Appointments & TransfersNews

The Chief Justice of Canada, the Rt. Hon. Richard Wagner, welcomes the appointment of Mr Justice Nicholas Kasirer to the Supreme Court of Canada.

“Justice Kasirer is a distinguished judge who is widely respected for both his profound knowledge of the law and collegial manner on the bench,” said the Chief Justice. “As a former law professor and experienced member of the Québec Court of Appeal, I am confident that Justice Kasirer will make a significant contribution as a member of the Court.  My colleagues and I look forward to serving Canadians alongside him.”

Justice Kasirer’s appointment is effective September 16, 2019. He will be sworn in as a judge of the Supreme Court of Canada in a private ceremony on that date.

Supreme Court of Canada

[News Release dt. 07-08-2019]

Case BriefsForeign Courts

Supreme Court of Canada: While hearing an appeal for stay of proceedings due to undue delay as under Section 11(b) of the Canadian Charter of Rights and Freedoms, the Court in by a majority view put out a new framework of jurisprudence for the application of the provisions under the said section for achieving reasonably prompt justice.

The Court observed that the framework set out in R. v. Morin [1992] 1 SCR 771  had given rise to both doctrinal and practical problems, contributing to the culture of delay and complacency towards it.

The framework was based on factors constituting the length of the delay, the defence waiver, the reason for the delay and ‘prejudice’ to the accused’s interests in liberty, security and a fair trial. The framework was too unpredictable, confusing and complex and did not encourage participants in the justice system to take preventive measures to address inefficient practices and resourcing problems.

In the new framework set out by the Majority view, a presumptive ceiling of 18 months for cases tried in the provincial court and 30 months for the cases in the superior court, beyond which delay is presumed to be unreasonable. It was held that the delay attributed to or waived by the defence would be subtracted by the total delay. However, the burden would be on the Crown to prove reasonableness of the delay once the ceiling is exceeded on the basis of exceptional circumstances, or a stay of the proceedings shall follow. In the event where the ceiling has not been exceeded the burden of proving unreasonableness of delay shall lie on the defence. It was held that in regard to cases currently in the system the new framework would be applied contextually to avoid thousands of proceedings been stayed due to abrupt change.

The dissenting minority opinion of the Court, held that the new framework is unnecessary and the 30 year old jurisprudence would be enough in dealing with breach of Section 11(b) of the Charter. It was also maintained that a reasonable time for a trial should not be defined by numerical ceilings and that it diminishes the right to be tried within reasonable time. Moreover, the task of fixing presumptive ceilings should rest with the legislature and not the Courts.

However, in the context of the present litigation, a total delay of 49.5 months in a case of dial-a-dope operation of no exceptional complexity, was found unreasonable regardless of framework adopted. Hence, the appeal was allowed, the conviction was set aside and a stay of proceedings was entered. [R. v. Jordan (Barrett Richard Jordan v. Her Majesty the Queen), 2016 SCC 27, decided on 8 July 2016]

Case BriefsForeign Courts

Supreme Court of Canada: Principles of statutory interpretation and determination of Parliamentary intent were agitated in the present appeal by the Crown, with Animal Justice as intervener, against the acquittal by the Court of Appeal of D.L.W. (Respondent) of charges of bestiality. In the present case the Respondent was convicted for offences of a sexual nature against his two step-daughters (complainants in the case), including one count of bestiality.  It was found that the accused had spread peanut butter upon the vagina of the older complainant when she was 15 or 16 years old and induced a dog to lick it off, and took a video of the same. The Trial Court held this to constitute bestiality, while a majority of the Court of Appeal did not.

In a 6:1 decision the Court affirmed Court of Appeal  ruling, rejecting the notion bestiality is an offence encompassing sexual activity of any kind between a person and an animal. The issue was whether, under statute, the crime of bestiality required penetration or whether, as the Crown contended, it now included any sexual activity with an animal. Cromwell J., for the majority, cautioned that the elements of the offence of bestiality, considered a subset of buggery in older legislations, were not statutorily indicated. However, buggery necessitated penetration per anum, whether of man, woman or animal. The Court was not authorised to impute liability by creating or defining common law crimes .Without explanation or express alteration by Parliament, bestiality retained the same legal meaning. Significant changes in 1955, in the 1983 code to reflect a gender-neutral understanding of sexual offences, specifically by the removal of penetration as an element of sexual assault, and 1988 revisions that  added child-related offences of bestiality, were held not to have affected or expanded the definition of bestiality as under Section 160 (1) of the current Canadian Criminal Code.  It was further noted that if the current act was viewed as bestiality, the complainant would be in the position of an uncharged offender.

In her dissent Abella, J., indicated that the modernisation of the Statute dispensed with penetration as an element of bestiality. Buggery (anal intercourse under Section 159)  and bestiality (Section 160, including compelling to commit bestiality, and bestiality in presence of or by a child) were separate crimes in the 1955 revision and amendments in 1955 to the Code’s animal cruelty offences widened the protection from exploitative conduct of more animals, showing changes in Parliament’s approach. Following the same, it would be absurd if bestiality were restricted to those animals alone that were anatomically capable of penetration. If interpreted to include all manner of sexual activity, the crime of bestiality would not be expanded, but merely qualified by recognition of the harm of a legal scenario where half the population could not commit, and many animals could not be victimised by bestiality, if it required penetration. [R. v. D.L.W., 2016 SCC 22, Decided on 9-06-2016]