Category Archives: Constitutional

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

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. Continue reading →

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

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. Continue reading →

Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

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. Continue reading →

R v Acera: Responding to the Call to Action in Jordan Via Detention Review Hearings

By: Amy Matychuk

PDF Version: R v Acera: Responding to the Call to Action in Jordan Via Detention Review Hearings

Case Commented On: R v Acera, 2017 ABQB 470 (CanLII)

In R v Acera, the Alberta Court of Queen’s Bench reviewed the detention of 34 accused persons in remand awaiting trial. Under s 525 of the Criminal Code, RSC 1985, c C-46, an accused detainee has the right to have their detention reviewed to determine whether they should be released pending trial when either 30 days (for a summary offence) or 90 days (for an indictable offence) have elapsed from the date they were taken into custody. The institution with custody of the accused must make a request on the accused’s behalf for a detention review hearing. At the hearing, the court shall assess the accused’s detention using the criteria in s 515(10) of the Code: whether detention is necessary to ensure the accused’s attendance in court, to protect the public, or to maintain confidence in the administration of justice. However, s 525 also provides an opportunity for a superior court to become involved in case planning to ensure matters reach trial without unreasonable delay, and that additional purpose was the focus of Justice J. B. Veit’s decision in Acera. Continue reading →

All the Pieces Matter: Organized Crime, Wiretaps and Section 8 of the Charter

By: Erin Sheley

PDF Version: All the Pieces Matter: Organized Crime, Wiretaps and Section 8 of the Charter

Case Commented On: R v Amer, 2017 ABQB 481 (CanLII)

Det. Freamon: “Non-pertinent”? How do you log that non-pertinent?

Det. Pryzbylewski: No drug talk.

Det. Freamon: They use codes that hide their pager and phone numbers. And when someone does use a phone, they don’t use names. And if someone does use a name, he’s reminded not to. All of that is valuable evidence.

Det. Pryzbylewski: Of what?

Det. Freamon: Conspiracy.

Det. Pryzbylewski: Conspiracy?

Det. Freamon: We’re building something here, detective. We’re building it from scratch. All the pieces matter.

—The Wire, Season One, Episode Six

This early scene in HBO’s The Wire, in which Detective Lester Freamon instructs his rookie colleague Ray Pryzbylewski on how to tag conversations they’ve overheard on their wiretap of Avon Barksdale’s Baltimore drug operation, dramatizes the strategy of long-term police investigations of organized criminal syndicates: “all the pieces matter.” Seemingly isolated conversations that, standing alone, reveal no evidence of criminal activity, become part of a general web of information which may eventually prove guilt beyond a reasonable doubt in a court of law. But this form of long-term wiretapping—implicating, as it does, a citizen’s right to security from unreasonable searches and seizures under section 8 of the Charter—often fits uneasily within the more exacting framework of constitutional case law. In R v Amer, the Alberta Court of Queen’s Bench had an opportunity to revisit the current state of the law on wiretaps in the wake of a spree of shootings that occurred in Calgary in the summer of 2015. Continue reading →