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.

Stay Of Interim Funding Denied In Language Rights Case

Cases Considered: R. v. Caron, 2008 ABCA 111

PDF Version: Stay Of Interim Funding Denied In Language Rights Case

In October 2007, Gilles Caron was awarded interim costs by Mr. Justice V.O. Ouellette of the Alberta Court of Queen’s Bench in relation to legal fees for a language rights claim (see here). This case was the subject of an earlier comment on ABlawg. On March 19, 2008, Justice Keith Ritter of the Alberta Court of Appeal denied the Crown’s application for a stay of the interim costs order pending appeal.

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The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm

Cases Considered: R. v. Ferguson, 2008 SCC 6

PDF Version: The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm

The death of 23 year old Darren Varley in the custody of the RCMP in Pincher Creek made headlines in October 1999. Varley was shot by an RCMP officer, Constable Michael Ferguson, who was charged with second-degree murder but eventually convicted by a jury of the lesser offence of manslaughter after a four week trial in 2004 (2 earlier trials having resulted in hung juries). Justice G.C. Hawco of the Alberta Court of Queen’s Bench granted Ferguson a constitutional exemption from s. 236(a) of the Criminal Code, which imposed a mandatory minimum sentence of four years for manslaughter with a firearm, and granted a conditional sentence of two years less one day (2004 ABQB 928). The Crown appealed, and a majority of the Alberta Court of Appeal held that the mandatory minimum sentence could not be avoided (2006 ABCA 261). Constable Ferguson appealed to the Supreme Court of Canada, which dismissed his appeal on February 29, 2008.

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Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

By: Jennifer Koshan

PDF Version: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

Cases Commented On: Morrow v Zhang, 2008 ABQB 125, Morrow v Zhang and Pedersen v Thournout, 2008 ABQB 98

On February 8, 2008, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench struck down the $4000 cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. The cap was imposed in October 2004 via the Minor Injury Regulation, Alta. Reg. 123/2004 (“the MIR”). Justice Wittman’s decision quickly became an election issue, with leaders of Alberta’s major parties each staking out their territory on auto insurance. Premier Stelmach announced that the government would seek a stay of the ruling pending an appeal to the Alberta Court of Appeal. Liberal leader Kevin Taft countered that a Liberal government would not appeal the decision, and NDP leader Brian Mason used the opportunity to advocate for a public auto insurance system. On February 25, 2008, Justice Wittmann denied the stay application. This means that his original ruling, which struck down the cap without providing time for the government to amend the MIR, takes immediate effect.

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Leave to Intervene Denied to Métis Nation in Case Involving Disinterment of RCMP

Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 2, Johnston v. Alberta (Director of Vital Statistics, 2007 ABCA 394, Johnston v. Alberta (Director of Vital Statistics), 2007 ABQB 597

PDF Version: Leave to Intervene Denied to Métis Nation in Case Involving Disinterment of RCMP

The case concerning Constable Lionide (Leo) Johnston’s place of burial has been before the Alberta courts a number of times, and has received a fair degree of media attention. Constable Johnston was one of four RCMP officers killed in the line of duty on March 3, 2005 near Mayerthorpe, Alberta.

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Taking Violence Against Women Seriously in Sentencing Decisions

Cases Considered: R. v. Diebel, 2007 ABCA 418, R. v. Douglas, 2007 ABCA 321

PDF Version: Taking Violence Against Women Seriously in Sentencing Decisions

In two recent cases, the Alberta Court of Appeal has considered certain forms of violence against women to be an aggravating factor in sentence appeals. While both are memoranda of judgments and thus of lesser weight than reserved reasons for decision, the cases are nevertheless indicative of the Court’s resolve to take violence against women seriously. Continue reading →