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.

Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

Cases considered: Alberta (Child, Youth and Family Enhancement, Director) v. Q.F., 2008 ABQB
PDF Version:  Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

It is always interesting to see a court sending a message to the government about the difficulties presented by a particular piece of legislation. In constitutional law, the dialogue metaphor has been used (and some would say overused) to describe this process of back and forth between the courts and legislatures (see Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75). Outside the constitutional law context, however, legislatures are not forced to listen and respond, as the remedial implications of striking down a piece of legislation, or severing certain sections as unconstitutional, are absent. Courts might thus need to repeat themselves before the legislature takes notice of non-constitutional problems with a statute, as we see in a recent child welfare case in Alberta.

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Supreme Court denies leave to appeal to parents in disinterment case

Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188, leave to appeal denied by S.C.C.

PDF Version:  Supreme Court denies leave to appeal to parents in disinterment case

On November 13, 2008, Justices Louis LeBel, Marie Deschamps and Louise Charron of the Supreme Court of Canada denied leave to appeal to Grace Johnston in a case involving her right to have a say in the disinterment of her son’s remains. No reasons were provided for the Supreme Court’s decision, although it is interesting to note that no costs were awarded against Grace Johnston for pursuing the leave to appeal application. As noted in previous posts on this case, (https://ablawg.ca/2008/01/12/leave-to-intervene-denied-to-metis-nation-in-case-involving-disinterment-of-rcmp/#more-44 and https://ablawg.ca/2008/06/07/disinterment-of-rcmp-officer-may-proceed-despite-parents%E2%80%99-wishes/#more-153), the Alberta Courts upheld the decision of the Director of Vital Statistics under the Cemeteries Act, R.S.A. 2000, c. C-3, to permit disinterment of Constable Leo Johnston’s remains on the application of his widow Kelly Barsness. Constable Johnston was one of four RCMP officers killed in the line of duty near Mayerthorpe, Alberta in March 2005, and was originally buried in his home town of Lac La Biche. Ms. Barsness’s wish to have Constable Johnston’s remains moved to the special RCMP Cemetery in Saskatchewan can now proceed, in spite of the objections of Grace Johnston, her husband Ronald, and members of the Métis community who were denied any standing in the case.

Recent Developments in the Black Bear Crossing Dispute

Cases considered: Tsuu T’ina Nation v. Bearchief, 2008 CanLII 55966 (S.C.C.)
 

PDF Version:  Recent Developments in the Black Bear Crossing Dispute

As noted in my previous post on Tsuu T’ina Nation v. Bearchief, the Tsuu T’ina Nation was effectively prevented from enforcing an eviction notice against residents of Black Bear Crossing (BBC) whose band membership was disputed, until such time as the membership of the residents was resolved. The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied by Chief Justice Beverley McLachlin and Justices Morris Fish and Marshall Rothstein on October 30, 2008 (with costs against the Tsuu T’ina Nation).

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The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

Cases Considered: Victoria (City) v. Adams, 2008 BCSC 1363

PDF Version: The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

The recent decision of the B.C. Supreme Court finding municipal bylaws unconstitutional for prohibiting certain practices associated with homelessness in parks has received a great deal of media attention in Alberta and nationally. In Victoria (City) v. Adams, Justice Carol Ross considered bylaws in the City of Victoria that prohibit persons from “tak[ing] up temporary abode over night” and erecting or constructing “a tent, building, or structure, including a temporary structure” in city parks (Parks Regulation Bylaw No. 07-059, ss. 14(d) and 16(1)). Justice Ross found that these provisions violated the rights of homeless persons to life, liberty and security of the person under section 7 of the Charter, and that the violation was not in accordance with the principles of fundamental justice or a reasonable limit under section 1 of the Charter. This post will consider the implications of the case for Alberta, and in particular Calgary.

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Crown Discretion and the Power to Stay Proceedings

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.

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