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Crime

Law barring use of extreme intoxication as criminal defence unconstitutional: SCOC

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OTTAWA — Canada’s highest court has ruled that the law barring the use of automatism⁠, or a state of extreme intoxication, as a defence for some crimes is unconstitutional and called on Parliament to consider new legislation.

The Supreme Court of Canada ruled on three cases Friday that examined whether people who commit certain violent crimes can use the defence of automatism⁠ — a state of extreme intoxication to the point where they lose control of themselves.

Justice Nicholas Kasirer, who wrote the unanimous decision, said the section of the Criminal Code that bars the use of this defence for certain acts is unconstitutional.

Kasirer said the use of the Criminal Code section violates the Charter because a person’s decision to become intoxicated does not mean they intended to commit a violent offence.

The section also violates the Charter because an accused could be convicted without the prosecution having to prove the person was willing or meant to commit the act.

The court also said that Parliament may want to enact a new law to hold extremely intoxicated people accountable for violent crimes, to protect vulnerable victims, particularly women and children.

The federal government enacted the existing law in 1995 amid a backlash over a court ruling that recognized drunkenness could be raised as a defence against a sexual assault charge.

Justice Minister David Lametti said in a statement Friday that the government is carefully reviewing the top court’s decision to assess its effect on victims as well as the criminal law.

Lametti noted that the decision does not apply to the “vast majority” of cases involving someone who commits a crime while intoxicated.

One of the cases considered by the court was that of a Calgary man who consumed alcohol and magic mushrooms and then violently attacked a woman while in a state of extreme intoxication.

The court restored the acquittal of Matthew Brown, who was convicted for breaking into a professor’s house and assaulting her with a broom handle while he was naked and high on magic mushrooms.

Kasirer said Brown was not merely drunk or high, but “was in a psychotic state and had no willed control over his actions.”

The court’s other decision dealt with two Ontario cases, for Thomas Chan and David Sullivan.

The men had either killed or injured close relatives. Both were high on drugs — one had eaten magic mushrooms, while the other had tried to kill himself with an overdose of a prescription stop-smoking medication.

Applying the decision in Brown’s case, the court acquitted Sullivan because he proved he was intoxicated “to the point of automatism,” noting the trial judge found he was acting involuntarily.

The top court ordered a new trial for Chan because he was entitled to raise the defence of automatism but no finding of fact had been made in the original trial.

Women’s groups had previously expressed concerns about the defences raised by the men, arguing that they could erode protections for women from sexual assault and other gender-based violence.

Kat Owens, project director at the Women’s Legal Education and Action Fund, said it was important that the court on Friday clarified the difference between drunkenness and extreme intoxication.

By setting a high bar for extreme intoxication, it also sets a high bar for avoiding criminal responsibility, Owens said.

In Brown’s ruling, the court said that drunkenness is never a defence for certain crimes, including manslaughter, assault and sexual assault, a clarification Owens said was valuable “given the many ways in which we see the criminal justice system fails survivors of sexual violence.”

On whether the government chooses to pursue legislation, Owens said that too often the criminal justice system fails and re-traumatizes survivors of sexual and gender-based violence, and focus should be put on the way existing laws are applied and how actors in the justice system interact with survivors.

Owens also said governments could explore responses to sexual violence outside the criminal justice system, such as a restorative justice approach.

This report by The Canadian Press was first published May 13, 2022.

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This story was produced with the financial assistance of the Meta and Canadian Press News Fellowship.

Erika Ibrahim, The Canadian Press

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Crime

‘Elaborate ruse’: Prosecutor says Saskatoon mother in custody dispute faked deaths

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Federal prosecutors in the United States have accused a Saskatoon woman of faking her own death and that of her son in what they describe as an elaborate scheme to illegally enter the country.

Kevin Sonoff, a spokesman for the U.S. Attorney’s Office in Oregon, says 48-year-old # is being detained as a flight risk as she faces two charges related to identity theft.

Walker was reported missing with her seven-year-old son last month. Police discovered them “safe and well” in a rental unit in Oregon City on Friday, following two weeks of search-and-rescue efforts that included scouring the South Saskatchewan River and its banks, where her pickup truck was abandoned.

Court documents filed Monday in Oregon allege Walker “went through extreme efforts to steal identities for her and her son that allowed them to unlawfully enter the United States and hide.”

The documents allege she “thoughtfully planned and engaged in an elaborate ruse in which she faked her death and that of her son.”

The U.S. Department of Homeland Security has charged her with the felony offence of knowingly producing a passport of another person and a misdemeanour charge of possessing identification that was stolen or produced illegally.

The felony charge carries a mandatory minimum sentence of two years in prison if found guilty, while the misdemeanour charge carries up to six months’ imprisonment, the U.S. Attorney’s Office said.

Saskatoon police said they have charged Walker with public mischief and parental abduction in contravention of a custody order, and are looking to extradite her back to Canada.

The boy was returned to Canada on Sunday after a legal guardian picked him up, police said.

Saskatoon police said they began searching for Walker and her son on July 24 after friends reported them missing.

Her red Ford F-150 truck had been found at Chief Whitecap Park, just south of Saskatoon, along with some of her belongings.

The court documents allege Walker took the identities of a colleague and that colleague’s child to open a bank account, and she bought an SUV and drove across the border on July 23. Saskatoon police said she crossed the border south of Lethbridge, Alta., into Montana.

