Thursday, February 11, 2016

Intent in Murder

Murder is the intentional killing of another human being.

The key is intention – an action that results in the death of another person without intent is homicide and can be manslaughter (a very serious crime) but it is not murder.

The Criminal Code provides:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

Notice it is possible to commit murder without caring one way or the other if someone dies but you have to knowingly cause bodily harm that you know is likely to lead to death.

Now murder comes in two forms – first and second degree. The both carry a mandatory sentence of life imprisonment but parol is easier and more rapidly available for second degree murder. That said in both cases there must be the intention to kill.

You cannot be convicted of murder in Canada unless you have the specific intent for murder.

Sexual assault does not require physical contact or even verbal threatening

R. v. Edgar, 2016 ONCA 120:

[10]       To commit a sexual assault, it was not necessary for the appellant to touch or even verbally threaten the complainant. A person's act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person's sexual integrity.  Coupled with a present ability to carry out the threat, this can amount to a sexual assault. See Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(b) and (2); R. v. Cadden (1989), 48 C.C.C. (3d) 122 (B.C.C.A.); and R. v. Johnson, 2006 CanLII 37519 (Ont. S.C.).  

Tuesday, February 9, 2016

Sometimes I feel this way too!!!

Constructive Dismissal

Cousins. v QEC, 2016 NUCJ 1:
[50] The onus is on the plaintiff to prove, on a balance of probabilities, that QEC’s demotion of the plaintiff constituted his constructive dismissal.
[51] The law pertaining to the constructive dismissal of an employee by an employer was outlined by the Supreme Court of Canada in Farber at para 33:
Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment – a change that violates the contract’s terms -- the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice.
[52] This constructive dismissal principle was recently applied in Potter v New Brunswick (Legal Aid Services Commission), 2015 SCC 10 (CanLII), [2015] 1 SCR 500 [Potter].
[53] The Court, in its legal analysis, must apply a two-part test:
1. Has a breach of contract been proven?
2. If the answer to the first question is yes, the Court must then determine whether that breach substantially altered an essential term or terms (Farber at paras 34, 37).
[54] The analysis is an objective one: would a reasonable person, at the time the breach occurred and in the same circumstances as the employee, have felt that an essential term of the employment contract had been substantially changed? (Farber at paras 39, 60).

Monday, February 8, 2016


Immigration Consequences of Criminal Convictions

I recently went to a fund raising lunch at a Church. The lunch raised funds to help resettle in Canada refugees fleeing from civil unrest in Syria. This event got me thinking of the concerns that are sometimes heard about "foreign criminals".
Some who raise these concerns are asking in good faith, some, perhaps are motivated by racism, but regardless Canada has a very strong system ensuring that new arrivals in Canada who do commit criminal offences will not be allowed to stay. More to the point, perhaps, is the statistical fact that overall immigrants are less likely to commit criminal offences that other Canadians. That said, a "foreign criminal" in Canada will not be here long.
There are three categories of people in Canada:
Canadian Citizens;
Permanent Residents; and
Foreign Nationals.
Each is dealt with differently in the event of a criminal conviction.
Generally, Canadian citizens cannot be deported due to a criminal conviction. Some dual citizens may be subject to losing their citizenship in very rare circumstances but this is most unlikely to be seen as a practical matter. Canadian citizens can be extradited for crimes committed in certain foreign countries – so if you murder someone in England you may be sent there for trial – but that does not affect citizenship rights or your right to return to Canada after serving any sentence abroad.
Permanent residents are people who are not citizens of Canada but have been granted status to enter and remain in Canada permanently. They may apply for Canadian citizenship. A permanent resident may be removed from Canada if convicted of an offence for which the possible penalty is ten years or more or if sentenced to a term of incarceration of greater than six months. Broadly put permanent residents can be subject to removal only for serious crimes if:
- The permanent resident is sentenced to six months or more in prison;
- The permanent resident is sentenced for a crime for which the maximum sentence could be ten years or more, even if the permanent resident gets a shorter sentence; and
- The permanent resident is found to be a member of organized crime, such as gang activity or smuggling.
There is, in general, no appeal from a removal order. That said, if the offence is one for which the possible penalty is greater than ten years but the actual term imposed is less than six month the permanent resident can seek relief from the Immigration Appeal Board on the basis of humanitarian grounds or some legal or factual error. Otherwise there is no appeal.
Foreign nationals are temporary residents of Canada – visitors, students or people on a work visa – as well as convention refugees and refugee claimants. Basically, a foreign national can be deported on conviction for most criminal offences. Even a relatively minor offence can render a foreign national subject to removal from Canada.
As can be seen there is something of a ladder in terms of being removed from Canada for committing criminal offences. Visitors to Canada, even if they have a work visa or are here as students, are subject to being removed for virtually any criminal offence. Permanent residents have considerably more protection but are still subject to removal for all but minor offences. Canadian citizens are given almost total protection and cannot be removed except in quite extraordinary circumstances.