man- slaughter, aggravated sexual as- sault, and kidnapping. Th e Crown argued the trial judge erred in fi nding an air of reality to the abandonment de- fence. In R. v. S.R.B., the court care- fully considered how the degree of involvement of an accused must be considered when weigh- ing abandonment, Gold said. Th e defence requires both an internal change of heart as well as a timely communication of that change of heart where it's reasonable and practical to do so, he added. "If you're a peripheral play- er, you probably don't need to be as emphatic in your with- drawal as when you're a central player," he said. "However, the court also noted that your communication also has to be considered in the con- text of who you're dealing with. If you're dealing with a bunch of thugs, you've got to be a little dis- crete in your withdrawal." Discretion in advertising one's withdrawal from a crime scene can be understandable and plau- sible, the court found in dismiss- ing the appeal. Th e defence of accident was also rendered much clearer this year by the Ontario Court of Ap- peal, Gold said. He explained that R. v. Ma- thisen fi nally clarifi es a concept that has been repeatedly mud- dled in prior rulings: "Accident is really two diff erent defences in our law." Th e fi rst type of accident in- volves an action that is non-voli- tional, as in fi ring a gun uninten- tionally, Gold said. "On the other hand, if I in- tend to fi re the gun at a certain target and miss and hit somebody else . . . that's a completely diff er- ent kind of an accident. Th at's an accident where the consequence is unintended." In Mathisen, the appeal court ordered a new trial after fi nding the trial judge left the jury with only the second defi nition of ac- cident. Th e accused, however, relied on both senses of the de- fence. While he admitted causing his wife's death, he denied that he in- tended to do so. Th e accused, who was 380 pounds, testifi ed that he pinned his wife to the fl oor during an al- tercation, ultimately causing her death by asphyxia. Not only did he say he Tried, Trusted and True With annotations by Edward L. Greenspan, Q.C., The Honourable Justice Marc Rosenberg, Court of Appeal for Ontario and Marie Henein Martin's Annual Criminal Code, 2010 Edition New! 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This unique and convenient online resource offers you easy access to all provisions of the Criminal Code at any specific point in time. Just enter the relevant date. Prices starting from $190 • Contact your Account Manager today for more information. For a 30-day, no-risk evaluation call: 1 800 565 6967 www.canadalawbook.ca Canada Law Book is a Division of The Cartwright Group Ltd. • Prices subject to change without notice, to applicable taxes and shipping and handling. www.lawtimesnews.com CA019 (LT 1-2x4).indd 1 12/8/09 1:58:32 PM didn't intend to put pressure on his wife but that alterna- tively, if he did mean to apply force, he didn't intend to cause her death, Gold said. "As a criminal lawyer, you have to keep these two things straight. If you're referring to a non-volitional act, the result is an acquittal. If you're referring to an unintended consequence, the result may be a lesser in- cluded off ence." In Mathisen, the court over- turned the second-degree mur- der conviction and ordered a new trial. In R. v. Emil K. Fishing, the Brit- ish Columbia Court of Appeal up- held the defence of due diligence for a fi shing company accused of illegally catching salmon. Th e court said that if all neces- sary precautions to prevent an of- fence are taken, an accused doesn't necessarily have to demonstrate or explain how the off ence was committed. "As long as the judge weighs what you did against the stan- dard of due diligence, the fact that how this happened re- mains a mystery does not de- prive you of the defence," Gold said. "And that's an important principle to bear in mind." Gold also highlighted R. v. M.M.S., which involved a B.C. woman accused of hitting and kicking her husband. Th e accused argued the prin- ciple of de minimis in her defence. Th e argument was ultimately re- jected, but the court declared that de minimis is available in domes- tic violence cases, Gold said. "Th at's a handy case to have for those of you who have the same experience I do where ev- ery single push and shove and throwing the car keys turns into a two-day trial for domestic as- sault." And in R. v. Poker, the ac- cused was charged with breaking two separate undertakings by the same act. He argued for one of the charges to be stayed on the basis of the Kienapple principle. "Th e fact that two promises were broken by the same event does not mean anything," Gold said. "Th e accused can be convicted for two breaches of undertaking." LT Clarifi cation A Law Times story on Nov. 30 about an increase in LawPRO premiums stated that part of the rise was attributable to the premium stabilization fund. In fact, the cause was a decline in investment in- come. Also, the immediate jump in costs from the harmonized sales tax should have been noted as an eight-per-cent increase. As well, while the article stated that every $1 million in new claims results in an extra $100 in premium costs, it in fact adds $50 to the LawPRO fees lawyers pay.

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