Glen Race murdered two Halifax men in 2007. He pled guilty to both charges and then made an application to be found not criminally responsible (NCR).
Mr. Justice Kevin Coady of the Supreme Court of Nova Scotia reviewed the law and the legal requirements for a convicted person to be found not criminally responsible. He concluded that Mr. Race suffered from a mental disorder that made him incapable of knowing that his actions were wrong. In his case, three psychiatrists, both for the Crown and the defence agreed that Mr. Race qualified for a finding of NCR. An agreed statement of facts from the three doctors stated that he suffered from schizophrenia and that he believed he was a vampire slayer and a godlike entity ordered by angels to cleanse the world of demons and sin.
Justice Coady wrote: “After considering all of the evidence, I am satisfied that Mr. Race qualifies for an NCR defence…He suffered from a mental disorder on both occasions, that being schizophrenia. I am also satisfied that Mr. Race, as a result of his mental disorder, did not realize that these actions were morally wrong. I am satisfied that he really believed they were necessary to achieve his psychotic mission.”
Justice Coady made two other interesting observations. First, he reached out to the families of the murdered men and said that in the context of a NCR finding: “It is important to realize that Mr. Race, his family, and friends are victims as well. They are victims of a cruel and unforgiving illness of schizophrenia. Given that there is no cure and that Mr. Race’s case is so severe, their victimization will continue for the rest of their lives. This in no way minimizes the pain and loss the Knott and Brewster families have, and will continue to, experience. These homicides are different than most killings in that the perpetrator and the victims are victims.”
Then, Justice Coady added: “It is important to note that an NCR finding is not an acquittal. Mr. Race will be held responsible for killing Paul Knott and Trevor Brewster. There will be consequences for those actions and those consequences will continue for the rest of his life.”
R. v. Race, 2014 NSSC 6 (CanLII)
Article originally published in LawNow magazine, March/April 2014 issue. For more articles on contemporary issues with a legal perspective, see the LawNow website at https://www.lawnow.org/.
Bench Press: “Ski Buddy” Liability
Mark Kennedy of Colorado died on a heli-skiing expedition when he fell into a tree well.
His widow claimed that he had been paired with a “ski-buddy” who was contractually obliged to stay close to him, keep him in sight and assist or alert guides and other skiers if he saw that his buddy needed help. She also alleged that the buddy, Adrian Coe, owed a duty of care in tort law to Mark Kennedy. She sued Mr. Coe for loss of future earnings over her husband’s death.
Madame Justice Fisher of the British Columbia Supreme Court dismissed the action. She found that just because the two men had been paired to ski together there was no basis to find that there was a contract between them. Similarly, she ruled that Mr. Coe did not owe a duty of care to Mr. Kennedy, and that even if there were, Mr. Coe would have met the standard.
She summarized: “It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe.
Kennedy v. Coe, 2014 BCSC 120 (CanLII)
Article originally published in LawNow magazine, March/April 2014 issue. For more articles on contemporary issues with a legal perspective, see the LawNow website at https://www.lawnow.org/.
March/April 2014 Issue of LawNow: Language and the Law
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Bench Press: First Case Under the Justice for Victims of Terrorism Act
Dr. Sherri Wise of Toronto was severely injured in a Hamas terrorist bomb attack in Israel in 1997. She has made a claim against Iran for compensation for her injuries under the Justice for Victims of Terrorism Act (JVTA) which was passed by the Canadian parliament in 2012.
However, an American family (Bennett) has already obtained a court judgment for damages for the death of their daughter, in the amount of $13 million, and they have applied under the JVTA to have the judgment recognized in Canada. Their judgment exceeds the amount of Iran’s assets in Canada, so if the American judgment is recognized here, it will leave Dr. Wise with no assets to claim against.
In October 2013 the Ontario Court of Appeal granted intervenor status to Dr. Wise so that she can contest the application to have the U.S. judgment filed in Canada. The Appeal Court ruled that she met the test for intervenor status in that she has a contingent interest in the subject matter of the proceeding and that she may be adversely affected by a judgment recognizing the American judgment. The Bennetts want to file their judgment here because Iran has no assets in the U.S. Dr. Wise argues that their judgment is barred by a lapsed limitation period. It will be interesting to see how courts deal with these competing claims in the future.
[Bennett Estate v. Iran (Islamic Republic of), 2013 ONCA 623 (CanLII)]
Article originally published in LawNow magazine, January/February 2014 issue. For more articles on contemporary issues with a legal perspective, see the LawNow website at https://www.lawnow.org/.
Drunk Driving and the Constitution
This blog post is an excerpt from Bench Press in the March/April 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
Justice Jon Sigurdson of the British Columbia Supreme Court has ruled that parts of B.C.’s new drunk driving law are unconstitutional.
Changes to the province’s Motor Vehicle Act introduced automatic roadside suspensions for drivers with a blood-alcohol content of .05 or higher. Vehicles can be impounded for up to 30 days and penalties of up to $4000 can be assessed. Justice Sigurdson ruled that these changes are a justifiable infringement on Charter rights. However, he took issue with drivers who “fail” a breathalyzer test by showing a blood-alcohol level of .08 or higher. For these drivers, he wrote that the law “authorizes a search by a screening device on the basis of reasonable suspicion and impose lengthy prohibitions and significant costs and penalties on motorists, without providing motorists with any meaningful basis to challenge the validity of the search results.” He ruled that this violates the Charter protection against unreasonable search and seizure, and he concluded that in these instances, the province needs to provide an appeal process.
This decision has significance beyond the B.C. border. Alberta has enacted very similar legislation and intends to proceed with its implementation despite the B.C. court ruling.
Sivia v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1639 (CanLII)
Oops, a Slip of the Lip!
