Category: Constitutional Page 22 of 71

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.

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

By Amy Matychuk

On July 24, 2017

In Constitutional, Criminal

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.

R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay

By Drew Yewchuk

On June 29, 2017

In Constitutional, Criminal, Supreme Court of Canada

By: Drew Yewchuk

PDF Version: R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay

Case Commented On: R v Cody, 2017 SCC 31 (CanLII)

Just a little under a year after the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and established a new framework for the Charter section 11(b) right to a criminal trial within a reasonable time, the Court has released a new decision on the issue. (For my earlier post on Jordan, see here, and for a post discussing interpretation of Jordan by some Alberta courts see here.) R v Cody, 2017 SCC 31 (CanLII) clarifies the Jordan framework, but more importantly it affirms the Supreme Court’s commitment to ending the “culture of complacency towards delay in the criminal justice system” (at para 1) despite the pressure Jordan has placed on Crown prosecutors.

Interim Measures in a Classic Church Property Dispute

By Jonnette Watson Hamilton

On June 28, 2017

In Constitutional, Property

By: Jonnette Watson Hamilton

PDF Version: Interim Measures in a Classic Church Property Dispute

Case Commented On: Bruderheim Community Church v Moravian Church in America (Canadian District), 2017 ABQB 355 (CanLII)

In this brief judgment, Justice Brian Burrows granted an interim injunction restraining the Board of Elders of the Moravian Church in America from interfering with the use of church land and buildings located in Bruderheim, Alberta by the local congregation, formerly known as the Bruderheim Moravian Church and now known as the Bruderheim Community Church. The application of the standard three-part test for an interim injunction is of interest for the “serious issue to be tried” that it discloses, as well as for the understanding of “irreparable harm” applied in the situation of a local congregation being evicted from its place of worship. In addition, this particular dispute appears to have all the elements of a classic church property dispute brought to the civil courts as a last resort as a result of an irreparable rift within a church over a matter of doctrine. The reason for the Bruderheim congregation’s disassociation was a decision by the Moravian Church, Northern Province that individuals were eligible to be clergy regardless of their sexual orientation or marital status.

Charter Violations Inside Prisons: Irremediable in the Name of Protecting the Public?

By Amy Matychuk

On June 25, 2017

In Constitutional, Criminal

By: Amy Matychuk

PDF Version: Charter Violations Inside Prisons: Irremediable in the Name of Protecting the Public?

Case Commented On: R v Blanchard, 2017 ABQB 369 (CanLII)

The applicant in this case, Lance David Blanchard, is a nearly 60-year-old man who committed his first criminal offence (rape) in 1975. His other previous criminal convictions include multiple charges of unlawful confinement, assault (including with a weapon), and manslaughter. Most recently, he was convicted of aggravated assault, kidnapping, unlawful confinement, aggravated sexual assault, possession of a weapon, threatening to cause death or bodily harm, and breach of a recognizance. He has been designated a High Profile offender, and has been incarcerated at the Edmonton Remand Centre (ERC) since June 2014, in administrative segregation and protective custody. His most recent trial received attention from the media and the legal community because of the incarceration of the sexual assault complainant, “Angela Cardinal” (critiqued on ABlawg by Professor Alice Woolley here and here). Having been convicted in that trial, Mr. Blanchard then sought a stay or a sentence reduction because of the severely adverse conditions he experienced while awaiting trial at ERC.