By: Lisa A. Silver

PDF Version: Unpacking R v Barton

Case Commented On: R v Barton, 2017 ABCA 216 (CanLII)

 R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles. Continue reading →

By: Jennifer Koshan

PDF Version: Sexual Assault, Starting Points, and Court of Appeal Panel Composition: A Chilling Effect on Individualized Sentencing?

Case Commented On: R v Gashikanyi, 2017 ABCA 194 (CanLII)

On the first day of summer, the Alberta Court of Appeal released a decision that has turned up the heat on the approach to sentencing in this province. R v Gashikanyi, 2017 ABCA 194 (CanLII), was the hottest case on CanLII this past week, the Court of Appeal Decision of the Week in Eugene Meehan’s Supreme Advocacy newsletter, and the subject of several media stories (see e.g. Alberta Court of Appeal justice issues scathing critique of his own court; Judge slams Alberta Court of Appeal for potential appearance of bias; Alberta court of appeal judge calls for random assignment of judges to panels). Gashikanyi deals with the propriety of a starting point approach to sentencing, an approach that Justice Ronald Berger has previously critiqued and further critiques here, receiving some support from Justice Brian O’Ferrall. But Justice Berger did not stop there — he called into question whether Court of Appeal justices are bound by horizontal precedent (i.e. decisions of their own court), and criticized the way that Alberta judges are assigned to appellate hearings, suggesting a possible lack of impartiality that Justice O’Ferrall and Justice Patricia Rowbotham (dissenting) clearly distanced themselves from. The fact that this discussion took place in the context of a sentence appeal for sexual interference contributes to the heat caused by this decision in light of the intense public scrutiny surrounding sexual assault law recently.

In this post, I review the Court of Appeal’s approach to sentencing starting points generally and in the area of sexual offences as background to the decision in Gashikanyi. I also explore the ramifications of Justice Berger’s statements about horizontal precedent and appellate panel assignments, bringing into the discussion the recent calls for judicial education on sexual assault law and social context. Continue reading →