, 05.17.2022 02:11 PM

My latest: get wasted, get violent, get away with it

We Canadians like to feel superior to the Americans.

The Yanks regularly give us reasons to feel superior. There’s their fetishization of all manner of guns, which results in mass-shootings, 693 of them last year alone. Then there’s their schismatic politics, which saw a racist groper elected to the White House, and a violent insurrection against their seat of government, leaving nearly ten people dead.

And then, in recent days, there has been the draft opinion crafted by a few unelected, unaccountable extremists on the U.S. Supreme Court. A decision that will end American women’s constitutional right to control their own bodies.

Canadians eyeball all that, and we feel better about ourselves. We think we have peace, order and good government. Better decisions coming from our highest court, too.

Well, not always. Take, for example, R. v. Brown.

In the blink of an eye last week, Canada’s Supreme Court rendered this country a less-safe place. Unanimously, too. Unless and until it is remedied, R. v. Brown is a decision that will see rapists and murderers walk free here. Guaranteed.

The facts, first, as taken from the high court’s own brief: “On the night of Jan. 12, 2018, Matthew Winston Brown consumed alcohol and ‘magic mushrooms’ at a party in Calgary, Alberta. The mushrooms contain psilocybin, an illegal drug that can cause hallucinations.

“Mr. Brown lost his grip on reality, left the party and broke into a nearby home, violently attacking a woman inside. The woman suffered permanent injuries as a result of the attack. When Mr. Brown broke into another house, the couple living there called the police. Mr. Brown said he had no memory of the incidents.”

The “permanent injuries” blandly referred to, there, were basically the destruction of Janet Hamnett’s arms and hands. Brown, a body-building athlete, broke into her home, and attacked her, over and over and over, with a broom handle.

The case made its way up to our highest court, where Hamnett — and women’s groups, and victim’s rights groups — were essentially told: Too bad, so sad. Writing for an unanimous Supreme Court, Justice Nicholas Kasirer said the “extreme intoxication” section of the Criminal Code violates the Charter in a way that cannot be justified in a free and democratic society and is thereby unconstitutional.

Why, you ask? Good question. Kasirer and his colleagues felt that the section violates the Charter because society could interpret someone’s intent to become intoxicated as an intention to commit a violent offence.

Get that? The section — which was passed by the government of my former boss Jean Chretien — has been in place for a generation, and reflects the state of the law in most other democratic nations on Earth. It reflects common sense, too: If rapists and killers know that getting wasted may get them out of jail — well, we all know what many of them are going to argue, now.

The Supremes don’t know, or they don’t give a damn. The Women’s Legal Education and Action Fund did and does, however. They intervened in the case, pointing to the well-established reality: “The harm caused to women as a result of intoxicated violence is devastating and infringes on their right to security and equality.”

Janet Hamnett, meanwhile, has been left with no justice, and no recourse. Said Hamnett: “I am very disappointed with this decision, (but) it is not about me at this stage.”

“The Supreme Court basically said it’s allowable to attack, hurt, and even kill someone, if the perpetrator is out of control due to drugs or alcohol that were most likely ingested intentionally and willingly.”

Hamnett told the media that the decision creates a precedent, one that tilts the scales in favour of violent criminals. Said she: “Where is the justice in that? This opens a terrifying floodgate … and I fear for future victims.”

So should we all. The Supreme Court’s decision in R. v. Brown is appalling and dangerous. Until it is challenged with a new law — the federal attorney general meekly says he is only “assessing” the ruling — there will be blood.

There will be a bit less willingness to believe we are always better than the Americans, too.

Because, in this case, we just aren’t.

— Warren Kinsella is a lawyer and was an adjunct professor at the University of Calgary’s Faculty of Law


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    Ronald O'Dowd says:


    Let’s see just how long it takes the so-called feminist prime minister to actually represent women and their most urgent and pressing concerns. Tick tock, tick tock.

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    Bill Malcolm says:

    Damned fine commentary.

    So what are the current crop of useless politicians in every party and in every jurisdiction going to do to amend our law to right this SCC wrong? Not a damn thing. And what have our justices been imbibing themselves, for that matter?


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      Ronald O'Dowd says:


      Case law, precedent and other assorted legal goodies are all good and well but nothing must ever Trump the principles of genuine justice, not to mention good old common sense. IMHO, The Supremes are far too in the legal weeds on this one.

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    Robert White says:

    The sad reality of this situation is that before criminal intent can be determined the forensic medical establishment has to establish whether the offender
    knew what they were doing via being conscious of their actions. Criminal Psychiatry Forensic Units have made the case myriad times that some offenders don’t have the capacity to understand their behaviour or actions. Those individuals are locked up for years of assessment usually.

