PDF version: Unconstitutional Regulatory Offences: Too Much and Too Little at Stake  

Case considered: R. v. Keshane, 2010 ABPC 275

In a thorough 22 pages, Provincial Court Judge Donna Groves acquitted Renada Lee Keshane of a $500 ticket for fighting in public. Ms. Keshane was ticketed under a decade-old provision of Edmonton’s Public Places Bylaw, Bylaw 14614, which, the Court ruled, violates the constitutional division of powers. While the cost of litigating this ticket almost certainly dwarfed the fine at stake, constitutional review of bylaw offences is predictably and disturbingly sparse. “Fighting in Public” and similar provisions impose considerable limits on behaviour, but are rarely worthwhile to litigate. The potential result is the injustice of a longstanding unconstitutional provision.

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PDF version: Access to Justice and Representation by Agents 

Case considered: R. v. Frick, 2010 ABPC 280

Cutbacks to legal aid are a harsh reality in Alberta and the rest of Canada. As noted on the website of Legal Aid Alberta (LAA), “as of April 6, 2010, LAA’s eligibility guidelines for full representation by a lawyer have decreased by 30%”. This is due in part to the fact that in this province at present, legal aid funding is highly dependent upon Alberta Law Foundation revenue, and this revenue has been adversely affected by the economic downturn. It is also due to government cuts to Legal Aid. Legal Aid has developed a bandaid of sorts through Legal Services Centres, which “provide clients access to legal information, referral and brief services (in family, criminal, civil and immigration matters) with legal advice in immigration and non-family civil matters.” However, these centres exist only in Calgary and Edmonton, deal only with certain legal matters at present, and perhaps most importantly, do not provide full legal representation. Attempts by lawyers such as Dugald Christie and the Canadian Bar Association to bring constitutional claims asserting rights to representation by paid legal counsel in certain circumstances have not been successful. In such a climate, it is not surprising that other actors - such as agents - have stepped into the fray to provide legal services. A recent Alberta Provincial Court case, R. v. Frick, shows that there are legislative and constitutional limits to the role that agents can play in filling the gaps in legal aid.

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PDF version: Sentencing for Spousal Sexual Violence: Different but Equal

Cases considered: R. v. D.J.D., 2010 ABCA 207; R. v. D.J.D., 2009 ABPC 216

Until 1983, the definition of rape in Canada excluded offences committed by a husband against his wife. In that year, reforms to the Criminal Code did away with the offence of rape altogether, and implemented a new scheme of sexual offences that were gender neutral and could, explicitly, be committed by one spouse against another (see Bill C-127, Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980 81 82 83, c. 125, s. 246.8). The issue of spousal sexual violence has received little specific attention in Canada since the reforms of 1983. However, the African and Canadian Women’s Human Rights Project (ACWHRP) - a project involving lawyers, activists and academics in Canada, Ghana, Kenya and Malawi - is presently studying the lessons learned from the criminalization of marital rape in Canada in the context of efforts to criminalize this form of violence in the 3 African countries. I am completing a review of case law in Canada - some 275 decisions over the past 27 years - which shows that cases of spousal sexual violence still continue to be treated differently from other sexual assault cases when it comes to issues of consent, mistaken belief in consent, evidentiary matters, and sentencing. On the latter issue, a recent case of the Alberta Court of Appeal, R. v. D.J.D., brings to light some of the considerations faced by judges when sentencing offenders for spousal sexual violence.

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PDF version: Another kind of trial delay

Case considered: R. v. Asiala, 2010 ABQB 450

Earlier this year I wrote an ABlawg post discussing s. 11(b) of the Canadian Charter of Rights and Freedoms in relation to three Alberta cases decided in late 2009 (see A policy of delay? The cost of s.11 (b) Charter violations in Alberta). Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. In my post, I noted that trial delays appeared to be a growing trend that should be closely monitored by the citizenry, particularly as they relate to government policy in allocating budgetary resources for judicial services. What I neglected to say is that sometimes delay has nothing to do with government policy, lack of judicial resources or even the tactical advantage gained by one or both sides in a case. On rare occasions delay is caused by the human element of the judicial system.

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Case considered: R. v. B.P., 2010 ABQB 204

PDF version: Lawyer, Not Intervenor

In R. v. B.P., 2010 ABQB 204, Madam Justice Strekaf denied intervenor status to the former lawyer for the appellant accused. The accused had entered a plea to a charge of possession of a weapon for a dangerous purpose. He sought to have the plea set aside on the basis of ineffective assistance by his trial lawyer, Mr. McAviney. Mr. McAviney sought intervenor status in the appeal on the basis that the argument for ineffective assistance of counsel gave him a “direct interest in the outcome of the case” (B.P. at para. 8). He suggested that the “real lis” of the appeal was between Mr. McAviney and the accused, rather than between the accused and the Crown.

