Cases Considered: R. v. T.W.T., 2008 ABCA 306; R. v. Williams, 2008 ABCA 317.

PDF Version:  Sentencing under the Youth Criminal Justice Act: Are Kids Really Getting Away with Murder?

The Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), has been the subject of a great deal of comment and discussion in recent months. Critics argue that the legislation does not adequately respond to youth crime, and the Conservative government has proposed an overhaul of the Act (see http://www.conservative.ca/EN/1091/106115). In the spring, Justice Minister Rob Nicholson toured the country conducting roundtable discussions with stakeholders, seeking feedback on the need to tighten bail provisions and impose automatic adult sentences for youth found guilty of serious and violent crime and repeat offences.

(more…)

The National Post recently ran a feature choosing different election theme songs for the federal political parties (see http://www.nationalpost.com/news/story.html?id=822081). Critics of Alberta’s dismal turnout on voting day (52.9% of eligible voters) might suggest that the election itself deserved its own theme song in this province - Pink Floyd’s “Comfortably Numb” comes to mind, or perhaps “I’m Only Sleeping” by the Beatles (I am dating myself here - other suggestions welcome). This complacence is troubling in light of the fact that many issues of potential concern to Albertans were discussed during the election, some of which we explored in constitutional law this term.

(more…)

Cases Considered: R. v. Karmis, 2008 ABQB 525

PDF Version:  Lawyers, Clients, Parties and the Right to Counsel

The right to counsel is a revered constitutional right in Canada, but casting aside the understandings of this right that derive from American television shows, what does it really mean? Does it include, for example, the right to retain counsel of one’s own choosing? What if the proposed lawyer was present at the scene of the alleged crime, although not an actual witness to the events? This was the scenario in R. v. Karmis, where a man accused of assault causing bodily harm sought to hire a lawyer who happened to be present at the party where the alleged events occurred.

(more…)

Cases Considered: R. v. White, 2008 ABCA 294

PDF Version:  Alberta Court of Appeal Upholds Constitutionality of Deferring Publication of Information Given at Bail Hearings

In these days of flagrant disregard of publication restrictions, especially by “electronic ban breakers” (in the case of Karla Homolka, for example), it is interesting to see yet another case where various traditional media sought to strike down a provision of the Criminal Code dealing with the publication of evidence heard in bail proceedings.

(more…)

Cases Considered: M.E.B. v. C.W.M., 2008 ABQB 484; N.L.B. v. K.G.C., 2008 ABQB 485; R. v. M.S., 2008 ABQB 488; K.F. v. A.F., 2008 ABQB 496.

PDF Version: Family Violence Cases in Alberta: A Snapshot

In a one week period in August, four decisions concerning family violence were posted on the Alberta Courts website, all written by Justice Donald Lee of the Alberta Court of Queen’s Bench. This is certainly the highest number of cases posted in this area in one week since ABlawg began systematically reviewing Alberta court decisions in the fall of 2007. Three of the four decisions (M.E.B. v. C.W.M., 2008 ABQB 484; N.L.B. v. K.G.C., 2008 ABQB 485; and K.F. v. A.F., 2008 ABQB 496) arose under Alberta’s Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA), and the fourth dealt with a criminal matter (R. v. M.S., 2008 ABQB 488). This post will consider whether these cases, even though they are a very small sample, are representative of family violence matters coming before the Alberta courts. Statistics Canada undergoes a similar exercise each year when it gathers statistics on women’s shelters in a one day period as a snapshot of overall trends (see for example http://dsp-psd.pwgsc.gc.ca/collection_2007/statcan/85-002-X/85-002-XIE2007004.pdf).

(more…)

Cases Considered: R. v. Tran, 2008 ABCA 209

PDF Version:  Infidelity Does Not Necessarily Amount to Provocation

Domestic violence remains a terrible problem in Canadian society, and Alberta has one of the highest rates in the country (Karen Mihorean, Family Violence in Canada: A Statistical Profile 2005 (Ottawa: Minister of Industry, 2005) at 15). Over the past 30 years, legislators, courts and law enforcement officers have generally progressed from treating such violence as a private matter, to confirming that it is as serious as other violence, and finally, to considering the family context as an aggravating circumstance. When domestic violence leads to death, however, perpetrators can argue a provocation defence just as they could in any murder trial. If successfully argued, provocation will reduce a charge of murder to manslaughter. In its recent decision in R. v. Tran, the Alberta Court of Appeal held that infidelity will not necessarily lead to a successful provocation defence in such cases.

(more…)

Cases Considered: R. v. Ferguson, 2008 SCC 6

PDF Version: The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm

The death of 23 year old Darren Varley in the custody of the RCMP in Pincher Creek made headlines in October 1999. Varley was shot by an RCMP officer, Constable Michael Ferguson, who was charged with second-degree murder but eventually convicted by a jury of the lesser offence of manslaughter after a four week trial in 2004 (2 earlier trials having resulted in hung juries). Justice G.C. Hawco of the Alberta Court of Queen’s Bench granted Ferguson a constitutional exemption from s. 236(a) of the Criminal Code, which imposed a mandatory minimum sentence of four years for manslaughter with a firearm, and granted a conditional sentence of two years less one day (2004 ABQB 928). The Crown appealed, and a majority of the Alberta Court of Appeal held that the mandatory minimum sentence could not be avoided (2006 ABCA 261). Constable Ferguson appealed to the Supreme Court of Canada, which dismissed his appeal on February 29, 2008.

(more…)

Cases Considered: R. v. Diebel, 2007 ABCA 418, R. v. Douglas, 2007 ABCA 321

PDF Version: Taking Violence Against Women Seriously in Sentencing Decisions

In two recent cases, the Alberta Court of Appeal has considered certain forms of violence against women to be an aggravating factor in sentence appeals. While both are memoranda of judgments and thus of lesser weight than reserved reasons for decision, the cases are nevertheless indicative of the Court’s resolve to take violence against women seriously. (more…)