Ontario had the lowest rate of family violence in 2010, according to new data from Statistics Canada.

Victims of police-reported intimate and non-intimate partner violence, by age group of victim (Source: Statistics Canada)

There were 196 victims of police reported family violence per 100,000 of population in Ontario, compared with a Canada-wide rate of 294 victims per 100,000, according to the report. Prince Edward Island and Nova Scotia were the only other two provinces that came in with a rate under the national average.

At the other end of the scale, Nunavut had 3,409 victims per 100,000 followed by Northwest Territories with 2,455. Yukon and Saskatchewan were next with 842 and 644 victims per 100,000 respectively.

Statistics Canada reported 99,000 family violence victims in total nationwide, accounting for one quarter of all victims of violent crime reported to police. About half the family victims were spouses, with the other half made up of children, parents, siblings or extended family members.

For the first time, the study also drilled down to census metropolitan areas, consisting of urban centres and their surrounding areas. Overall, the rate of family violence in CMAs was 232 per 100,000. In non-CMAs, which include small cities, towns, and rural areas, the rate almost doubled to 436 per 100,000. With a rate of 98 per 100,000, the Ottawa CMA recorded the lowest rate of family violence in the country. Saint John, N.B., had the highest rate among CMAs, at 420 per 100,000, more than four time higher than Ottawa.

The report found the risk of becoming a victim of family violence was more than doubled for females compared with men, with 407 victims per 100,000 women and 180 per 100,000 men. The distinction was starkest in the 25-34 year age group, where there were 709 female victims per 100,00 compared with 216 per 100,000 males. Women accounted for 70 per cent of the victims of family violence, and 81 per cent of all spousal abuse victims, according to the report.

Not all reports result in charges, but Statistics Canada found charges were more likely in incidents involving family members. In 2010, 56 per cent of accused family members were charged, compared with a 43-per-cent rate when the accused was unrelated. Charges were also more like when the family violence victim was female, with 60 per cent of accused charged, compared with 46 per cent when the victim was male.

The Supreme Court of Canada will hear the following appeals this week including the highly anticipated R. v. Cole, about a high school teacher who was charged after nude photos of a Grade 10 student were found on a laptop issued to him by his regional school board. The photos were ruled inadmissible by the Ontario Court of Appeal a year ago on the principle that Cole had a right to expect his personal files on the computer’s hard drive would remain private.

May 14 — Federal Court — Callaghan v. Chief Electoral Officer of Canada

Administrative law: This case relates to expenses during the 2006 federal elections. The chief electoral officer wouldn’t reimburse certain expenses submitted by some Conservative party candidates because he was concerned that the party might have incurred the advertising costs but then transferred them to the candidates since it had almost reached its spending limit. The candidates successfully challenged the officer’s decision before the Federal Court but the Federal Court of Appeal allowed the appeal.

May 15 — Ontario — R. v. Cole

Charter of Rights and Freedoms: Richard Cole was a computer science high school teacher. One of the school’s information technologists found naked photos of a female student on Cole’s computer, which he had accessed through another student’s email account. He was charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. At trial, the judge determined that Cole’s s. 8 Charter rights had been violated and excluded the evidence. The Court of Appeal then allowed the appeal and remitted the case for trial. There is a publication ban in the case.

May 16 — Nova Scotia — Aucoin v. R.

Charter of Rights and Freedoms: Brendan Aucoin was convicted of possessing cocaine for the purposes of trafficking. On appeal, he argued that his s. 8 Charter rights had been violated when the police officer conducted a pat-down search, which the majority of the Court of Appeal dismissed.

The Supreme Court of Canada has restored the indecent assault conviction in a case that dates back more than 30 years after concluding the Quebec Court of Appeal went too far in assessing the evidence at trial.

“Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence,’” wrote Justice Marie Deschamps in quoting from R. v. Burke.

The case, R. v. R.P., hinged in large part on the evidence of two witnesses: the complainant M.L. and her sister G.L., who was also the  accused R.P.'s wife. M.L. was 13 years old at the time of the assaults, which occurred more than 30 years before R.P.’s trial. Among M.L.’s allegations were that R.P. sexually assaulted her while babysitting for the couple when G.L. was about to leave for the hospital to give birth to their second child. But G.L. testified that M.L. didn’t babysit on that occasion. Instead, she said she brought the first child to stay with her mother. M.L., the court noted, didn’t contradict G.L. Instead, she could only say repeatedly: “I have no idea. I don’t know.”

