Canadian Lawyer

July 2021

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Page 12 of 51 11 activity with the respondents. The couple was convicted, and on appeal to the Court of Appeal for Ontario, the panel of judges found the trial judge had failed to identify the relevant factors to consider when assessing whether intoxication deprived the complainant of her capacity to consent and failed to consider the issue of consent first and separately from the issue of capacity. The Criminal Code defines consent as the voluntary agreement to engage in the sexual activity in question. In her majority reasons for judgement, Justice Andromache Karakatsanis enumerated the four factors someone must understand to have the capacity to consent to sexual activity: the physical act; that the act is sexual in nature; the specific identity of the complainant's partner or partners; and that they have the choice to refuse to participate in the sexual activity. The majority in the case found that consent and the capacity to give consent are insepa- rable and that consent to sexual activity requires someone to be capable of consenting before giving their consent. Trial judges don't have to evaluate consent and capacity sepa- rately or in any particular order. In this case the majority found that the trial judge had not erred in finding the teenager was incapable of consenting and did not give her consent. The majority also found the trial judge did not err in addressing the two questions together in his reasons. Justice Karakatsanis distinguished between consent being prevented and consent being vitiated or rendered ineffective and found that incapacity prevents consent. "The distinction between preventing subjec- tive consent and rendering it ineffective is important, and the proposition that incapacity vitiates rather than prevents subjective consent must be rejected . . . ," she wrote. Police can't sue Crown attorneys for misfeasance Q&A Paul Cavalluzzo Counsel CAVALLUZZO LLP Paul Cavalluzzo has had a storied career as a constitutional, labour and administrative lawyer. He has argued significant cases before the Supreme Court of Canada, the Courts of Ontario, and labour and administrative tribunals, and as commission counsel for the several public inquiries. Recently he argued on behalf of the joint interveners Canadian Association of Crown Counsel and Ontario Crown Attorneys' Association in Ontario (Attorney General) v. Clark. The Supreme Court found police cannot sue Crown attorneys for misfeasance of public office. What was significant about your clients' success in Ontario (AG) v. Clark? If you let police sue Crown attorneys, there'd be an appearance of a conflict of interest which would clearly prejudice the administration of justice. Police and Crown attorneys each have their important roles to play. To let police sue Crown attorneys would suggest they were in effect policing prosecutions through the back door by civil suits. That would send a terrible message to the public concerning the Crown's independence. Were you expecting this decision? It was a difficult case because the Ontario Court of Appeal upheld the right of police to sue Crown attorneys. But if you go into the underlying constitutional principles, it seemed very unlikely that the police would have this right to sue Crown attorneys because of its impact on Crown independence, which is a constitutionally guaranteed concept or principle. The decision also vindicated the conduct of the individual Crowns, both at trial and on appeal. What are its implications? The important implication is that police legal actions don't pierce crown immunity. If you permitted police to sue Crown attorneys, the next step would be victims, or other third parties, suing Crown attorneys. And once you open the floodgates, Crown attorneys would worry about being sued and how they exercise their discretion on prosecutions. Crown attorneys have to be concerned about the public interest and also the rights of the accused. The accused have the right to sue Crown attorneys through the tort of malicious prosecution. And an unrelated constitutional question: Does Quebec have the right to unilaterally amend the Constitution to declare itself a nation and its official language French? Under the amending provisions of the Constitution, Quebec cannot unilaterally declare French as its only official language. Under s. 43, the participation of Parliament is required through a resolution. A key principle underlying our Constitution is that Canada has two official languages. It is not up to one province to change this national constitutional consensus, and I am sure Mr. Trudeau Sr. would have agreed with this! Years in law: 48 Career highlight: Participating in the argument at the Supreme Court of Canada in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia in 2007, when the court constitutionally protected the right to bargain collectively, and Saskatchewan Federation of Labour v. Saskatchewan in 2015, when the court constitutionally protected the right to strike. Wonderful decisions for Canadian workers. Career lowlight: Losing Ontario (Attorney General) v. Fraser in 2011 when the Supreme Court of Canada refused to bring farmworkers, mostly migrant, under the Labour Relations Act of Ontario. We saw what happened to these poor workers during the pandemic without a trade union. "The distinction between preventing subjective consent and rendering it ineffective is important . . ." *answers have been shortened

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