Court Watch: mental illness and “not criminally responsible”

Decisions

Codey Hennigar sentencing decision reminiscent of other NCR verdicts

You can read the decision in Codey Hennigar’s case online here. 

Hennigar was found not criminally responsible due to mental disorder (“NCR-MD”) for the deaths of his mother and grandparents. Several outlets carried the story; here’s the CBC’s article. 

This week also saw Vince Li granted absolute discharge by the Criminal Code Review Board in Manitoba. Li, now going by the name Will Baker, spent years in a psychiatric facility after being found NCR-MD for the violent murder of Tim McLean in 2008.

Naturally, everyone had something to say about this. But as Dal law prof Archie Kaiser told Global News, Canadians have a right to rejoin society if they pose “no risk or no significant risk.” 

“The case law says very clearly, that a person who is an NCR patient who is not a significant danger to the public must be unconditionally released,” he said.

There is a wealth of information online about Canadian NCR law. Dal law grads Lauren Soubolsky and Jim Boyle, now in BC hopefully enjoying better weather than here, have written a great summary in response to Baker’s absolute discharge on their blog The Note Up. CBC’s twin documentaries Not Criminally Responsible (2013) and its sequel Not Criminally Responsible: Wedding Secrets (2017) are both available online.

It’s likely that similar public concerns will arise when Hennigar is inevitably before the Criminal Code Review Board in Nova Scotia.

Family law appeal demonstrates challenges faced by “self-reps”

In a decision released Thursday, the Court of Appeal dismissed the appeal of a husband in a family law matter. Their names are public but I won’t use them. You can read the decision online. 

The ex-spouse, W, appealed the decision of a judge to increase the amount of child maintenance he was paying. He felt the judge below had come to the wrong conclusion.

But an appeal is not a do-over or another kick at the can; it’s an opportunity for a higher court to review the decision of the lower court for mistakes or unreasonable findings. If the appeal court can’t find an error or unreasonable conclusion, it dismisses the appeal, regardless of whether that particular panel of judges might have decided the case differently if hearing it for the first time. This is to ensure finality of decisions; if every decision could just be tried again at the next level, the meaningfulness of any trial decision would be in question.

The Court of Appeal commented on its role in the decision at para 14 (citations omitted):

An appeal is not a retrial for an unsatisfied party to attempt to relitigate the issues or to introduce new issues that were not before the application judge. Through his application to introduce fresh evidence and his submissions, [the litigant] is asking us to hear his application anew and come to a different conclusion. That is not our role.

W was self-represented, likely due to his income — far too high to qualify for Nova Scotia Legal Aid, like his ex-spouse does, but low enough that he clearly felt he couldn’t afford a lawyer. There are very few options for people falling in that middle range.

The federal Department of Justice reported its statistics on self-represented litigants in 2016. Not only do they find the system more challenging to navigate without a lawyer, but self-represented litigants may also have unrealistically high expectations for how their cases should turn out. If you have a lawyer by your side telling you this case is going nowhere, you might be more likely to arrange a settlement that compromises on both sides rather than rolling the dice at trial.

The court system for most provinces has resources for self-represented litigants; here’s Nova Scotia’s. In 2015, John-Paul Boyd at Slaw wrote a helpful guide, “The Rights and Responsibilities of Self-Represented Litigants.” Some lawyers are beginning to take advantage of recent law society regulations allowing them to offer “unbundled” legal services, meaning clients could pay a fraction of the cost to have the lawyer take on only some of the work of the case.

Graham stands by concerns about reporting assault

To follow up on a case I mentioned last week, the Canadian Press has a profile of a sexual assault complainant, Shannon Graham, who spoke out about the hurdles she faced in reporting her assault. Following her assailant’s unsuccessful appeal, she says she stands by her feelings. A case’s outcome doesn’t always affect whether a complainant will feel victimized by the justice system.

In Court

Downey trial ends in acquittal

The trial of Markel Jason Downey wrapped up at the end of last week, and ended Tuesday with an oral decision delivered by Justice Michael Wood. (Schulich School of Law students will know Justice Wood from his annual “Who Let the Dogs Out” guest lecture on Civil Procedure. The rest of you will just have to imagine what that might entail.) CBC has the story.

Downey was charged in a shooting that happened at a Cole Harbour home in 2014. Ashley Kearse was a bystander injured in the shooting; she’s now paralyzed from the chest down. She identified Downey as the shooter, but Justice Wood found that he still had a reasonable doubt about identity. Canadian courts have generally agreed that eyewitness identification, even by someone who has prior familiarity with the accused, is inherently frail evidence.

Downey won a gold medal in boxing at the 2011 Canada Games when he was only 15 years old. Some of the coverage of this case has inquired why he gave up on his dreams of professional athletics to get tangled up in drugs and violence. Something tells me that’s not the right question to be asking.

Universities move to force NSTU to allow student teachers to work

Acadia University, Cape Breton University, Mount Saint Vincent University, St. Francis Xavier University, and Université Saint-Anne are asking the Nova Scotia Supreme Court for an injunction that would require the Nova Scotia Teachers Union to allow their students back into the classroom. Nova Scotia teachers volunteer their time to support student teachers in the classroom, so that’s off during work to rule.

On Friday afternoon, Justice Jamie Campbell heard the parties’ preliminary arguments. I was in meetings on Friday afternoon, but followed along thanks to Blair Rhodes’ tweets. The union’s main angle seems to be that the universities don’t have standing to make this case: Just as any member of the public can’t intervene in a labour dispute and seek an injunction against a party to that dispute, neither can these universities. The union additionally says individual teachers should be given notice, not the NSTU, and that the Labour Board should be deciding this matter.

The universities argue that as the Education Act allows for teacher training, student teachers are included in that, and should be allowed into schools during work to rule.

Outside events such as, oh, I don’t know, back-to-work legislation could render an injunction unnecessary before this is resolved.