Category Archives: Criminal

Impaired Driving and Approved Screening Devices

By: Shaun Fluker, Elliot Holzman, and Ian Pillai

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Case Commented On: Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46; Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

In October the Supreme Court of Canada issued two companion judgments concerning the constitutionality and meaning of the Automatic Roadside Prohibition (ARP) provisions set out in the Motor Vehicle Act, RSBC 1996, c 318. In Goodwin v British Columbia (Superintendent of Motor Vehicles) the Supreme Court upheld British Columbia’s ARP scheme as valid provincial law that does not unlawfully invade federal criminal law power or contravene section 11 of the Charter, but the Court also ruled that the seizure of a breath sample using an approved screening device (ASD) under the scheme as previously administered was an unreasonable seizure under section 8 of the Charter. In ruling as such, the Supreme Court upheld the ruling of the Chambers Justice who heard the matters back in 2010. Subsequent to that initial ruling the Province of British Columbia amended the ARP scheme in an attempt to remedy the unreasonable seizure, and the Supreme Court’s companion judgment in Wilson v British Columbia (Superintendent of Motor Vehicles) concerns the interpretation of these new provisions employing principles of statutory interpretation. In this comment we provide an overview of the ARP scheme and the issues raised by the use of ASDs in impaired driving cases, and bring this matter into an Alberta context. We also examine the Supreme Court’s constitutional analysis in Goodwin and its application of the principles of statutory interpretation in Wilson.

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When Judicial Decisions Go from Wrong to Wrongful – How Should the Legal System Respond?

By: Alice Woolley

PDF Version: When Judicial Decisions Go from Wrong to Wrongful – How Should the Legal System Respond?

Case Commented On: R v Wagar, 2015 ABCA 327 (CanLII)

Introduction

Judges make wrong decisions. As I discussed in a recent ABlawg post, errors in judicial decisions are to be expected given the human frailty of participants in the judicial system – the judges, the lawyers and the parties. But at some point can the quality of an error in a legal judgment change – can it go from wrong to wrongful? That is, at some point does the error go from being a product of the judge’s humanity to being a product of a moral or ethical failure? And if a judicial decision crosses that line, how ought the legal system to respond? In particular, how can it respond so as to respect judicial independence while also ensuring public confidence in the administration of justice?

In this blog I explore these questions through Judge Robin Camp’s decision and conduct in R v Wagar, a decision overturned by the Court of Appeal (R v Wagar 2015 ABCA 327 (Canlii) and summarized and commented on by my colleague Jennifer Koshan here. I argue that legal decisions go from being wrong to wrongful when they demonstrate both disrespect for the law and a failure of empathy in regards to the persons who appeared before the court. In my opinion, Judge Camp’s decision falls within this category; it demonstrates both disrespect for the law governing sexual assault and a pervasive inability to understand or even account for the perspective of the complainant.

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Judging Sexual Assault Cases Free of Myths and Stereotypes

By: Jennifer Koshan

PDF Version: Judging Sexual Assault Cases Free of Myths and Stereotypes

Case Commented On: R v Wagar, 2015 ABCA 327 (CanLII)

I am spending the fall term at the University of Kent’s Centre for Law, Gender and Sexuality, where I am working on a couple of projects related to the legal regulation of sexual assault. One of these projects has me immersed in the sexual assault laws of England and Wales, and in the course of doing some research in this area, I have learned that judges here routinely warn juries in sexual assault trials of the need to dispel any myths and stereotypes that they may bring in to the adjudication process. A recent judgment from the Alberta Court of Appeal in R v Wagar, 2015 ABCA 327 (CanLII), suggests that trial judges in Canada would do well to actively caution themselves in the same way. The trial decision of Judge Robin Camp in Wagar, overturned on appeal, is replete with sexual assault myths and stereotypes that influenced his decision to acquit the accused.

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Parole Ineligibility and the Double Edges of Consistency in Sentencing

By: Erin Sheley

PDF Version: Parole Ineligibility and the Double Edges of Consistency in Sentencing

Case Commented On: R v Ryan, 2015 ABCA 286

In R v Ryan the Alberta Court of Appeal clarifies how trial courts should apply some of the sentencing factors set out in sections 718-719 of the Criminal Code RSC 1985, c C-46 to the calculation of a period of parole ineligibility under section 745.4 for a person convicted of second degree murder. In that sense alone it has obvious pragmatic relevance for criminal practitioners and suggests answers to some interesting theoretical questions about the relationship between parole ineligibility and the denunciative function of a life sentence. Of potentially broader long-term significance, however, is the difference between the majority justices in this case. Madam Justice Ellen Picard reaffirms the status quo of broad judicial discretion in criminal sentencing. Though concurring in the result of allowing the Crown’s appeal in this case, Justice Wakeling writes separately to assert that the interests of rationality, predictability and consistency require appellate courts to construct an analytical framework that will encourage sentencing courts to adopt a common methodology for sentencing. The justices’ reasons trace lines of battle familiar to those who have watched the experiment with mandatory sentencing guidelines and its fallout in the United States. In the event that Ryan presages a sea change, practitioners should be aware of the analysis in both positions. But Canadian courts should be leery of starting down this fraught path.

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R v Porter: Self-incrimination – Judicial Restraint of State Coercion

By: Brett Code, Q.C.

PDF Version: R v Porter: Self-incrimination – Judicial Restraint of State Coercion

Case Commented On: R v Porter, 2015 ABCA 279

It should not have been necessary, because the applicable law on the matter has been settled since 1999, but for those police officers and prosecutors who might have forgotten, the Court of Appeal in R v Porter has once again forcefully stated that statutorily compelled statements are inadmissible in criminal trials because they violate the principle against self-incrimination and section 7 of the Canadian Charter of Rights and Freedoms. Insistent upon guarding against the admissibility of potentially unreliable confessions, against potential abuse of state power, and against the improper use by the Crown of otherwise properly-collected, statutorily required information, the Court confirmed the principle of fundamental justice that the state may not conscript the accused against himself or herself but must build any case to meet without compelled evidence from the suspect.

At issue was the use, if any, that could be made of information contained in compulsory accident reports made to police under section 71 of the Traffic Safety Act, RSA 2000, c T-6 (TSA) and in compulsory statements made to insurers for insurance purposes following an accident. The Court’s decisive conclusions were that:

such statements or the information contained in them are inadmissible in criminal proceedings arising out of a car accident; and
the information obtained through those statements cannot be used as part of the reasonable and probable grounds of an informant in an Information to Obtain a Search Warrant or Production Order.

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