Friday, February 25, 2011

Well did you Justice Dewar?

Good Day Readers:

We applaud the young lady for having the courage to come forward publicly (Winnipeg Free Press). If you read her comments, with all due respect to His Lordship, she makes a hell of a lot more sense!

The critical question. If nothing else, did Justice Dewar, not having a background in criminal law, at least have the presence of mind to issue a Court Order against Mr. Rhodes for a DNA sample to be entered into the National Data Bank for sexual offenders? Admittedly, there could still be an appeal but assuming the conviction is upheld did/will he? The WFP article (below) makes no mention of this critical consideration. Assuming nothing changes, for purposes of DNA sampling does it matter the accused will not serve any jail time?

To try to find the answer we contacted Media Relations at the RCMP and Winnipeg Police Service. The response there was law enforcement require a court order - they cannot simply go around randomly detaining individuals for sampling.

A very helpful young Duty Crown in the Crown Prosecutor's Office directed us to Section 487.04 of The Criminal Code of Canada (available online) which deals with the matter pointing out it's presumptuousness - trial judges have some discretion in the matter.

Below is an excellent analysis written in layperson language by Toronto area firm Kostman & Pyzer Barristers - Toronto Criminal Lawyers

Notice in paragraph 5 the Crown Prosecutor can make a submission arguing a DNA Order should be issued. We sure hope they did.

So we ask, "Was a DNA sample ordered by the court? If nothing else at least there will be a permanent record.

Clare L. Pieuk
DNA Orders, Primary and Secondary Offences
November 1, 2009

In 1995, despite resistance on the part of criminal defence lawyers and civil rights activists, Bill C-18 was passed, which amended the Criminal Code to create a regime for collecting DNA samples from convicted offenders. Many criminal defence lawyers had argued that requiring offenders to submit bodily samples interfered with their bodily integrity and infringed their right to privacy. Nonetheless, the amendments to the Criminal Code were passed, giving courts the authority to order that offenders give a DNA sample. Samples are stored in a national databank created by the DNA Identification Act for use in investigating unsolved past crimes and future crimes. Under the new regime created by the DNA Identification Act, a judge can make a “DNA order” after convicting an offender of certain proscribed crimes. These orders are legally binding, and the offender must surrender a sample of his or her DNA. The Supreme Court of Canada has declared the DNA order regime constitutional in several cases.

For the purpose of issuing DNA orders, the Criminal Code distinguishes between two types of offences: primary offences and secondary offences. DNA orders may be issued for an individual convicted of a primary or secondary offence. In reality, the two categories cover almost every common offence in the Code.

Primary Designated Offences are listed in s. 487.04 of the Criminal Code. There are over 50 offences designated as primary offences. They are mostly of a violent or sexual nature, but also include especially serious offences such as hijacking, using explosives, endangering the safety of an aircraft, and participating in terrorist activities. If an individual is convicted of a primary offence, the judge must make a DNA order with respect to that person, unless the defendant and his or her criminal defence lawyer are able to satisfy the court that the impact on the defendant’s privacy and bodily integrity significantly outweighs the public interest in protecting society through the early detection, arrest and conviction of offenders. The burden on the accused is particularly high. The defence lawyer must show that the negative effect on the offender would be “grossly disproportionate” to the benefits for society. A DNA order may be avoided for a primary offence if the offence was extremely minor (for example, a sexual assault that consisted of touching another person’s leg or buttocks) and/or the defence can show that there is very little chance of the offender reoffending.

Secondary Designated Offences are also listed in s. 487.04 of the Criminal Code. They include all indictable offences under the Criminal Code for which the maximum sentence is five years or more, and all indictable offences under s. 5 (trafficking), s. 6 (importing and exporting narcotics), and s. 7 (production) of the Controlled Drugs and Substances Act punishable by a maximum sentence of five years or more. Section 487.04 also lists almost 20 additional secondary designated offences, including escaping from custody, assault, arson, criminal harassment or uttering threats. If an individual is found guilty of a secondary offence, the court can make a DNA order if it determines that it is in best interests of the administration of justice to do so. Often, the Crown Attorney will request a DNA order and make submissions to the judge arguing in favor of the Order, and the accused’s criminal defence lawyer will make submissions against the making of the Order. The court will then weigh a number of factors, including the submissions of counsel, the nature and circumstances of the offence, the criminal record of the accused, and the impact of such a DNA order on the accused’s right to privacy and security of the person, to decide whether a DNA order is warranted.

One of the most controversial aspects of the DNA Order Regime is that it applies retrospectively. According to s. 487.052 of the Criminal Code, the Court may order that DNA samples be taken from certain offenders convicted of committing a crime before Bill C-18 came into force. Retrospective Orders are made by way of an ex parte (without notice to the offender) application. They can be made against an individual who is serving a prison sentence of at least two years on the date of the application, for murder, certain listed sexual offences, or manslaughter, They can also be made against an individuals serving a sentence of at least two years on the date of application who has been declared a “dangerous offender” under the Criminal Code. Generally speaking, as a matter of fairness, laws only apply to actions committed after a law comes into force. However, in Regina v. Rodgers, the Supreme Court of Canada declared retrospective DNA orders constitutional.

DNA orders can be issued to young offenders (individuals between the ages of 12 and 17 tried under the Youth Criminal Justice Act). The same rules about primary and secondary offences apply to young offenders. However, in the case of Regina v. R. C., the Supreme Court of Canada ruled that it is appropriate to consider the underlying principles and objectives of the Youth Criminal Justice Act when determining whether to issue a DNA order against a young offender for a primary offence.