Nevertheless, the trial judge believed M.L.’s testimony. It was clear, Deschamps noted in this morning’s decision, that he took into consideration the weaknesses of the complainant’s testimony and found they weren’t determinative given that the incident had taken 34 years before the trial and given M.L.’s young age at the time.

“The trial judge’s approach was coherent and was also supported by the evidence,” Deschamps wrote on behalf of the majority that included justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis. “It did not justify the intervention of the Court of Appeal.”

Key to the ruling was the question of how far the Court of Appeal should have gone in considering the evidence.

“It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an ‘illogical or irrational reasoning process’ that invites appellate intervention,’” wrote Justice Morris Fish in his dissenting opinion that referenced R. v. Sinclair.

The inconsistencies in the case, including the evidence related to the assault around the time of the birth of the second child, made the trial judge’s findings unreasonable, Fish concluded.

“In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children,” wrote Fish in a dissenting opinion supported by Justice Louis LeBel. “G.L. testified that the complainant did not babysit on either occasion. The complainant’s evidence was that R.P. again abused her ‘practically every time’ she babysat during the five years covered by the indictment. G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period.

“It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not ‘interfere with’ ― or tend to contradict or render implausible ― the evidence of the complainant, M.L.”

The trial of a retired Quebec City judge charged with his wife’s murder began Monday.

Retired Qubec City judge Jacques Delisle is the first judge in Canadian history to stand trial for first-degree murder Photo: Le Soleil

Jacques Delisle, 77, is the first judge in Canadian history to stand trial for first-degree murder. He pleaded not guilty at a hearing in March 2011.

Police officers found Marie-Nicole Rainville, Delisle’s wife of almost 50 years, dead of a gunshot wound to the head on Nov. 12, 2009. It was initially reported that the 71-year-old had committed suicide after suffering a stroke in 2007 that paralyzed one side of her body and confined her to a wheelchair.

Seven months later, Delisle was arrested and charged with premeditated murder.

A court document filed by Delisle’s lawyer stated that Rainville’s life had become “unbearable” and she had “expressed a desire to end her life.”

They had two children and three grandchildren and were apparently set to go on a cruise to celebrate their 50th wedding anniversary in the fall of 2010.

“I don’t think he would do anything which she would not want or to harm her,” one judge, who knew the couple well, told Canadian Lawyer at the time of his arrest.

Delisle was appointed to the Quebec Superior Court in 1983 and then sat on the Quebec Court of Appeal for 15 years. He stepped down from the bench six months before Rainville’s death.

The former judge, who was a hunter, was also charged with illegal possession of a firearm, which will be addressed in a separate trial.

Delisle’s arrest shocked Quebec’s legal community. Due to the sensitivity of the case, the province took extra precautions by presenting its evidence in an in camera hearing with a judge before the arrest warrant.

By the end of Monday’s proceedings, 12 jurors had been selected. In it’s opening arguments this morning, the Crown said ballistics tests proved there was no way Rainville could have shot herself.

The trial is expected to last four weeks.

The Ontario Court of Justice released a new set of rules for criminal proceedings this month in a move that its says will help make court proceedings simpler and quicker for self-represented clients.

Jeff Hershberg says he hopes unrepresented litigants will be directed to the new rules.

The Criminal Rules of the Ontario Court of Justice will come into effect July 1 and will govern conduct in all criminal proceedings at the court. They will replace the current Rules of the Ontario Court of Justice in Criminal Proceedings.

“The new criminal rules are brief, written in plain language, and contain extensive commentary regarding their interpretation and application,” states the Ontario Court of Justice. “This reflects the reality that many accused today do not have legal counsel or are unrepresented.”

But some criminal lawyers in Toronto say the rules, while laudable, may require more effort from the court if they hope to have an impact, particularly when it comes to helping self-represented litigants in court.

“While easier to read, self-represented individuals often have trouble understanding the rules even when explained in court in as plain language as one can imagine. The court process is often a scary one for those charged with offences [who] cannot afford a lawyer and are denied legal aid for whatever reason,” says Jeff Hershberg, a criminal defence lawyer in Toronto.

“They are rarely directed to these rules and are not provided a copy in court. Hopefully, with the new rules will come new procedures for making sure self-represented individuals are made aware of them; including providing a copy of the necessary forms.”

Some of the most notable changes to the rules include a 60-day time limit before the scheduled trial date for the hearing of pre-trial matters and a requirement that parties that have decision-making authority attend judicial pre-trial. Additionally, counsel who will conduct the preliminary hearing or a designated counsel with decision-making authority must attend focus hearings. The changes also mean five new criminal rules and three new forms will replace 32 old rules and 15 forms.

