BenchPress - Vol 42-2 - LawNow Magazine

BenchPress – Vol 42-2

  1. ‘Til Law Do You Part

In a recent case, the Alberta Court of Queen’s Bench had to determine if a marriage was legally valid. In 1997, the couple in question travelled from Canada to Vietnam (where both were born) to get married in a traditional Vietnamese ceremony. However, no paperwork was filed and the Record of Marriage document was unsigned. Upon return to Canada, the couple threw another traditional engagement and wedding ceremony, again without any formal paperwork.

Years later, the wife filed for divorce and requested division of the matrimonial property. The husband argued that the couple was never actually married: the wedding(s) were only for show for the family after they had discovered that the wife was pregnant. He pointed to the fact that they filed their tax returns as a common law couple.

Generally, a marriage in a foreign country is considered legally valid in Alberta if it is a legally valid marriage in the foreign country.  The Court admitted it did not know what the law of marriages was in Vietnam in 1997 to determine on its own if the marriage was valid. However, the evidence demonstrated that many people in Vietnam, including local officials, considered the parties married under Vietnamese law. Moreover, the couple had children, lived together for over a decade and held themselves out to be married. Therefore, the Court found that the marriage was legally valid.

Vo v. Vo, 2017 ABQB 628

  1. Hit and Run No More

The British Columbia Supreme Court handed down a record-setting punitive damages award to a driver in a hit and run case. In 2014, Veronica Howell was a 22 year old who was pursing a degree in English literature and was hoping to become a librarian. She was hit by a pick-up truck while crossing the street. The driver did not stop after striking her, leaving her unconscious and bleeding. He even accelerated onto oncoming traffic to get away.  Due to the accident, Howell now has chronic pain, hearing problems, brain injury which impairs her cognition, and aggravated pre-existing conditions.

The owner of the car, Leon Machi, claimed that he was not driving at the time. The Court did not believe him based on his testimony and video evidence. The Court also added that even if he wasn’t the driver, he lent his vehicle to many unnamed drivers, which would make him vicariously or indirectly liable.

Notably, the Court found that Howell was 25% liable because she was jaywalking at the time of the incident. Therefore, the Court reduced Machi’s damages by 25%. The total value of damages awarded was approximately $1.6 million, of which $100,000 was provided for punitive damages. This is the largest amount for punitive damages awarded in Canadian legal history in a hit and run case.

Howell v Machi, 2017 BCSC 1806

  1. No Reasonable Expectation of Privacy in Schools

In 2011, a high-school teacher in Ontario was caught red-handed making secret videos with a camera pen of female students, aged 14-18, and a female teacher . The footage had no nudity or sexual activity recorded, but focused on cleavage.  The teacher was arrested and charged with voyeurism of a sexual purpose under the Criminal Code. At trial, the judge found that the recordings were not of a sexual purpose because there was no nudity or sexual activity and acquitted the teacher. On appeal, the Ontario Court of Appeal (“ONCA”) found that the recordings were for a sexual purpose because of the focus on cleavage. However, the ONCA still dismissed the appeal, agreeing with the acquittal, because it found that the students did not have a reasonable expectation of privacy since the videos were taken in the public areas of the school.

R v Jarvis, 2017 ONCA 778

  1. Deference to Trial Judge’s Findings

The Supreme Court of Canada (“SCC”) released a decision highlighting the deference given to trial judge’s decisions even when an appeal judge dissents.  At trial, the accused was found guilty of sexual assault for having non-consensual intercourse with his date after a party. The accused claimed it was consensual, but the trial judge found his date to be credible and that she had experienced genuine trauma. He also noted that the accused stated that he would not have likely taken “no” for an answer.

At the Alberta Court of Appeal, the majority found that the trial judge’s analysis was not in error. The sole dissenting judge, Justice Berger, however, argued that the trial judge erred in his analysis and came to an “unreasonable verdict” according to Section 686(1)(a)(i) of the Criminal Code. He dissented to avoid a wrongful conviction. This Criminal Code provision states that an appeal court can allow an appeal of a trial judge’s decision where the trial judge has reached an unreasonable verdict in convicting a person that is unfit to stand trial or not criminally responsible on account of mental disorder. His dissent opened the door for an “as-of-right” appeal. In an “as-of-right” appeal of criminal cases, the Crown can appeal to the SCC on a question of law where the judge disagrees or dissents.

At the SCC, the justices had to decide whether the trial judge erred in his analysis and if so, whether the errors justified Justice Berger to dissent. The SCC found that the trial judge did not err in his analysis in a very short and straightforward decision.

The SCC’s response to this appeal sends the following message according to commentators:

  • the high level of deference to the findings of trial judges is reinforced; and
  • despite the straightforward nature of the case which did not raise substantive issues of law, the “as-of-right” process shows that fairness is highly valued in our criminal justice system where the stakes are high.

R v. Bourgeois, 2017 SCC 49


Aaida Peerani
Aaida Peerani is Staff Lawyer and Editor for LawNow Magazine at the Centre for Public Legal Education Alberta.

A Publication of CPLEA

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