This blog post is an excerpt from Bench Press in the March/April 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
An Ontario man will get a “do-over” of his criminal trial after the trial judge made a small but crucial error of speech.
Madame Justice Faye McWatt of the Ontario Superior Court of Justice was instructing a jury about the importance of the presumption of innocence just before they left the courtroom to consider their verdict. She said “It is only defeated if, and when, the Crown counsel has satisfied you beyond a reasonable doubt that Mr. Guilty – I’m sorry, Mr. Wilson – is guilty of the crime charged.”
Mr. Wilson’s counsel was not amused when the jury found her client guilty. She filed an appeal, and noted “The trial judge erred in failing to order a mistrial or provide a curative instruction after mistakenly referring to the appellant as Mr. Guilty.”
The appeal will be held later this year.
Hells Angel Can't Stay
This blog post is an excerpt from Bench Press in the January/February 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
A Federal Court of Canada judge recently ruled that Mark Stables, who has been a permanent resident of Canada since he came from Scotland as a seven-year-old child, and who has no criminal record, cannot stay in Canada.
Justice de Montigny ruled that the government has the right to expel him because he is a high-ranking member of the Hells Angels.
Mr. Stables argued that the Hells Angels is not a criminal organization, but the Judge stated that the evidence is overwhelming that the Hells Angels is “first and foremost” an organization dealing in drug trafficking, extortion, theft and murder.
He wrote: “This is not a case where the applicant did not know the nature of the organization until it was too late – either he did not care or chose to be willfully blind to its activities. Clearly, the framers of the Charter [of Rights] could not have intended that the applicant’s membership in the Hells Angels could be protected through his freedom of association and expression, despite the overwhelming criminal history of the organization.” The Immigration and Refugee Protection Act allows for a person to be barred from Canada for “organized criminality”.
Stables v. Canada (Citizenship and Immigration) 2011 FC 1319 (CanLII).
Disinherited daughters
This blog post is an excerpt from Bench Press in the January/February 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
Four daughters who received nothing from their late father’s estate asked the British Columbia Supreme Court to vary his will.
William Werbenuk left his substantial estate to his only son, making no provision for his daughters.
The Judge stated that what was at issue was whether based on contemporary moral standards, adequate provision for proper maintenance and support was objectively considered by the father towards his daughters.
Justice Wong accepted evidence by the daughters that their father ruled the family home, and his wife and daughters by terror.
The son, on the other hand was “favoured and indulged.”
Justice Wong noted: “It is a testament to the strength of character and resilience of the plaintiffs that they rose above their upbringing and manifestly cared for their father.” He ruled that modern contemporary standards reject the father’s declared intention to disinherit his daughters, and that they had a valid moral claim to share in the family wealth.
He wrote: “The provisions of William Werbenuk’s will were not those of a judicious testator acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards. The Judge divided the estate between the five siblings.
Werbenuk v. Werbenuk Estate, 2010 BCSC 1678
The Definition of a Mother
This blog post is an excerpt from Bench Press in the January/February 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
A Court of King’s Bench justice in Saskatchewan recently ruled that a woman who gave birth to a baby girl in 2009 is not the child’s mother.
The child was conceived through sperm from one partner in a same-sex marriage and an ovum from an anonymous donor. “Mary” carried the baby to term. The same sex couple and Mary asked the province’s Registrar of Vital Statistics to remove the birth mother’s name from the child’s birth certificate.
Justice Jacelyn Ann Ryan-Froslie agreed.
She wrote: “It is clear from the definition of ‘mother’ contained in the Vital Statistics Act 2009, that Mary, the gestational carrier, is Sarah’s mother for the purposes of that act as she is the woman from whom Sarah was delivered. Naming her as Sarah’s mother on the registration of live birth raises a presumption that she is also Sarah’s biological mother. In this case, I am satisfied that on a balance of probabilities, that Mary, the gestational carrier, is not Sarah’s biological mother. I am also satisfied that neither (John nor Bill) nor Mary ever intended that Mary would assume any parental rights or obligations with respect to Sarah. As such, a declaration that Mary is not Sarah’s mother is warranted.”
You must try to work it out!
The Province of Alberta began a new decade with new Rules of Court. In the works for 10 years, the new Rules made their debut in 2010.
One of the most significant changes in the new Rules is the requirement for persons engaged in a civil (as opposed to criminal) legal action in the Court of King’s Bench to make an effort to settle their disagreement. This is mandatory: litigants must try to resolve their cases using certain court-approved dispute resolution processes before they will be allowed to obtain a trial date. And, it is up to the parties to begin this process. Only in certain rare circumstances, and by order of a judge, will this requirement be waived.
There are several options that litigants may choose. They may:
- Hire a private mediator;
- Request a mediation by a Court of King’s Bench judge; or
- Use a mediator from the Roster Mediation Service, maintained by the Department of Justice.
In addition, there are programs that are available specifically for some family law disputes. Family Mediation Services can assist in resolving issues such as child and/or spousal support, communication issues, and minor issues about the division of property. If a participant’s gross annual income is below $40,000, and he or she has children under the age of 18, this service may be free of charge. In Calgary, the Dispute Resolution Officer Project (DRO) is mandatory for parties asking for interim child support or to change an existing child support order. In Edmonton, the Child Support Resolution Project (CSR) is mandatory for persons who are representing themselves in court and are asking for interim child support under the Divorce Act, or to change an existing child support order.
The Court of King’s Bench of Alberta is working on other options for court-assisted dispute resolution, so other programs may be available in the near future. But for now, parties in a civil law case that are represented by a lawyer should discuss the pros and cons of these different options with their counsel and decide about the best way to proceed.
Persons who are representing themselves might like to obtain a copy of a brochure produced by the Legal Resource Centre entitled: Dispute Resolution: You Must Try to Work It Out!