Category: Constitutional Page 21 of 72

Silencing the Qat’muk Grizzly Bear Spirit

On November 6, 2017

By: David Laidlaw

PDF Version: Silencing the Qat’muk Grizzly Bear Spirit

Case Commented On: Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII)

In the course of reading the recent decision of the Supreme Court of Canada in Ktunaxa Nation v British Columbia, I was struck by the number (13) of authorized non-party intervenors. There is a central omission – who speaks for Qat’muk’s Grizzly Bear Spirit?

The Appellant Ktunaxa Nation described the Qat’muk region as a place of spiritual significance for them. As the Supreme Court said, “Notably, it is home to an important population of grizzly bears and to Grizzly Bear Spirit, or K?aw?a Tuk?u?ak?is, ‘a principal spirit within Ktunaxa religious beliefs and cosmology’” at paragraph 5 in the Majority Decision authored by Chief Justice McLachlin and Malcolm Rowe JJ, concurred in by Justices Abella, Karakatsanis, Wagner, Gascon, and Brown (Majority Decision).

Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

By Jennifer Koshan

On October 17, 2017

In Aboriginal, Constitutional, Property

By: Jennifer Koshan

PDF Version: Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

Case Commented On: McCaleb v Rose, 2017 BCCA 318 (CanLII)

It is a challenge to teach the interjurisdictional immunity (IJI) doctrine these days, in part because the Supreme Court of Canada has been sending mixed, incomplete, and frankly off the cuff messages about the use of this doctrine. IJI has predominantly been applied so as to render provincial laws inapplicable to federal works, undertakings and other federally regulated persons and entities when they impair the core of the federal power over those entities (although the Supreme Court of Canada left the door open for IJI to apply to federal laws that impair provincial entities in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII)). The Court signalled in Canadian Western Bank v Alberta, 2007 SCC 22 (CanLII), that generally the use of the doctrine should be minimized since it is redolent of more rigid approaches to constitutional law that favour “watertight compartments” rather than the more modern cooperative federalism approach. Canadian Western Bank tells us that IJI issues are to be analysed only if the case can’t be resolved on the basis of validity or paramountcy, although the Court has often neglected that progression in cases subsequent to Canadian Western Bank (see e.g. Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 (CanLII)).

JH v Alberta Health Services: The Constitutional Implications of Indefinite Psychiatric Detention

By Kaye Booth

On October 2, 2017

In Constitutional, Health Law

By: Kaye Booth and Heather Forester

PDF Version: JH v Alberta Health Services: The Constitutional Implications of Indefinite Psychiatric Detention

Case Commented On: JH v Alberta Health Services, 2017 ABQB 477 (CanLII)

In 2015, JH appealed a decision by a Review Panel, appointed to determine the need for his continued detention under the Mental Health Act, RSA 2000, c M-13 (Alberta MHA), that he should be held indefinitely in the care of the Foothills Hospital (JH v Alberta Health Services, 2015 ABQB 316 (CanLII)). JH had come to the Foothills with a fever and an infected knee injury the year prior, and was then kept there against his will, based on the Review Panel’s determination. The Review Panel’s conclusion that JH should continue to be detained was based on its view that JH lacked insight into his medical needs and exhibited poor judgment, both of which might put him at risk of harm. The outcome of the case and whether JH would continue to be held in detention was contingent on whether JH fit the criteria for detention set out in section 8(1) of the Alberta MHA, namely that he: (a) suffered from a mental disorder; (b) was likely to cause harm to himself or others, or to suffer substantial physical or mental deterioration if not kept in detention; and (c) was unable to continue at the facility other than as a formal patient. JH’s consulting psychiatrist testified that it was his opinion that JH fit these criteria, as he suffered from a neurocognitive disorder which manifested itself as poor judgment and memory, and that without mental health support in the form of psychiatric detention, JH would deteriorate both mentally and physically. However, an assessment completed by another doctor concluded that JH only had mild memory impairment, and that he understood his health problems enough to maintain health treatment on his own. Justice Eidsvik of the Alberta Court of Queen’s Bench considered JH’s steady employment history prior to the car accident that had left him with cognitive issues, his ability to obtain help both financially and medically on his own, and his commitment to continue on his medication. Based on this evidence, the Court concluded that Alberta Health Services (AHS) failed to prove that JH should continue to be detained, and that any risks to him were not severe enough to justify constraints on his liberty and self-determination.

R v Keror: Police Duties, Accused Duties, and the Right to Counsel of Choice

By Alexandra Heine

On September 25, 2017

In Constitutional, Criminal

By: Alexandra Heine

PDF Version: R v Keror: Police Duties, Accused Duties, and the Right to Counsel of Choice

Case Commented On: R v Keror, 2017 ABCA 273 (CanLII)

Introduction

Mr. Keror was accused of shooting and killing Philip Anny on September 30, 2012. A witness identified the accused as the shooter. He was arrested at 8:15 pm on October 1, 2012 by a member of the Calgary Police tactical team. At trial, the accused made an application to enter into a voir dire. He submitted that his s 10(b) rights under the Canadian Charter of Rights and Freedoms were violated. Justice E. A. Hughes of the Alberta Court of Queen’s Bench found no s 10(b) breach (see R v Keror, 2015 ABQB 382 (CanLII)). A jury convicted Mr. Keror of second-degree murder. The accused then appealed this decision on five grounds. This commentary will focus strictly on grounds one through three. The first ground is as follows: Did the trial judge err by failing to consider whether there was a contextual or temporal link between any delay in facilitating access to counsel and the appellant’s subsequent statement the next day? The second and third grounds of appeal are as follows: did the police violate section 10(b) when they interviewed the appellant before he spoke with his counsel of choice?

At the Alberta Court of Appeal, Justices Marina Paperny, Barbara Lea Veldhuis and Jo’Anne Strekaf held that the Calgary Police did not violate the appellant’s right to consult with counsel of choice. Effectively, the peace officers complied with their duties under section 10(b) of the Charter. The first three grounds of appeal were dismissed on that basis. This decision gives us a glimpse into the struggle that our court system faces when assessing whether or not a person’s section 10(b) rights have been violated.

Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

By Lorian Hardcastle

On September 18, 2017

In Constitutional, Health Law

By: Lorian Hardcastle

PDF Version: Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

Case Commented On: JH v Alberta Health Services, 2017 ABQB 477 (CanLII)

At first blush, JH v Alberta Health Services does not seem to warrant much attention. It is an oral judgement relating to a procedural matter—whether a plaintiff can proceed with a moot claim. However, this case highlights several important issues in mental health law and its resolution could result in significant reforms to Alberta’s Mental Health Act, RSA 2000, c-13. The plaintiff, who was involuntarily detained and treated at Foothills Hospital for nine months, disputed his detention and challenged the constitutionality of several provisions of the Mental Health Act. He was diagnosed with a neuro-cognitive disorder and had also struggled with alcoholism and the physical injuries resulting from a car accident.