Law Times

Law Times • may 31, 2010 FOCUS PAGE 11 SCC rejects defence of property argument But minority emphasizes need for judges to give full reasons for decisions BY ROBERT TODD Law Times A recent Supreme Court of Canada decision highlights the need for judges to provide ample reasons for refusing certain arguments levelled by accused criminals, experts say. The case, R. v. Szczerbani- wicz, involves Gary Szczer- baniwicz, who was a lieuten- ant-colonel in the Canadian military posted to NATO in Brussels. During an argument in August 2006, Szczerbani- wicz's wife — from whom he was separating after 30 years of marriage — threw to the floor a framed diploma he had earned for completing his master's de- gree in leadership and training from Royal Roads University. Szczerbaniwicz responded by pushing his wife, who fell onto a staircase and suffered bruises and a broken finger. Authori- ties later charged him with as- sault causing bodily harm in a case tried before a standing court martial. Szczerbaniwicz admitted at trial to intentionally push- ing his wife without consent. However, he pointed to s. 39(1) of the Criminal Code, which states: "Every one who is in peaceable possession of per- sonal property under a claim of right, and every one acting un- der his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is nec- essary." He argued his actions were warranted based on that principle. Nonetheless, the military judge ruled Szczerbaniwicz had used excessive force and rejected the use of s. 39(1) as justification for the act. He was later convicted of the less seri- ous offence of assault, a ruling backed by a majority of the Court Martial Appeal Court. A 5-2 majority of the Supreme Court dismissed Szczerbani- wicz's appeal, which was filed as of right. In its decision written by Justice Rosalie Abella, the ma- jority found the military judge had correctly fulfilled his ob- ligation to determine whether Szczerbaniwicz "used 'no more force than was necessary to defend his possession' in all the circumstances based on both subjective and objective criteria. . . ." Wrote Abella: "This is a case about a husband who lost his temper in an argument and pushed his wife with such force that she landed on the staircase and sustained extensive bruises. He used force because his wife threw to the floor a framed and easily replaced piece of paper of sentimental value. The trial judge found the use of this force in these circumstances to Untitled-1 1 be disproportionate. This con- clusion is eminently justified based on the legal and factual contexts." Yet the minority reasons de- livered by Justice Ian Binnie on behalf of Justice Morris Fish suggest the military judge's reasons were insufficient. Bin- nie said the judge had failed to meet the standards set out in 2008's Supreme Court ruling in R. v. R.E.M., which deter- mined that reasons for judg- ment "must be sufficient to ful- fil their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review." Binnie said the military judge's reasons fail to offer "the 'logical connection' between the 'what' and the 'why.'" He later wrote: "We do not know, and the appellant cannot know, why the military judge found the intervention disproportionate to what was reasonably required in all cir- cumstances." Based on that, the minority judges said they would allow the appeal and order a new trial. Criminal Lawyers' Associa- tion past president Frank Add- ario of Sack Goldblatt Mitchell LLP in Toronto said the case demonstrates the need for full reasons in court decisions. "I know that some trial judg- es are resistant to having every word in their judgments parsed like the Code of Hammurabi," Addario said in an e-mail to Law Times. "But, it's legitimate for losing litigants to expect a clear explanation for why they lost and why their arguments failed. So the debate between the majority and minority is healthy. It shows that the easiest Writing for the majority, Justice Rosalie Abella said the military court's finding that the use of force was disproportionate was 'eminently justified.' way to avoid review for insuf- ficiency is to address all of the important issues that arise in a case. That should lead to more disciplined decision-making." Meanwhile, one criminal law expert believes the case also calls attention to the way Canada's top court seems to be approach- ing leaves as of right. Queen's University professor Don Stuart believes the court treated the case as "relatively trivial." "It seems disappointing to me that they didn't go ahead and talk more fully about the defence of property," says Stu- art. "And certainly just to say, as the majority does, that 'Oh, this is just a case where the guy lost his temper about his wife, and we shouldn't have any sympathy for him' seems to me not what the Supreme Court should be doing. They should be developing principles for other cases, where people rely on the defence of property, and they didn't." LT Better Results Faster THE ONE AND ONLY Westlaw® Canada CriminalSource® Only CriminalSource® gives you all the case law and legislation you need plus exclusive one-of-a-kind practice-specific resources that help you provide effective solutions for your clients. CriminalSource EXCLUSIVES Quantums of Sentencing Digests Nadin-Davis Canadian Sentencing Digests contain virtually all sentencing cases back to 1970 – searchable by statute section, issue and offence. Annotated Legislation When you search for legislation, you also get links to annotations classified by issue, with links to cases and commentary − everything you need to understand your case and build a strategy in minutes. Dangerous Offenders Database Developed by the Office of the Attorney General on Ontario, this database includes thousands of decisions related to dangerous and long-term offenders. Criminal Law Digests More than 550,000 criminal law digests organized into key subject areas give you an overview of your issue and case law in minutes. For more information www.westlawcanada.com Call 1-866-609-5811 www.lawtimesnews.com 5/26/10 9:01:15 AM

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