Wednesday, March 02, 2011

This Week At The Ontario Court of Appeal: 11-03-02

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

R. v. Nedelcu. This appeal in a criminal matter will be of particular interest to criminal and civil litigation counsel alike. The convicted defendant was charged with dangerous driving causing bodily harm. At trial, the Crown cross-examined Mr. Nedelcu on evidence given by him on an examination for discovery in a civil action arising from the same collision.

On appeal, Mr. Nedelcu's alleged that his section 13 rights under the Charter of Rights and Freedoms were violated when testimony used in another proceeding was used to incriminate him at trial.

The trial judge allowed the use of this evidence, ruling that s.13 protection applied only where testimony was compelled from the witness.

The trial judge held that Mr. Nedulcu could have been be said to have been statutorily compelled to testify at Discovery. The trial judge emphasized that discovery's purpose is for "information gathering," contrasting it with criminal trials which he described as "public" and "justice-oriented."

The trial judge also held that at the examination for discovery, Mr. Nedelcu's purpose in delivering evidence was not to assist the Crown to ensure a fair outcome, but instead to give evidence which would help his own outcome in the civil action, and that therefore this could not meet the standard of quid pro quo set out in R. v. Henry, where the Supreme Court of Canada stated that the constitutional basis for s.13 rights was that in order to encourage full and frank testimony, use of that testimony in other matters must be disallowed so as to not discourage witnesses from testifying honestly.

The Court of Appeal disagreed. The Court noted that Mr. Nedelcu was in fact compelled to attend upon examination for discovery, as a stay of civil proceedings in his case would only be granted for exceptional reasons. The Court also disagreed with the trial judge's reasoning that Mr. Nedelcu was incentivized to produce evidence at the civil action on the basis that he was not the plaintiff in that action and was compelled to present evidence at examination strictly for the benefit of the plaintiffs. The Court held that the distinction drawn by the trial judge between criminal and non-criminal interrogations of this sort was therefore not relevant. The appellate court therefore ordered a new trial. Read-the-whole-case rating: 3.

R. v. Craig. An appeal from a first-degree murder conviction on both appeal and sentence. The convict appellant was a wife who murdered her husband when he was in a drunken stupor by stabbing him to death with a butcher knife. At trial, Ms. Craig introduced extensive evidence demonstrating that her husband was psychologically abusive of both him and their child, physically abusive of their child, that he isolated her and her child from the rest of the community, and that she was forced to support the family despite suffering emotional problems as a result of her husband's behaviour.

At trial, Ms. Craig attempted to raise self-defence as justification for her actions, but was not allowed to introduce evidence of her husband's prior abuse of his first wife or his violent actions towards others, as the appellant had not been aware of these facts when she killed her husband. She argued on appeal that this evidence had been wrongly excluded, but the Court held that the evidence would have introduced hearsay evidence and further would not have been relevant to her self-defence claim. This ground of appeal was rejected.

However, the Court did allow Ms. Craig's appeal on her sentence. At trial, she received eight years' imprisonment for her crime, as the trial judge felt that the primarily non-physical nature of her abuse could not reasonably be considered equivalent to battered woman syndrome. The Court of Appeal strongly disagreed:
With respect to the trial judge, the emphasis should have been on the effect the abuse had on the appellant rather than the form the abuse took. As explained by Ratushny J. in Bennett, at para. 20, a passage quoted by the trial judge, abuse, whatever its form, can have different effects on the subject of the abuse. Where that abuse leaves the abused individual feeling utterly trapped in the relationship and emotionally and mentally unable to cope with or escape from the relationship, the moral culpability of the individual who reacts by killing the abuser is substantially reduced. That reduced culpability must be reflected in the sentence imposed. It may be easier to reach the conclusion that the abuse has had a serious impact on the person abused where it includes a significant physical component. However, as the evidence in this case makes clear, psychological, verbal and emotional abuse combined with intimidation and the realistic fear of physical violence can have an overwhelming impact on the abused individual.
The Court noted that three to eight years was widely considered the appropriate sentence for a manslaughter committed in the context of spousal abuse, and decided that since Ms. Craig had been imprisoned for about three years by this point (two and a half years' imprisonment plus five months' pretrial custody), that her time served suitably met the needs of justice and varied her sentence accordingly. Read-the-whole-case rating: 4.

- Christopher Bird, Toronto
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