    The offender that gets high and uses that as an excuse for a lack of awareness via automatism would have to meet the test of validity of such a statement based upon past behaviour. If an offender would actually lie it would not be difficult to find that sort of behaviour in terms of past behaviours.

    Liars are generally not successful liars. Even Psychopaths can be tripped up by their behavioural patterns of lies.

    In brief, there should be much more militant laws to protect women from abuse at the hands of men and the legal system, as well as courts, and police.

    Women should declare war on the legislation and get really downright militant about it now. It’s disgraceful to allow women in Canada to be further assaulted by an unresponsive tone deaf legal system and court system of bureucracy too onerous for success on average for Canadian women en masse.

    Canadian jurisprudence better not fail Canadian women again. It’s a pattern if they continue to harrass women with these legal challenges that actually make the safety of women in Canada worse.

    The law is an ass.


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    Derek Pearce says:

    Well well well, there’s a first time for everything– this first being (if they use it, and my bet is they will) that if the government invokes the Notwithstanding Clause, finally they’ll have a majority of Canadians from coast to coast to coast behind them with using it. Legislation is going to have to be passed that overrides the court here. This is a situation where eggheads got lost in arcane legalise and forgot common sense. And I for one have agreed with the SCC on pretty much everything ’til now.

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    CS says:

    Sadly, this type of thing keeps happening! Argh.


    “In my view, this lowers Mr. Nguyen’s moral blameworthiness.” WTF?!?

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    ted says:

    Get drunk at an office party and drive through a check stop. Boom your life is ruined.

    Take weird drugs and do stupid unforgivable shirt and you’re ok.

    No wonder Pierre Poilievre is making such inroads.

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    Obvious Sock Puppet #12 says:

    I am not a lawyer, but long ago and far away, I once attended Law School [graduating, but never articling]. There are two things which my Law School professors would say every now and then, back in the day, which I submit are highly relevant to this sort of nonsensical, unjust judgment: …

    Firstly, “The Supreme Court aren’t Last [on the appeal ladder] because they are Always Right; rather, they are Always Right, because they are Last.”

    In other words, yeah, they can get things wrong. Badly. Just ask Dredd Scott.

    Perhaps more obscurely, in a Canadian context, consider the Askov ruling on the constitutionality of criminal trial delays — a ruling so stupid, the Supreme Court of Canada later had to reverse itself, but doing so in essentially mealy-mouthed language, to conceal what it was doing. Or maybe consider the Guy Paul Morin wrongful murder convictions, which our Supreme Court upheld, later rather shamefully implying that it was Morin’s fault that, as against the massive resources available to the Police and Crown Counsel, with his life in shambles because of the consequences of merely facing such serious charges at all, he did not do all that he might have done in his own defence. Whatever exactly they meant by that, other than “We can do no wrong”.

    Secondly, when politicians (and, sometimes, journalists) criticise this or that ruling of a Court, various Officers of the Court, including not just Judges but many others (i.e., misc. Lawyers) will pipe up and declare, sometimes wisely, but also sometimes quite wrongly and even pompously, that the political critics of decisions of the Courts should be very, very careful in their criticisms, because “they must not bring the Administration of Justice into disrepute.”

    But (it was pointed out to us), Judges in particular seem to be blind to the fact that their rulings can be so egregiously wrong, that they, too, by issuing such half-@$$3d rulings, will thereby “bring the Administration of Justice into disrepute.”

    In other words, yes, there is a need for elected officeholders (i.e., politicians) to be very careful about what they say about matters ostensibly finally settled by the Courts (just as surely as they should say nothing whatsoever at all about matters still before the Courts). But, this isn’t some sort of judicial blanket immunity for judges, even Supreme Court Justices, from criticism in all “finally” settled legal cases, if the rulings are hare-brained, or governed by pseudo-logical legal imperatives lacking all relevance to the lived lives of the citizenry.

    So, when they make patently stupid, or even immoral, decisions, it is entirely right that they should be criticised — and also that measured, Constitutionally sound steps be taken to undo the damage they have done.

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    R. Marut says:

    For the past several weeks every single comment on your site is prefaced with:

    Notice: Undefined offset: 180 in /home/q84jy4qfdyhq/public_html/wp-content/themes/warroom/functions.php on line 314

    there is a problem with the php scripting on your web pages. Actually go to a page on your site with comments and take a look, then call your out-to-lunch web guy. Yikes.

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    Gilbert says:

    The ruling is a disgrace. I’m sure most Canadians agree. Regarding the racist groper, let’s not forget there’s one in Ottawa.

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    Michael Teper says:

    Time for Parliament to have the last word, through use of the “notwithstanding clause”.

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