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).

(more…)

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.

(more…)

Cases Considered: R. v. Kang-Brown, 2008 SCC 18,
R. v. A.M., 2008 SCC 19.

PDF Version: Privacy in Schools: Dogs, Lockers, Bodies and Backpacks

I would like to believe that teenagers are protected from all of the evils of the world when they are at school. At the same time, teenagers are growing into adults and do have rights, such as a reasonable expectation of privacy. The Canadian Charter of Rights and Freedoms (”Charter“) s. 8 provides that:

8. Everyone has the right to be secure against unreasonable search or seizure.

(more…)

Cases Considered: R. v. Warren, 2008 ABCA 436;
R. v. Schultz, 2008 ABQB 679;
R. v. Owusu, 2008 ABQB 715.

PDF Version: Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

The Sex Offender Information Registration Act, S.C. 2004, c. 10 (”SOIRA“) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA’s retroactive application was granted.

(more…)

Cases Considered: R. v. Krieger, 2008 ABCA 394

PDF Version:  Medical Marihuana Suppliers and the Charter

There have been several cases before the courts raising issues concerning the right to access medical marihuana as a defence to criminal charges under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Grant Krieger, a well known Calgary-based supporter of the legalization of marihuana and its use for medical purposes, and someone who suffers from multiple sclerosis himself, has brought several such claims. His attempts to raise the defence of necessity in criminal law have not been particularly successful (see R. v. Krieger, 2003 ABCA 85; R. v. Krieger, 2005 ABCA 202). Arguments based on Krieger’s right to use and produce marihuana as an aspect of his security of the person under s.7 of the Canadian Charter of Rights and Freedoms have met with more success (see R. v. Krieger (2000), 225 D.L.R. (4th) 164, 2000 ABQB 1012, aff’d 2003 ABCA 85, leave to appeal refused, [2003] S.C.C.A. No. 114). More recently, Krieger tried to push the limits of the jurisprudence by claiming a Charter defence to charges of trafficking marihuana for medical purposes in circumstances where he was supplying others with the drug.

(more…)

Cases Considered: R. v. Powder, 2008 ABQB 579; R. v. Powder, 2008 ABCA 568

PDF Version:  Crown Discretion and the Power to Stay Proceedings

In what circumstances can Crown prosecutors stay proceedings with impunity? This was the issue in a recent Alberta case, R. v. Powder, where the court seemed to disagree with the Crown’s actions but also seemed to feel powerless to respond. Given that the Crown may recommence proceedings it has stayed within one year of the stay, this case has implications for how the Crown can deal with a prosecution that has gone off the rails. The case is also of interest because it involves the use of tasers, a law enforcement tool that has come under much criticism lately.

(more…)

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…)