Author Archives: Jennifer Koshan

About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.

Interim Costs Order Upheld in Language Rights Case

Cases considered: R. v. Caron, 2009 ABCA 34.

PDF Version:  Interim Costs Order Upheld in Language Rights Case

Gilles Caron was awarded interim costs in relation to expert and legal fees for a language rights claim that was eventually allowed by the Alberta Provincial Court (see my previous posts La Belle Province? Developments in Alberta Language Rights Cases, Special Enough? Interim Costs and Access to Justice). Caron’s language rights claim is now before the Alberta Court of Appeal, but in the meantime the Court upheld the interim costs order to Caron and clarified the jurisdiction of superior courts to grant such orders in quasi-criminal proceedings in provincial court.

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Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

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.

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“Litigation by installments”: Further Developments in the Black Bear Crossing Dispute

Cases Considered: Tsuu T’ina Nation v. Frasier, 2009 ABCA 23.

PDF Version: “Litigation by installments”: Further Developments in the Black Bear Crossing Dispute

As noted in a previous post, a February 2008 decision of the Alberta Court of Appeal effectively prevented the Tsuu T’ina Nation from enforcing an eviction notice against residents of Black Bear Crossing whose band membership was disputed until such time as the membership of the residents was resolved (see 2008 ABCA 74). The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied on October 30, 2008 (see 2008 CanLII 55966). Meanwhile, the parties were before the Alberta courts again when the Tsuu T’ina Nation cut off the water and utilities for the three remaining residents of Black Bear Crossing (BBC). The Tsuu T’ina Nation was held in civil contempt by Justice Jo’Anne Strekaf of the Court of Queen’s Bench for refusing to supply the residents with these services after being ordered to do so. Those orders had been made as conditions of an adjournment granted to the Tsuu T’ina in respect of its underlying action pursuing eviction of all remaining residents of BBC on October 20, 2008. The Court of Appeal had left such an action open to the Tsuu T’ina if it did not discriminate between member and non-member residents. On January 15, 2009, Justice Patricia Rowbotham of the Alberta Court of Appeal granted the Tsuu T’ina leave to appeal Justice Strekaf’s October 20, 2008 order (2009 ABCA 23). In a strange twist, however, the previous day Justice Strekaf granted the Tsuu T’ina an eviction order in respect of the one remaining resident of BBC, the other two having moved out after accepting the Nation’s offer of a year’s accommodation off-reserve (see here).

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Medical Marihuana Suppliers and the Charter

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.

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Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

Cases considered: R. v. Jefferson, 2008 ABCA 365; R. v. C.H.L., 2008 ABCA 366.

PDF Version: Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

In two decisions released on back to back days in early November, the Alberta Court of Appeal grappled with the issue of sentencing in serious sexual assault cases. Both judgments were released as Memoranda of Decision, and neither is very helpful in providing guidance to lower court judges for sentencing in this area. The cases call into question the legitimacy of a Practice Note issued by the Court of Appeal to the effect that Memoranda of Decision have less weight than Reasons for Judgment Reserved in sentencing cases. Indeed, in one of the cases the judges themselves question this practice, yet effectively perpetuate it at the same time.

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