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Charter - Evidence - 'Reasonable Hypotheticals'. R. v. Brar
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal illustrates examples of the evidentiary use of 'reasonable hypotheticals' in Charter challenges, here in a failed challenge to the CCC 232 'provocation' murder defence:[82] The absence of any disconnect is apparent on an examination of the hypotheticals considered in Simard, Mujber, and Fredette, and relied on by the appellants.
[83] One hypothetical supposes a woman who has been abused by her male partner for many years. She responds to taunts and slurs by stabbing him. According to this scenario, the woman who has been abused for years does not fear for her safety when taunted, but instead responds to “protect her dignity.”
[84] It is difficult to imagine that a woman who has regularly been the victim of physical abuse by her partner over many years would not have a legitimate fear of physical violence when being subjected to her husband’s verbal abuse. The husband’s conduct would in all likelihood constitute a threat to cause bodily harm and, therefore, an indictable offence punishable by five years or more: Criminal Code, s. 264.1(1)(a).
[85] Even if one were to accept the hypothetical as reasonable and assume that there was no perceived threat, the denial of a provocation defence in the absence of any perceived threat is consistent with the purpose of the amended s. 232(2). Attacks upon one’s dignity, which do not amount to a serious indictable offence, are incapable of providing a partial excuse for murder.
[86] The second hypothetical involves a homicide triggered by racial or religious slurs. Accepting, as we do, that the purpose of the amendment to s. 232(2) is to eliminate non-criminal conduct as a trigger for provocation, the denial of a provocation defence in circumstances like those posited in the second hypothetical is entirely consistent with the purpose of the legislation. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal noted a Charter strike-down of the mandatory minimum sentence for 'sexual interference', here referencing the relatively new Charter evidentiary of 'reasonable hypotheticals':[54] In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, this court struck down the mandatory minimum sentence of 12 months’ imprisonment for sexual interference as it constituted cruel and unusual punishment under s. 12 of the Charter. This decision was based on reasonable hypotheticals posited by appellate courts across Canada: see e.g., Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400.
[55] For example, in B.J.T., at para. 73, this court referred to the hypothetical proposed in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, an analogous case to the one on appeal:In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21… The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21-year-old had a disability that reduced his moral culpability or if Gladue factors applied, … those two characteristics of the offender could make the mandatory minimum sentence more disproportionate.
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