An affidavit from Clinton Lindsly, a special agent with Homeland Security, says Walker and her son’s biological father had been engaged in a lengthy custody dispute and she was supposed to return the boy on July 25.

Lindsly says in the document he told Walker, after her arrest, that “people presumed that she and her son died in the river, to which she spontaneously stated, ‘He doesn’t want to be with his father.'”

The court documents further allege Walker “put a lot of time and effort in planning her crime.”

The documents say officers found a series of notebooks and handwritten notes in Walker’s SUV that included a checklist: dye hair, cover tattoo, pack car, get toys, throw phone in water, ditch car by bridge, possibly buy fishing rod and find the nearest border.

The documents say Walker has no ties to the U.S. and allege she funded her scheme through hidden financial accounts and assets totalling over $100,000.

“The defendant’s kidnapping of her child is extremely serious. While the child has been safely rescued there are no assurances that if the defendant were released she would not try once again to kidnap her child,” say the court documents.

Walker, who remains in custody, is to next appear in court in Oregon on Sept. 7. A defence lawyer believed to be representing Walker could not be reached for comment.

“As the criminal investigation progresses, there may be further charges that Ms. Walker will face as a result,” Saskatoon police Deputy Chief Randy Huisman said Monday.

“Investigators are looking at several different charges, and in relation to the false identity documents that were alluded to, and how she was able to prepare those documents.”

The Federation of Sovereign Indigenous Nations, where Walker worked as its chief executive officer, had organized a vigil and walks through the park to raise awareness about the disappearance of the woman and her son.

The federation also issued its own Amber Alert for the pair, and asked police to do the same. Police said there wasn’t evidence to suggest they were in imminent danger.

The boy’s family said in a statement Saturday that “over the past two weeks of hell,” all they had wished for was the safe return of Walker and the boy.

“When we found out they were both safe, there was sobbing, laughing, dancing, shouting, throwing of shoes and hugging.”

Walker, who is from Okanese First Nation, is also a well-known author. Her recent book “The Prairie Chicken Dance Tour,” published under the name Dawn Dumont, was named last week as a finalist for the Stephen Leacock Memorial Medal for Humour.

This report by The Canadian Press was first published on Aug. 8, 2022.

Mickey Djuric, The Canadian Press

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Crime

High court won’t hear case involving estate of dismembered multimillionaire

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OTTAWA – When Chinese-born, West Vancouver-based multimillionaire Gang Yuan was beaten with a hammer, shot twice and his body chopped into 108 pieces in 2015, the simplest part of the story ended with a manslaughter conviction, but the fate of Yuan’s fortune remained very unclear.

Now the Supreme Court of Canada has refused to hear an appeal from the woman whose identity is protected by a ban but who is described as Mother 1, the first of five women who had a child with Yuan and who claims to be his spouse.

Thursday’s dismissal of the leave to appeal application ends Mother 1’s lengthy legal battle to be declared his spouse which, because Yuan died without a will, would have entitled her to half of his $7 to $21 million estate while Canadian law would have split the rest among his five children.

The B.C. Court of Appeal upheld a lower-court ruling and dismissed Mother 1’s spousal claim last December, finding no “marriage-like relationship” between her and Yuan, even though the two met before Yuan came to Canada and he supported her in China, where she lived with and cared for his parents.

As is customary, Canada’s highest court did not give reasons for its decision on Mother 1’s application.

The dispute over the estate was brushed with notoriety because of Yuan’s untimely and gory death at the hands of once-favoured business partner, Li Zhao.

Court documents from Zhao’s B.C. Supreme Court trial in 2020 trial show he disapproved of Yuan’s playboy lifestyle and treatment of women but Yuan, Zhao and Zhao’s family shared a large West Vancouver home and got along well enough.

That was until May 2, 2015, when the two fought viciously after Zhao believed Yuan first made disparaging remarks about an invention of Zhao’s and then compounded the offence by offering to marry Zhao’s beloved and only daughter as part of the price of financing the invention.

The documents detail a brutal and prolonged fight between the two men that only ended in the driveway of their home when Zhao, who told investigators he feared “life was at risk,” fired twice at close range from a rifle mainly used for shooting rabbits.

Yuan was hit in the neck and died in the driveway.

In finding Zhao guilty of manslaughter, B.C. Supreme Court Justice Terence Schultes, in his oral ruling delivered in October 2020, said that’s when things became “unquestionably bizarre.”

Zhao attempted to dispose of the body by using power tools to cut it into what the ruling described as “108 discrete fragments.”

The 55-year-old even explained his grisly work in the garage of the home by agreeing with the family nanny, as she passed by, that he had been out hunting and had “hunted a bear.”

Zhao had earlier ordered his wife and elderly mother-in-law away from the scene but they eventually asked a family friend to help them call police and Zhao was arrested at his home the following morning and charged with second-degree murder.

Schultes ruled the Crown failed to prove the necessary intent to convict on that charge and found Zhao guilty of manslaughter and interfering with human remains, sentencing him to 10 years and six months on the two counts.

Because Zhao had never asked for bail while awaiting trial and the case was prolonged by delays related to the COVID-19 pandemic, the sentence handed down almost two years ago was reduced to reflect credit for pretrial custody, leaving a total remaining term of two years, four months and eight days to be served for Yuan’s killing.

.If Zhao did not seek early release, he will have completed his entire sentence by early 2023.

This report by The Canadian Press was first published Aug. 4, 2022.

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