Category: Criminal Page 14 of 39

By: Alice Woolley

PDF Version: The Incarcerated Complainant: Submissions to the Minister of Justice

Matter Commented On: Investigation by Roberta Campbell of the Incarceration of the Complainant in R v Blanchard, 2016 ABQB 706 (CanLII)

On June 14, 2017, I sent the following letter to Alberta Justice Minister Kathleen Ganley, Chief Judge Terence Matchett of the Alberta Provincial Court and to the Law Society of Alberta. The letter concerns the conduct of Crown counsel, duty counsel and the judge in the preliminary inquiry into the matter of R v Blanchard, 2016 ABQB 706 (CanLII). It should be noted that the final assessment of the conduct of counsel and the judge in this matter depends on a full review and investigation by those parties; this letter comments only on the transcript and other written materials (as listed in the letter).

The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

By Lisa Silver

On May 25, 2017

In Criminal

By: Lisa Silver

PDF Version: The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Case Commented On: Alberta (Health Services) v Bhanji, 2017 ABCA 126 (CanLII)

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers. The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority.

Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

By Amy Matychuk

On May 19, 2017

In Constitutional, Criminal, Evidence

By: Amy Matychuk

PDF Version: Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

Case Commented On: Ewanchuk v Canada (Parole Board), 2017 ABCA 145 (CanLII)

On May 16, 2017, the Alberta Court of Appeal (ABCA) released a decision dismissing a habeas corpus application with certiorari in aid from Stephen Brian Ewanchuk, who just this week was featured on ABlawg for being declared a vexatious litigant in the Alberta Court of Queen’s Bench (ABQB) on a different application for habeas corpus. As Jonnette Watson Hamilton noted in that post, this is the same Ewanchuk whose sexual assault conviction was the subject of an oft-cited Supreme Court decision. He is now 68 years old and since 2007 has been serving his fifth sentence for sexual assault, this time on a minor. In the current habeas corpus application at the ABCA, he challenged the Parole Board of Canada’s April 25, 2014 decision (and the subsequent Nov 12, 2015 ABQB decision) not to provide relief on his statutory release date, but instead to require him to serve out the remainder of his sentence. He will be released on February 21, 2018.

Smoke and Mirrors? With Marihuana Legalization, Parliament Proposes to Drastically Expand Police Power

By Dylan Finlay

On April 21, 2017

In Constitutional, Criminal

By: Dylan Finlay

PDF Version: Smoke and Mirrors? With Marihuana Legalization, Parliament Proposes to Drastically Expand Police Power

Legislation Commented On: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, 1st Session, 42^nd Parliament, 2017

Parliament is toting marihuana legalization as a necessary public safety measure. With this sentiment, Parliament is revisiting not only drug-impaired driving laws, but also alcohol-impaired driving laws. Part 2 of Bill C-46 would, if passed, allow police officers to demand that a driver provide breath samples without any suspicion that the individual had been drinking. The relevant section is reproduced below:

Mandatory alcohol screening

320.27 (2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Parliament seeks the moral high ground in selling its proposed legislation to both the public and the judiciary. To the public, the Liberals hope to sway voters who find a ‘tough-on-crime’ agenda attractive – the same segment of the population that supports stiff mandatory minimum jail sentences. To be fair, as far as politics go, this strategy is sound; the segment of the population that supports legalization of marihuana because prohibition never made much sense to begin with will likely support the Bill no matter its complexities.

The judiciary will be harder to convince. Mandatory alcohol screening (as it is proposed by Bill C-46) violates ss 7 (the right to life, liberty and security of the person), 8 (the right against unreasonable search and seizure), 9 (the right not to be arbitrarily detained), and 10 (b) (the right to counsel on arrest or detention) of the Canadian Charter of the Rights and Freedoms (the Charter). Parliament must cast mandatory alcohol screening as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society to ‘save’ it under s 1 of the Charter.

The groundwork is being laid for such an argument. On CBC’s ‘The House,’ Justice Minister Wilson-Raybould stated: “I am confident [mandatory alcohol screening] will survive a constitutional challenge. It can be justified in terms of public safety, and safety on the roads, and preventing death” (April 13, 2017).

I do not share the Justice Minister’s confidence. Mandatory alcohol screening (as it is proposed) is a flagrant affront to Charter-values and Charter jurisprudence. The Supreme Court should not find such a law constitutional.

A constitutional battle lies ahead. This post will provide a summary of police procedure and the law as it relates to alcohol screening, present arguments for and against mandatory screening’s constitutionality, and ultimately conclude that mandatory alcohol screening is unconstitutional. For the purposes of this post, the focus will be on s 10(b) of the Charter, as this is the focus of the prevailing case law on alcohol screening generally.

Order In the Skyways: A Comment on the Regulation of Drones

By Lisa Silver

On March 22, 2017

In Criminal

By: Lisa Silver

PDF Version: Order In the Skyways: A Comment on the Regulation of Drones

Case Commented On: R v Shah, 2017 ABQB 144 (CanLII)

The increasing popularity of drones is attracting the attention of the regulatory process as municipalities, such as Calgary, attempt to control the use of drones in public areas through the bylaw process (see section 24(c) of the City of Calgary Parks and Pathways Bylaw 20M2003). In fact, the issue has become so pressing that the federal government recently announced immediate action through the Interim Order Respecting the Use of Model Aircraft by amending the Aeronautics Act RSC 1985, c. A-2 to more specifically address the “significant risk” the operation of drones have “to aviation safety or the safety of the public.” However, regulation in this nascent area of recreation has not been without difficulties. The extent to which the regulatory regime can effectively and fairly maintain order in the skyways may appear a simple task but as with any statutory process, “the proof is in the pudding” or as in the recent summary conviction appeal against conviction in R v Shah, 2017 ABQB 144 the “proof,” involving the appropriate application of the standard of proof, was lacking.

The Appellant in this case, ably represented both at trial and on appeal by our very own Student Legal Assistance, was flying a recreational remote controlled drone during the evening hours of January 16, 2016 when he was charged under section 602.45 of the Canadian Aviation Regulations SOR 96/433 enacted under the Aeronautics Act. The section states that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”