Phil Rankin, co-chairman of the Trail Lawyers Association of B.C.’s legal aid action committee is recommending that legal aid lawyers withdraw from handling any of the Vancouver riot cases as the next step in what is now a four-month battle to increase provincial legal aid funding.

Phil Rankin says the move to withdraw from the Vancouver rioter cases should be in place by early May.

Rankin says that the short-term move to withdraw from handling any of the Vancouver rioter cases should be in place by early May.

A second longer-term recommendation to go before the association’s board of governors would see the legal aid lawyers in the province withdraw duty counsel services completely. Legal aid lawyers would also refuse to co-operate with the Crown on matters such as “deals, admissions, agreements — no we don’t need that expert and appearances we are not paid for,” says Rankin. This move would occur later in 2012.

Last November, B.C.’s legal aid lawyers started an escalating job action that saw duty counsel services withdrawn at 50 courthouses for increasingly longer periods over each of the four months. In April, there was a complete withdrawal. Rankin says the withdrawal of duty counsel has resulted in further delays in processing court cases, as now 25 to 30 per cent of individuals today are self-represented.

“This is taking quadruple the time it normally would for these cases,” he notes.

The proposal to withdraw services province-wide was reached after no agreement was forthcoming on increased government funding to restore legal aid services. Rankin estimates that full recovery of the system will take $40 million. On April 10, a small meeting of 35 Vancouver legal aid lawyers was held to determine new job actions.

“We asked what should we do next?” Rankin says, adding there was unanimous support to withdraw from rioter cases but also to stop taking on legal aid cases and co-operating with the Crown.

While he says Vancouver lawyers were ready to “work to rule” immediately, there is still groundwork to be done to ensure other B.C. lawyers want to follow the same course.

“We want to see whether Vancouver is an anomaly,” he says.

He expects the meeting to take place over summer with lawyers throughout B.C. and once a consensus is achieved, the proposal will go before the board of governors. Job action would come some time in October.

The federal government will seek to appeal to the Supreme Court of Canada an Ontario ruling that effectively legalized brothels across the country, Justice Minister Rob Nicholson said on Wednesday.

In Canada (Attorney General) v. Bedford, the Ontario Court of Appeal last month struck down a section of the Criminal Code that bars brothels, saying that forcing sex workers to stay on the street made it hard for them to take safety precautions.

The judges also upheld a section of the code that restricts street prostitution. Accepting money in return for sex is not illegal in Canada, but most related activities are. The safety of sex workers played a large part in the appeal court’s decision.

“The state response is out of all proportion to the state objectives,” the judges wrote. “While the provision is ostensibly aimed at protecting prostitutes from harm, it prevents them from taking measures that could reduce harm and at worst drives them into the hands of the very predators that the law intends to guard against.”

The federal Conservatives say the Criminal Code sections in question are sound. The Supreme Court of Canada will now have to decide whether to hear the appeal.

Nicholson told the House of Commons that Ottawa felt a “binding, national decision” was needed on the constitutionality of the laws on brothels and living on the avails of prostitution.

“Prostitution is harmful for society as it exploits Canada’s most vulnerable people, especially women,” he said.

Nicholson was reacting to a question in the House from Conservative MP Roxanne James, who said she was “absolutely horrified and saddened” by the Ontario ruling.

“Canadians . . . right across our great country are very concerned about this ruling and the impact it will have on women, families and our communities,” she told legislators.

The safety of sex workers has become a high-profile social issue in Canada since the trial and 2007 conviction of serial killer Robert Pickton, who preyed on prostitutes in Vancouver.

If the Ontario court’s decision stands, Ottawa may have to find new ways to regulate prostitution, perhaps by accepting legalized brothels of the sort found in Nevada.

The Province of Manitoba is moving forward in its efforts to improve social services with a new mental-health court opening next month.

Manitoba Attorney General Andrew Swan supports ‘problem-solving’ courts like the new mental-health court.

The new court is similar to the Winnipeg Drug Treatment Court, which specifically deals with drug-addicted offenders. In the new court, a health team will provide support to offenders with mental-health issues and develop a treatment plan, which can include counselling, employment and educational assistance, and the involvement of family members. Taking a hands-on approach, the judge will also meet with the team weekly to discuss offenders’ progress.

