Trial judge did not impose minimum, gave conditional sentence, said sentence was too
cruel for this case, and thus violate section 12 of charter - Granted Ferguson a
constitutional exemption (individual remedy)
Main issue: Is this minimum sentence too cruel? If it is, can a trial judge grant exemption?
Under what circumstances is this okay?
Judgement: Appeal court set aside the sentence and gave minimum sentence –
exemptions should not be given as remedy for cruel punishment imposed by a law, if it
really is cruel, the law can be declared of no effect – cannot undermine the rule of law
CASES CH 2
Case #5 Chase
Background: Chase entered the home of the complainant, grabbed her breast
Main issue: How should ‘sexual’ be defined?
Judgement :Trial judge said not sexual assault because did not touch ‘private parts’
Appeal to SCC, SCC said is sexual assault, yes guilty
Sexual assault occurs when application of force happens in circumstances of a sexual
nature, such that the sexual integrity of the victim is violated.
Case #6 Toews
Background: Was impaired, sleeping in a sleeping bag in his car parked, on private
property 5am, key was in the ignition and the stereo was playing loudly, a friend drove
him to the destination, no intention of driving
Main issue: Was he in ‘care or control’ of section 253?
Judgement: Appeal court said not guilty, he had no actus reus – Presumption of Care
and Control – when found in driver’s seat, not automatically convicted, onus on accused
to prove he did not have any intention of driving vehicle (sleeping bag support
statement that he was merely using the vehicle as a place to sleep)
Case # 7 Cooper 1993
Background: Cooper convicted of murder of Careen, Was having consensual sex, they
started arguing, he hit her head and grabbed her by throat and shook her (at front seat),
then he recall nothing and woke up in back seat, finds her dead
Main issue: Did mens rea and actus reus coincide? Accused said he did not have murder
intent because he “blacked out” before her death occurred.
Judgement: SCC said still guilty, because when he committed a series of acts that
resulted in her death, these acts are considered as being “all part of the same
transaction”, if necessary MR coincide at any time with one of these acts, the accused