Category: Constitutional Page 20 of 72

By: Amy Matychuk

PDF Version: Alberta Court of Queen’s Bench Introduces the Accelerated Habeas Corpus Review Procedure

Case Commented On: Latham v Her Majesty the Queen, 2018 ABQB 69 (CanLII)

In an attempt to address the proliferation of habeas corpus applications from inmates in Alberta institutions, the Alberta Court of Queen’s Bench (Edmonton) has introduced a new procedure to prevent vexatious habeas corpus applications from wasting court resources. Habeas corpus is a constitutional remedy for an unlawful loss of liberty (see s 10(c) of the Charter, which provides for the right “to have the validity of … detention determined by way of habeas corpus and to be released if the detention is not lawful.”) Since 2014, Alberta inmates have attempted to use habeas corpus to air an increasing number of grievances about their conditions of detention. Because the only remedy available on a habeas corpus application is release from detention, it applies narrowly to deprivations of liberty within an institution (such as transfers from lower to higher security) and is useless as a means of addressing complaints about prison conditions. Nevertheless, Alberta inmates appear either to have misunderstood this limitation or to have ignored it, and the Court of Queen’s Bench has introduced a procedure designed to keep the most senseless of these applications from reaching the hearing stage and thus wasting judicial time.

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By: Daphne Wang

PDF Version: R v EJB: Another Unconstitutional Mandatory Minimum Sentence

Case Commented On: R v EJB, 2017 ABQB 726 (CanLII)

In a previous post, Professor Erin Sheley commented that R v Nur, 2015 SCC 15 (CanLII), may have started a “widespread dismantling of the Criminal Code’s policy of gun-related mandatory minimums.” Since Nur, constitutional challenges to mandatory minimums have reached beyond gun-related crimes. The Supreme Court of Canada in R v Lloyd, 2016 SCC 13 (CanLII), held the one-year mandatory minimum for drug trafficking under s 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, SC 1996 c 19, to be unconstitutional (at para 56). By doing so, the SCC left other offences with mandatory minimums vulnerable to constitutional challenge under s 12 of the Charter. Following Lloyd, the recent Court of Queen’s Bench decision R v EJB found the one-year mandatory minimum for sexual exploitation under s 153(1.1)(a) of the Criminal Code, RSC 1985, c C-46, to be of no force or effect (at para 90).

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