Category: Criminal Page 15 of 39

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.”

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By: Erin Sheley

PDF Version: Criminal Negligence and the Reasonable Parent

Case Commented on: R v Lovett, 2017 ABQB 46 (CanLII)

In R v Lovett the Alberta Court of Queen’s Bench added a new entry to the rapidly developing jurisprudence on criminal negligence. For much of the past 20 years, the SCC has grappled with articulating the appropriate mens rea standard required by Section 219 of the Criminal Code. Starting with R v Tutton, [1989] 1 SCR 1392 (CanLII), the Court has wavered a bit as to whether the Crown could prove that the accused committed an unlawful act or omission showing a “wanton or reckless disregard for the lives or safety of other persons” with regard to an objective standard (that of the “reasonable person”) or whether it must prove that the accused had subjective awareness of such a risk. As of 2008, with R v JF, (2008) SCC 60 (CanLII), the standard has ostensibly been settled as objective: criminal negligence requires only “a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk… or, alternatively, gave no thought to that risk” (JF, at para 9). Notably, this standard requires a higher deviation from the standard of care than that required in other objective fault offences: the departure must be marked and substantial as opposed to simply marked.

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By: Elliot Holzman 

PDF Version:  When the Courts Close One Door, They May Open Many More: Maintenance Logs and the Potential Implications of an Appeal in R v Vallentgoed

Case Commented On: R v Vallentgoed, 2016 ABCA 358 (CanLII)

Following the recent Alberta Court of Appeal decision in R. v. Vallentgoed, 2016 ABCA 358 (CanLII), it appears that Canada’s impaired driving laws may be before the Supreme Court of Canada (SCC) once again – this time, only four years removed from the last major case to be decided by the SCC in this area: see R. v. St-Onge Lamoureux, 2012 SCC 57, (CanLII).

Vallentgoed featured two separate cases that were tried together as “test” cases: both Mr. Vallentgoed and Mr. Gubbins were charged with impaired driving and requested various maintenance records as part of their disclosure requests from the Crown. The question before the Court on both appeals pertained to the Crown disclosure obligations of certain maintenance records for the breathalyzer instruments (also called “approved instruments”) used every day in impaired driving investigations across the country.

In a split 2-1 decision, with Justice Rowbotham dissenting, the Court of Appeal held that while time-of-test records of the approved instruments are clearly relevant and must be disclosed to an accused person, historical maintenance records of the instruments are not subject to the same disclosure obligations. Justice Rowbotham found that an instrument’s maintenance log (which is a summary of all the work/repairs done on an instrument since it was brought into use) constitutes first party disclosure and must be disclosed as part of the standard disclosure package sent by the Crown. The majority (Justices Slatter and Berger) held it was third party disclosure, and not subject to the Crown’s Stinchcombe disclosure obligations (see R. v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)). As the Court of Appeal was split in its decision, there will be an appeal as of right to the SCC, should the appellant wish to exercise that right.

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