DNA orders can also be made when an individual is found “not criminally responsible” by way of insanity or mental illness [NCR] for a designated primary or secondary offence, even though an NCR finding is not technically a finding of guilt. Moreover, when a judge looks at an offender’s criminal record to determine whether to issue a DNA order for a secondary offence, they may consider any previous NCR findings in making their assessment.
Winnipeg Free Press - PRINT EDITION
Victim: 'This is beyond sexist'
Woman outraged over lenient sentence for convicted rapist
By: Mike McIntyre
Posted: February 25, 2011

Manitoba Justice Robert Dewar gave a convicted rapist a two-year conditional sentence.

A rape victim is slamming the controversial decision of a Manitoba judge who gave her attacker a lenient sentence on the basis she may have sent out mixed signals about her sexual intentions.

"This is beyond sexist. I don't even know how to comment on it. No woman asks to be raped. I'm so pissed off," the 26-year-old single mother told the Free Press in an exclusive telephone interview Thursday from her rural Manitoba home. "Nobody knows what it was like to be in this position. It's not something I'd ever want to go through again. No woman should have to."
Queen's Bench Justice Robert A. Dewar (Ken Gigliotti/Winnipeg Free Press Archives)

Appointed to the bench by the Harper government Sept. 9, 2009

Born in Ottawa, Dewar received a BA in 1970 and a law degree in 1973 from the University of Manitoba

Joined the law office of Pitblado & Hoskin in Winnipeg in 1973 and was a partner there from 1979 to 1998

Became a partner with Hill Dewar Vincent, another city law firm, in 1998. Continued there until his appointment to the bench

Was appointed a Queen's Counsel in 1991 and is a past director of Legal Aid Manitoba

Dewar does not have a background in criminal law. His practice focused on commercial and corporate litigation, insolvency, professional liability, discipline matters, construction disputes and insurance

Source: Federal government release on Dewar's judicial appointment

Outdated thinking horribly pervasive Kenneth Rhodes was given a two-year conditional penalty last week, which allows him to remain free in the community. The Crown wanted at least three years behind bars, citing numerous case precedents suggesting that is the starting point for a major sexual assault.

Queen's Bench Justice Robert Dewar disagreed, saying the victim gave out signs "sex was in the air" through her suggestive attire and flirtatious conduct on the night of the attack. He called Rhodes a "clumsy Don Juan" who may have misunderstood what the woman wanted when he forced intercourse along a darkened highway outside Thompson in 2006.

"That's bulls---t," the victim said Thursday. "I did say no to him. I kept saying no. He knew that I didn't want (sex)."

Rhodes and a friend met the woman and her girlfriend earlier that night outside a bar under what the judge called "inviting circumstances." Dewar specifically noted the women were wearing tube tops with no bra, high heels and plenty of makeup.

"They made their intentions publicly known that they wanted to party," said Dewar. He said the women spoke of going swimming in a nearby lake that night "notwithstanding the fact neither of them had a bathing suit."

"I wasn't dressed like a skank. I was like 20 years old, wearing a tube top. It was summer," said the victim, who cannot be identified as she is the victim of a sexual assault.

The foursome left the parking lot in a vehicle and headed into the woods, court was told. Rhodes began making sexual advances toward the victim, who initially rejected him but later returned his kisses. Rhodes then forced himself upon the woman once they were alone.

"I didn't like the guy. He was beyond creepy, a real pervert," she said Thursday. "He deserves to be behind bars for what he did." She had asked her friend to stop the car to let her out because she no longer wanted to be near Rhodes. Unfortunately, he also exited as the other two drove away, leaving them alone together on the highway.

Rhodes pleaded not guilty at the trial on the basis he thought the woman had consented. Dewar rejected his defence, but said aspects of it could be considered in sentencing.

"This is a different case than one where there is no perceived invitation," said Dewar. "This is a case of misunderstood signals and inconsiderate behaviour." Dewar said he didn't want to be seen as blaming the victim but all of the factors surrounding the case must be viewed to assess "moral blameworthiness."

"I'm sure whatever signals were sent that sex was in the air were unintentional," he said. The Crown has 30 days to file an appeal of Dewar's decision. No decision had been made as of Thursday.

"I hope they appeal. I would like some justice. This is not real justice to me. It's a slap on the wrist," said the victim.

The woman said she has suffered severe psychological trauma from the attack, including trust issues with men and a fear of being alone.

"It's impacted me in so many ways," she said. The woman also bears a permanent reminder of what Rhodes did to her in the form of a scar on her knee, a sign of the violence the much larger man used to restrain her.

Defence lawyer Derek Coggan told court last week it's clear alcohol was a factor for both his client and the victim in terms of their ability to make good judgments. He said Rhodes never threatened the woman, didn't have a weapon and was simply "insensitive to the fact (she) was not a willing participant."

Dewar agreed the case was not "typical" of ones the courts often see and shouldn't be viewed as a precedent.

"There is a different quality to this case than many sexual assaults," he said. "Not all guilty people are morally culpable to the same level. This difference is not to be reflected in conviction. It can be reflected in sentencing."

Rhodes has also been ordered by the judge to write a letter of apology to the victim -- something the woman says she has no interest in reading.

Republished from the Winnipeg Free Press print edition February 25, 2011 Page A3


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