Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Appeal; the condition is a mental dis- order under the law. But while the man behind the finding in fact has it, he isn't off the hook yet. Earlier this year the appeal court up- S leep sex, or "sexsomnia," is a legal defence in this province. So says the Ontario Court of OctOber 27, 2008 • Law times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905- 713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Sexsomnia: a mental disorder should lead to an outright acquittal or an NCR-MD verdict. But for the record, the court did say, held Jan Luedecke's acquittal of sexual assault. He claimed he was in a state of sexsomnia when he mounted a woman after he fell asleep at a party. But, at the time, the court reserved its decision on whether it would issue an outright ac- quittal or find it was as a result of a men- tal disorder. Technically, it did neither. In an unusual move, the court ordered a new trial but with a mandate limited to figuring out whether his automatism "If the evidence is substantially the same as it was at the first trial, an NCR-MD verdict is the only reasonable verdict available from the state of the current law. I would expect the trial judge to reach that verdict, assuming the evi- dence is substantially the same. The evi- dence may, of course, be different." Such a finding signals an accused cannot be held responsible for what would other- wise be his criminal act, said the court, add- ing a finding of NCR-MD would result in a mental health review board decision whether he should be detained in hospital or get an absolute discharge. The appeal court noted there are concerns over Luedecke's potential dan- gerousness and public safety. At his trial he testified he had pre- viously had sex with girlfriends while asleep, and the appeal court pointed out it can't be unexpected that Luedecke could find himself asleep in the vicin- ity of people with whom he has no rela- tionship, like in an airport, train station waiting room, or at a cottage. "There is also nothing in the evidence to suggest that the respondent could not move from room to room while in a parasomniac state and engage in non- consensual sexual activity with someone who happens to be in [the] same build- ing but in a different room," said the court, adding it follows that when in a parasomniac state, he was "incapable of distinguishing between a consensual or non-consensual situation. "The concept of a mental disorder in the criminal law is used to describe those accused who have committed crimi- nal acts but because of some abnormal mental state are unable to conform their behaviour to the dictates of the criminal law," wrote the court. While choosing a circuitous route, the court has in the end taken the dif- ficult issue in a direction that ensures if you do the crime, even in a state of sex- somnia, you should still be dealt with — but in a balanced way that optimis- tically addresses the root cause, while protecting the rest of us. — Gretchen Drummie October 2009 was unconstitu- tional or at the least illegal. Several pundits — but, notably, none of the leaders of the major political parties — suggested that the Gov- ernor General should have refused Prime Minister Stephen Harper's request for an early dissolution of Parliament. This suggestion is not only ill-begotten but constitution- ally dangerous as well. If the prime minister played loose with the idea of a fixed elec- tion date, it was only because the statute's text allowed him to. More- over, the Governor General acted wholly appropriately in acceding to Harper's request. Had she refused it, she would likely have triggered a constitutional crisis. I t was suggested by some that holding the federal election before the scheduled date of The suggestion that Harper violated the statute by seeking a dissolution prior to October 2009 misreads the statute which explicitly preserves the powers of the Governor General, "including the power to dissolve parliament at the Governor General's discre- tion." The fixed election date of the third Monday in October every four years, starting in Octo- ber 2009, is made subject to the Our unconstitutional election? Second quoted provision. Almost exactly the same language was used in Ontario and similar language in British Columbia when those prov- inces enacted fixed election date legislation. The difference being that majority govern- ments in those two provinces allowed the electoral clock to run out, leading to general elections at the fixed election dates in B.C. (May 2005) and Ontario (Octo- ber 2007). As is the case with the federal legislation, the premiers in those provinces could have sought an earlier dissolution, at their po- litical but not legal peril. The best constitutional reading of the federal fixed election date is that it puts a four-year outer limit on the length of any parliament, down from the five-year limit set in both the Constitution Act, 1867 and the Charter. Since the Second World War, majority governments in Canada have rarely strayed much beyond four years before calling an elec- tion. Those who did were pun- ished at the polls: Pierre Trudeau in 1979 (waiting almost four years and eight months); John Turner in 1984 (four years and three months); Kim Campbell in 1993 Opinion By Adam Dodek (four years and nine months). The fixed election date legislation sets out in statute what politi- cians have learned the hard way: four years is about the outer limit for Canadians' tolerance for any government in Ottawa. Should the Governor General have said no to Stephen Harper? This argument has to be based on the contention that the fixed date legislation either created or over- ruled applicable constitutional conventions regarding the Gov- ernor General's exercise of dis- cretion in responding to a prime minister's request for a dissolution of Parliament. It cannot be based on the argument that the fixed election date legislation impacts the governor general's constitu- tional powers because that would require a formal amendment to the Constitution, and because of the clear language of the statute that the governor general's pow- ers are preserved. Conventions, www.lawtimesnews.com ity government after "a reason- able length of time" has elapsed since the last election. Peter Russell has done a masterful job of explaining this in his new well-timed book Two Cheers for Minority Government. What constitutes "a reasonable time" is subject to debate; it is likely between six and 12 months. In any event, at over two and a half years, Stephen Harper had well surpassed it. The essence of a constitutional on the other hand, purport to circumscribe how constitu- tional power is exercised. As a general matter, the accepted constitutional con- vention is that the governor general accepts the prime minister's request for an early dissolution of a minor- convention is the conscious fidel- ity to precedent for a purpose. Ex- isting constitutional conventions cannot be brushed aside so easily by a statute structured on the idea of a four-year fixed date but with a carefully drafted escape clause. Had Gov. Gen. Michaëlle Jean 1926 pale in comparison. Unlike Arthur Meighen in 1926, there is no indication that any other leader wanted to attempt to, let alone would have been success- ful, in forming a government with the confidence of the House. In the absence of a prime minister in waiting, the Governor General had no choice but to accede to her prime minister's request. What of the fixed date legisla- tion creating a new constitutional convention? The short answer to that is not yet but perhaps one day. Convention is about his- torical practice. In the absence of either, no convention can be cre- ated. If after three or four fixed election cycles, a prime minister with a majority government or a working minority government would attempt to seek an early dissolution while still maintain- ing the confidence of the House, a lieutenant-governor or a governor general might well have a basis to refuse a prime minister's request. And that is where things would start to get really interesting. LT refused the prime minister, she would have surely created a con- stitutional and political crisis that would have made King-Byng of Adam Dodek teaches at the Uni- versity of Ottawa's Faculty of Law. He can be reached at adodek@ uOttawa.ca.

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