Category Archives: Constitutional

Medical Marihuana Suppliers and the Charter

Cases Considered: R. v. Krieger, 2008 ABCA 394

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There have been several cases before the courts raising issues concerning the right to access medical marihuana as a defence to criminal charges under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Grant Krieger, a well known Calgary-based supporter of the legalization of marihuana and its use for medical purposes, and someone who suffers from multiple sclerosis himself, has brought several such claims. His attempts to raise the defence of necessity in criminal law have not been particularly successful (see R. v. Krieger, 2003 ABCA 85; R. v. Krieger, 2005 ABCA 202). Arguments based on Krieger’s right to use and produce marihuana as an aspect of his security of the person under s.7 of the Canadian Charter of Rights and Freedoms have met with more success (see R. v. Krieger (2000), 225 D.L.R. (4th) 164, 2000 ABQB 1012, aff’d 2003 ABCA 85, leave to appeal refused, [2003] S.C.C.A. No. 114). More recently, Krieger tried to push the limits of the jurisprudence by claiming a Charter defence to charges of trafficking marihuana for medical purposes in circumstances where he was supplying others with the drug.

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An Important Development in the Kelly Appeal

Cases Considered: Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 410

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Last March I posted a blog about a Court of Appeal decision which granted a group of landowners (Kelly et al.) leave to appeal a decision of Alberta’s Energy and Utilities Board (now the Energy Resources Conservation Board). See “What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?”. The grounds for leave in the Kelly appeal indicated that the Court of Appeal might have to address novel and difficult questions in relation to the possible application of section 7 of the Charter in the context of oil and gas development in Alberta. A recent development in the case, however, leaves me wondering whether the merits of the appeal will ultimately be heard or not.

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Recent Developments in the Black Bear Crossing Dispute

Cases considered: Tsuu T’ina Nation v. Bearchief, 2008 CanLII 55966 (S.C.C.)
 

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As noted in my previous post on Tsuu T’ina Nation v. Bearchief, the Tsuu T’ina Nation was effectively prevented from enforcing an eviction notice against residents of Black Bear Crossing (BBC) whose band membership was disputed, until such time as the membership of the residents was resolved. The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied by Chief Justice Beverley McLachlin and Justices Morris Fish and Marshall Rothstein on October 30, 2008 (with costs against the Tsuu T’ina Nation).

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The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

Cases Considered: Victoria (City) v. Adams, 2008 BCSC 1363

PDF Version: The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

The recent decision of the B.C. Supreme Court finding municipal bylaws unconstitutional for prohibiting certain practices associated with homelessness in parks has received a great deal of media attention in Alberta and nationally. In Victoria (City) v. Adams, Justice Carol Ross considered bylaws in the City of Victoria that prohibit persons from “tak[ing] up temporary abode over night” and erecting or constructing “a tent, building, or structure, including a temporary structure” in city parks (Parks Regulation Bylaw No. 07-059, ss. 14(d) and 16(1)). Justice Ross found that these provisions violated the rights of homeless persons to life, liberty and security of the person under section 7 of the Charter, and that the violation was not in accordance with the principles of fundamental justice or a reasonable limit under section 1 of the Charter. This post will consider the implications of the case for Alberta, and in particular Calgary.

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Crown Discretion and the Power to Stay Proceedings

Cases Considered: R. v. Powder, 2008 ABQB 579; R. v. Powder, 2008 ABCA 568

PDF Version:  Crown Discretion and the Power to Stay Proceedings

In what circumstances can Crown prosecutors stay proceedings with impunity? This was the issue in a recent Alberta case, R. v. Powder, where the court seemed to disagree with the Crown’s actions but also seemed to feel powerless to respond. Given that the Crown may recommence proceedings it has stayed within one year of the stay, this case has implications for how the Crown can deal with a prosecution that has gone off the rails. The case is also of interest because it involves the use of tasers, a law enforcement tool that has come under much criticism lately.

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