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.

Recent Developments in the Black Bear Crossing Dispute

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

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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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Thoughts on Alberta and the Federal Election

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.

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Lawyers, Clients, Parties and the Right to Counsel

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.

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