The mental-health court aims to provide better support to offenders suffering from mental illness. Peter Tonge tells Legal Feeds that appropriate care is desperately needed. As a criminal lawyer with Legal Aid Manitoba, the majority of Tonge’s caseload involves clients with mental-health issues.

“[A] lot of people that find themselves in the criminal justice system suffer from severe mental illness and they end up in jail because there isn’t a more appropriate place for them to be immediately,” he says. “So we need the mental-health court, which takes people that have been charged with criminal offences and then finds appropriate placement and treatment for them rather than jail as punishment.”

The specialized court will focus on rehabilitation.

“The court anticipates that, as each accused’s mental health improves, their appearances may become less frequent,” said provincial court Chief Judge Ken Champagne in a release. “Upon the treatment plan being completed, the accused will make a final appearance before the mental-health court judge either to be sentenced to a community-based disposition or for the Crown to stay the charges. The entire process is expected to take 18 to 24 months from referral to disposition.”

Judges, lawyers, and staff members working with the mental-health court will also receive specialized training.

Tonge suspects a large percentage of his caseload will be referred to the mental-health court.

“It’s a win-win situation,” he says. “[Offenders] get the care that they need and society gets the security that it’s looking for.”

Justice Minister Andrew Swan echoed that statement. “Problem-solving courts like this help make our communities safer by recognizing and addressing the core reasons people come into conflict with the law in the first place,” he said.

The court will begin sitting on May 10.

The Supreme Court of Canada starts its spring session tomorrow. Here are the scheduled appeals for this week.

April 11 — Quebec — Personne désignée B v. R.

Criminal law: This case is central to the crackdown of an organized crime ring in Quebec. Ten people were arrested based on information from the applicant. In question is whether the applicant had police informer status. There is a publication ban and sealing order in the case.

April 12 — Manitoba — Robert Joseph Kociuk v. R.

Criminal law: Robert Joseph Kociuk was convicted of first-degree murder while committing a sexual assault. DNA profiling was used to convict him in this 1984 “cold case” murder. On appeal, Kociuk claimed that the trial judge did not adequately put the theory of the defence to the jury. The majority of the Court of Appeal dismissed the appeal.

April 13 — Alberta — Adrian John Walle v. R.

Criminal law: Adrian John Walle was convicted of second-degree murder. On appeal, he argued he should have been convicted of manslaughter, and his developmental delays and alcohol consumption should have been considered. The Court of Appeal dismissed the appeal.

The Supreme Court of Canada has agreed to hear the appeal in R. v. Criminal Lawyers’ Association of Ontario.

The case involves three separate criminal trials where the judges appointed amici curiae for the unrepresented accused, set their rate of pay, and ordered the Ministry of the Attorney General to pay them from public funds. The Crown argued the courts do not have the authority to set an amicus curiae’s rate of pay and only Parliament can decide how public money is spent.

The Criminal Lawyers’ Association, which originally intervened in the case and is now the respondent, argues that the courts should be able to determine the compensation for amicus curiae and they should receive fair payment.

“It’s our members who end up being appointed as amicus curiae in criminal trials and obviously our members have an interest in making sure we’re paid at a fair and reasonable rate,” says Andras Schreck, the CLA’s counsel in the case. “[T]he legal aid rate is not a fair and reasonable rate, it’s a grossly inadequate rate.”

For example, says Schreck, if the Crown retained him to prosecute a case, he would be paid $192/hour. However, the Crown argues that if the judge asks him to be on the case to assist the court, then he should be paid $106/hour. “That’s not reasonable,” he says.

A year ago, the Ontario Court of Appeal dismissed the appeal in R. v. Russel, ruling that the courts do have jurisdiction to appoint an amicus curiae and determine his or her compensation.

“Where the court concludes that it is necessary to appoint amicus, it is for the court, not the Attorney General or Crown counsel to set the terms of the appointment. . . . The jurisdiction to appoint amicus must necessarily include the power to set the terms under which amicus will function, including the rate of compensation,” wrote justices Marc Rosenberg, Stephen Goudge, and Robert P. Armstrong in the decision.

“The court could not fulfil its function to administer justice according to law if it could create the role of amicus where that was necessary, but had no power to ensure that the role was filled because it could say nothing about the rate of compensation. We therefore conclude that the jurisdiction to appoint amicus necessarily extends to fixing the rate of compensation,” the judges added.

Adds Schreck: “There are other problems with the Crown being able to unilaterally decide how much amicus curiae gets paid. This is someone appointed by the court to assist the court and the court should be able to determine who that is and what they get paid.”