New & Notable: Defining dangerous driving

Randy Roy was headed home from work at the sawmill. He was giving his colleague Mark Harrington a ride home as well. In order to get home Roy decided to take a side road which met up with a major highway that they would take. When Roy reached the intersection of the side road and highway he had to stop and then turn left onto the highway. When he reached that intersection the weather conditions were not good. Visibility was limited due to for and the side road was snow-covered and slippery.

 

Roy turned onto the highway. He clearly did not see the tractor-trailer headed down the highway in the same direction he intended to go. The driver of the tractor-trailer noticed Roy’s headlights, but by the time he realized that Roy had pulled in front of him it was too late. The tractor trailer slammed into Roy’s vehicle. Harrington was killed.

 

Roy was charged with dangerous driving causing death. He was convicted. He appealed. Cromwell J, on behalf of a unanimous Supreme Court allowed the appeal and entered an acquittal: 2012 SCC 26.

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New & Notable: Defining section 127

Linda Gibbons is a staunch anti-abortionist. On October 8, 2008 she was protesting with a sign outside an abortion clinic. This protest was in contravention of an interlocutory injunction issued in 1994 by Adams J barring such protests within a certain distance of abortion clinics. Gibbons was charged with breaching a court order under section 127 Criminal Code. She sought to quash the information arguing that section 127 had no application as the Ontario Rules 60.11 and 60.12 were a “punishment or other mode of proceeding”.  Her motion was dismissed, a decision upheld by the Supreme Court: 2012 SCC 28.

 

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Pending & Prominent: SCC to consider dangerous driving

At 7:30pm Frederick Belanger was driving on an undivided stretch of highway near Baie-Comeau, Quebec. It was dark. The posted speed limit was 90km/hr. Belanger found himself behind a pickup truck travelling in the same direction. The truck was travelling at a rate of speed of 90-95km/hr.

 

Despite the solid double line on the roadway, Belanger decided to pass the truck. As he manoeuvred around the truck Belanger found himself facing an oncoming vehicle. Both swerved toward the same side in an effort to avoid the collision. Instead they met head on.  The driver was killed instantly. Belanger sustained an injury to his ankle and his passenger suffered a broken femur.
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So now what do you do with your local bawdy house?

Three sections of the Code which deal with prostitution related offences were recently considered by the Ontario Court of Appeal in R v Bedford, 2012 ONCA 186.  The consequences of that section will have some direct impact on policing in this context.  

First, section 213(1)(c) - which criminalizes communicating for the purpose of prostitution - was held to be constitutionally valid.  That offence, therefore, remains unchanged.  Policing and prosecution of the offence should continue as it has in the past.

Second, section 212(1)(j) - which criminalizes living on the avails of prostitution - was held to be constitutionally valid with a modification.  The section will now read as follows (underlined portion new):

Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence...

The thrust of this change appears to be aimed at not criminalizing those who, in a business, fair and transparent manner, lives off the avails of prostitution.  Assuming this is possible, it creates some difficult questions for policing and prosecution of this type of offence.  Clearly traditional "pimps" will be seen as being exploitive, but what about those who run bawdy houses and pay the prostitutes.  Will it depend on what percentage they pay, will it depend on what rules or regulations there are, will it depend on other "contractual" aspects between the prostitute and the employer?  

Third, section 210 - which criminalized keeping a common bawdy house - has been struck down. Further, the term "prostitution" has been struck out of the definition of bawdy-house in section 197.  This ruling, however, has been stayed for a period of 12 months.

New & Notable: Deciding the matter on the merits

Nicole Hubek forgot to attend her trial.   She was charged with assault with a weapon.  She apparently just forgot about it.  As a result of missing her trial date a warrant was issued for her arrest.  She was subsequently charged with failing to attend.  The specific charge read as follows:
On or about the 2nd day of June 2004, at or near Calgary, Alberta, bein a person named in an appearance notice that was confirmed by a justice, did fail, without lawful excuse, to attend court in accordance therewith, contrary to section 145(5) of the Criminal Code of Canada.

Hubek was convicted at trial on that charge.  She appealed successfully based on an argument that she had been charged under the wrong section - 145(5) as opposed to 145(2).
The Court of Appeal reversed that ruling and restored the conviction: R v Hubek, 2011 ABCA 254.  In doing so it offered the following conclusion:
On its proper interpretation, there is no ambiguity in s. 145(5). By its express terms it applies to "the time and place stated" in the appearance notice, and it also expressly applies to attendance "in accordance therewith", which includes appearances under Form 9 "thereafter as required by the court". The Crown in many cases like this has the option of proceeding under either s. 145(2)(b) or s. 145(5). 
We observe, in any event, that the summary conviction appeal judge should not have assumed that an error in reciting the proper section in the information was automatically fatal. Where errors of that type occur, amendment of the information is available under s. 601 of the Criminal Code, in the absence of any prejudice to the accused that cannot be cured by an adjournment of the trial: R. v. Sourwine (1970), 72 W.W.R. 761 at pp. 764-6, 10 C.R.N.S. 380 (Alta. Dist. Ct.); R. v. Royka (1980), 52 C.C.C. (2d) 368 at p. 371 (Ont. C.A.); R. v. Carey, 2011 MBQB 174 at para. 28. Where it appears an information charges an offence under an incorrect section of a statute, the Crown should be given the opportunity to apply to amend prior to the conclusion of the trial. In this case, that did not occur; the alleged error in the information was raised for the first time during the summary conviction appeal [paras 13-14]; [emphasis added].
DG Mack