Carley Reynolds

R. v. Sullivan The case involves two different defendants, Sullivan and Chan. Their cases are unrelated but were arguing the same issue and have come before the Supreme Court together.   Section 33.1 – Extreme Intoxication When defence not available 33.1(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). Criminal fault by reason of intoxication (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. Application (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.   Facts Sullivan voluntarily overdosed on prescription medication and then attacked his mother with a knife, gravely injuring her. Sullivan was charged with several offences including assault with a weapon and aggravated assault. Chan voluntarily took shrooms laced with a drug called psilocybin. He attacked and killed his father with a knife and seriously injured his father’s partner. He was charged with manslaughter and aggravated assault. Both parties argued at their respective trials that their state of intoxication was so extreme it was

The victim impact statement should not include opinion evidence and should be confined to discussing the harm suffered by the victim. The VIS should not encourage or urge a certain sentencing outcome. Doing so runs the risk of steering the sentence imposed based on revenge. Regardless of whether the prosecution office, or the personnel administering the program designated by the Province of Ontario (under s. 722(2)(a) of the Code), is principally involved with the victim(s), there should be some pre-filing gatekeeper function exercised in terms of ensuring that the victim impact statement(s) comply with the Criminal Code requirements. In this way, victim disappointment will be avoided R. v. Gabriel, 1999 CanLII 15050 (ON SC)

Recent Changes and Guidance from the Supreme Court of Canada In recent years, the Supreme Court of Canada has made several important changes to how sexual assault cases are prosecuted in Canada. Sexual assault and the impacts of sexual violence on victims was brought to the forefront of our society in 2017 with the MeToo movement. This movement changed the way many sexual assault victims were treated by the justice system and is continuing to change the way our courts handle such offences. In 2020, 10 of the 26 criminal cases on the docket for the Supreme Court involved sexual offences. In deciding these cases, the Supreme Court sent a strong message to the justice system; the sentences for those convicted of sexual offences involving children must increase. Ranges have pushed up considerably to mid-reformatory sentences, even with a guilty plea. In recent years, the federal government has enacted legislation enhancing the maximum penalties for offenders convicted of sexual offences involving children. Offences of this nature have become among the most serious offences Canadian’s can be charged with which is now reflected in the sentencing guidelines. In the 2019 Supreme Court case R. v. Friesen, the Supreme Court opined that since the maximum penalties for those convicted of sexual offences against children have increased, so too should the sentences imposed on offenders. The Court provided a non-exhaustive list of factors that should be considered when determining the appropriate sentence for an offender. The list included whether or not the accused felt remorse for their actions, whether they had insight into their behaviour, and whether there was a high risk of recidivism. The Court also provided a sentencing range of upper single digit to lower double

In Canada, sexual offences involving children are among the most serious crimes an individual can be charged with. This, however, has not always been reflected in the sentences imposed on individuals convicted of sex offences involving children. In the past, those convicted of sexual offences including those involving children were sentenced significantly more leniently than they are today. In a 2010 case, R v. P.M., the Ontario Court of Justice sentenced a father to five years in prison after he pled guilty to sexual assault, incest, sexual interference, and possession of child pornography for repeatedly raping his young daughter and filming the attacks At the time, courts across Ontario routinely imposed three-to-five-year sentences on individuals convicted of sexually assaulting their children. To surpass a five-year prison sentence, Ontario courts often required additional aggravating factors including a pattern physical violence or threats of physical violence, or severe psychological, physical, or emotional harm. The law has also been summarized by Justice Moldaver at the Ontario Court of Appeal in R. v. D.D. [2002] at para 44, as follows: "[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher

When we think of limitation periods in Canada, we often think of the limitation periods that apply to civil lawsuits. However, there is also a limitation period that applies to criminal matters in Canada. Section 786(2) of the Criminal Code states that when dealing with summary conviction offences, the Crown may only lay charges against an accused for up to one year after the alleged incident occurs. This means that if an accused person assaults another individual on May 1, 2020 and the Crown wishes to proceed summarily, they may only lay charges against the accused until May 1, 2021. After this one-year period has elapsed the Court no longer has jurisdiction. It is important to note that this limitation period only applies to criminal cases that are summary conviction offences, or hybrid offences that are being prosecuted summarily. When an individual has committed an indictable offence or a hybrid offence that is being prosecuted as an indictable offence there is no applicable limitation period and the accused may be charged at any point after the alleged incident. In some situations, it may be beneficial for an accused to waive the limitation period, allowing the Crown to lay summary conviction charges after the one year period. This tactical decision may be preferable where the accused has allegedly committed a hybrid offence and the Crown intends to proceed by indictment if the accused does not waive the limitation period. It is generally preferable for an accused to have the Crown proceed summarily because of the enhanced maximum prison sentences that accompany indictable offences.

In situations involving sexual misconduct in the workplace, criminal and employment law can intersect, sometimes with adverse results for an employee who has been accused. In situations where an employer or institution believes that one of their employee’s may be guilty of sexual misconduct in the workplace, either due to a specific complaint or through some other source, they will launch an investigation into the matter. Ontario’s Health and Safety Act was recently updated, mandating that employers must investigate any and all complaints of sexual misconduct or harassment in the workplace. Such an investigation often involves a third-party investigator being hired by the company or institution to conduct a full impartial and independent investigation into the matter. Third-party investigators are tasked with collecting any and all relevant information in order to make various findings of fact to conclude whether misconduct has occurred. In almost all cases, part of this investigation will involve speaking to the complainant, potential witnesses and to the impugned employee. Typically, the investigator will interview all relevant parties to gain a better understanding of what occurred. In most cases, law enforcement will not be contacted until the employer has completed their investigation, except in more extreme cases. This fact can lead to complications for an employee who is later arrested and charged for the allegations. Those who are charged with a criminal offence automatically gain certain rights, such as the right to remain silent and the right against self-incrimination. However, these rights have often not yet attached during the employer’s investigation. It is common for employees in this situation to feel compelled to speak to the investigator and give a statement. An accused employee may see it as their opportunity to tell