Category Archives: Constitutional

Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

By: Lorian Hardcastle

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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 →

The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

By: Jonnette Watson Hamilton

PDF Version: The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

Blog Post Commented On: “Clash of Courts”, Double Aspect Blog by Leonid Sirota, 23 July 2017

In his brief post entitled “Clash of Courts: Senior Superior Court judges are suing Québec over its provincial court’s jurisdiction; other provinces will be affected if they succeed,” Leonid Sirota focused his readers’ attention on a law suit brought by the Chief Justice, Senior Associate Chief Justice, and Associate Chief Justice of Quebec’s Superior Court (on behalf of all of the judges of that court), against the provincial government, noting that it has received little attention outside of Quebec, and certainly much less than it should. The judges of Quebec’s Superior Court are seeking a declaration that much of the jurisdiction of that province’s small claims court, the Court of Quebec, is unconstitutional because it violates section 96 of the Constitution Act, 1867 by granting the Court of Quebec exclusive jurisdiction to hear cases where the amount claimed is more than $10,000 and granting it powers of judicial review over provincial administrative tribunals. I agree that the case — a startling claim by a group of litigants that need to be taken seriously (even if their method for getting the issue before the courts, i.e., before themselves in the first instance, is unorthodox) — deserves to be noticed and that other provinces, including Alberta, will be affected if their claim is successful. Continue reading →

“Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

By: Amy Matychuk

PDF Version: “Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

Case Commented On: McCargar v Canada, 2017 ABQB 416 (CanLII)

On May 5, 2017, Mr. McCargar, currently a federal prison inmate, filed a joint habeas corpus application in the Court of Queen’s Bench on behalf of himself and three other inmates. Habeas corpus is a constitutional and common law remedy for unlawful detention; however, it is usually invoked as an individual remedy because it assesses individual circumstances, so a joint application is unorthodox. Mr. McCargar also undertook to represent his fellow inmates (at their request) in court on the joint application. Justice John T. Henderson quickly disabused Mr. McCargar of the notion that he could act in the role of a lawyer, and in his judgment, described the narrow circumstances in which joint habeas corpus applications are appropriate, clarified the kinds of state treatment that merit the remedy of habeas corpus at all, declined to take jurisdiction of the application, and proposed new restrictions on habeas corpus hearings. He also ordered $1000 in costs against Mr. McCargar, found Mr. McCargar in prima facie contempt of court, and restricted his court filing activities pending a hearing on whether he should be declared a vexatious litigant. Continue reading →