By: Lisa Silver

PDF Version: The Creation of Community “Space” in Sentencing in R v Saretzky

Case Commented On: R v Saretzky, 2017 ABQB 496 (CanLII)

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence. Continue reading →

By: Lisa A. Silver

PDF Version: Unpacking R v Barton

Case Commented On: R v Barton, 2017 ABCA 216 (CanLII)

 R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles. Continue reading →

By: Lisa Silver

PDF Version: The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Case Commented On: Alberta (Health Services) v Bhanji, 2017 ABCA 126 (CanLII)

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers. The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority. Continue reading →

By: Lisa Silver

PDF Version: Order In the Skyways: A Comment on the Regulation of Drones

Case Commented On: R v Shah, 2017 ABQB 144 (CanLII)

The increasing popularity of drones is attracting the attention of the regulatory process as municipalities, such as Calgary, attempt to control the use of drones in public areas through the bylaw process (see section 24(c) of the City of Calgary Parks and Pathways Bylaw 20M2003). In fact, the issue has become so pressing that the federal government recently announced immediate action through the Interim Order Respecting the Use of Model Aircraft by amending the Aeronautics Act RSC 1985, c. A-2 to more specifically address the “significant risk” the operation of drones have “to aviation safety or the safety of the public.” However, regulation in this nascent area of recreation has not been without difficulties. The extent to which the regulatory regime can effectively and fairly maintain order in the skyways may appear a simple task but as with any statutory process, “the proof is in the pudding” or as in the recent summary conviction appeal against conviction in R v Shah, 2017 ABQB 144 the “proof,” involving the appropriate application of the standard of proof, was lacking.

The Appellant in this case, ably represented both at trial and on appeal by our very own Student Legal Assistance, was flying a recreational remote controlled drone during the evening hours of January 16, 2016 when he was charged under section 602.45 of the Canadian Aviation Regulations SOR 96/433 enacted under the Aeronautics Act. The section states that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.” Continue reading →