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Cases considered: R. v. Legare, 2009 SCC 56; R. v. Morelli, 2010 SCC 8

PDF version: From Legare to Morelli: the prioritization of privacy

A few months ago, the Supreme Court of Canada ordered the retrial of an Alberta man acquitted on the criminal offence of luring a child contrary to s.172.1(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 in R. v. Legare, 2009 SCC 56. Writing for a unanimous Court, Justice Morris Fish rejected the trial judge’s unduly restrictive construction of the offence. Instead, the offence was classified as “inchoate” (at para. 25), making it unnecessary to recast the elements into the traditional compartments of mens rea and actus reus. The Court held that the offence of luring requires proof that the accused had the subjective intention to facilitate (not to commit) a secondary offence and that intention need not be objectively capable of facilitating the offence. The judgment gave teeth to the remedial provision designed to combat the risks of sexual exploitation of children through the Internet. Engaging in two sexually explicit chats with a 12 year old girl may be enough to establish that the accused communicated by computer for the purpose of facilitating sexual touching.

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Case considered: R. v. Ryan, 2010 ABQB 87

PDF version: Faint Hope for the Faint Hope Clause?

Parliament commenced a new session last week. When it was prorogued in December 2009, 14 bills containing amendments to the Criminal Code died on the order paper, including Bill C-36, the Serious Time for the Most Serious Crime Act. Bill C-36 would have repealed the “faint hope” clause, a provision in the Criminal Code that currently allows persons convicted of first or second degree murder to seek early release on parole after serving 15 years of their sentence. Bill C-36 had passed through three readings in the House of Commons, and was before the Liberal dominated Senate before prorogation, where the amendments to the Criminal Code were a matter of some controversy. Now, there is some indication that the government will ask the opposition to reinstate rather than reintroduce the crime bills this session. Reinstatement would require a majority vote in the House of Commons to allow the process of considering the bills to resume where it left off. The difference of course is that the Senate now has several more Conservative members, appointed during the period of prorogation. A recent Alberta case helps to illustrate the potential consequences of Bill C-36 should it become law.

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Cases considered: R. v. Rajasansi, 2009 ABQB 674; R. v. Klein, 2009 ABPC 381; R. v. Nguyen, 2009 ABPC 384.

PDF version: A policy of delay? The cost of s.11(b) Charter violations in Alberta

Back in December, CBC News reported on the stay of proceedings in the trial against Kulwinder Singh Rajasansi and Wesley Keane Sinclair. The two men were charged with sexually assaulting a young woman in October, 2004. The reason for the stay? It took the case 35 months to get to trial - that’s one month shy of 3 years.

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Case considered: Miazga v. Kvello Estate, 2009 SCC 51

PDF Version:  Prosecutorial Accountability?

In its 2002 decision in Law Society of Alberta v. Krieger, 2002 SCC 65, the Supreme Court of Canada affirmed the ability of the Law Society of Alberta to regulate misconduct by Crown prosecutors. It held, however, that where the misconduct relates to the exercise of prosecutorial discretion, the Law Society’s jurisdiction is limited to circumstances where the prosecutor has acted in bad faith. The Court reiterated that, in general, the exercise of prosecutorial discretion is entitled to deference, and may only be reviewed by the Court in circumstances of “flagrant impropriety” (Krieger, para. 49).

In its recent judgment in Miazga v. Kvello Estate, the Supreme Court has affirmed this highly deferential approach to prosecutorial discretion. The Court held that to establish liability for malicious prosecution the plaintiff must demonstrate a) that the defendant was responsible for the prosecution; b) that the legal proceedings ultimately resolved in favour of the plaintiff; c) that the defendant did not have reasonable and probable grounds for a prosecution, objectively speaking (that is, that the defendant’s professional judgment should have indicated that it was not possible that “proof beyond a reasonable doubt could be made out in a court of law” (para. 63); at this stage the prosecutor’s subjective belief in guilt is irrelevant); and, d) that the defendant acted for some improper purpose in bringing forward the prosecution - that the defendant “deliberately intended to subvert or abuse the office of the Attorney General or the process of Criminal Justice” (para 89).

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Cases Considered: Bjelland v. The Queen, 2009 SCC 38

PDF Version: Supreme Court of Canada undermines Trial Judges’ discretion under Charter s. 24(1)

In Bjelland v. The Queen, 2009 SCC 38, the Supreme Court of Canada considered the question of whether faulty disclosure by the Crown could lead to the exclusion of the evidence concerned under s. 24(1) of the Charter. The majority, in a 4-3 decision, developed a test for the exclusion of evidence under s. 24(1) and applied it in a very restrictive way. This raises concerns about their respect for the discretion of trial judges as granted by s. 24(1) of the Charter.

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