Category: Criminal Page 29 of 39

By: Admin

PDF Version: What does Fearn v Canada Customs add to OPCA jurisprudence?

Case commented on: Fearn v Canada Customs, 2014 ABQB 114 (CanLII)

The leading case on Organized Pseudolegal Commercial Argument (OPCA) litigation is the Alberta Court of Queen’s Bench decision of Justice John Rooke in Meads v Meads, 2013 ABQB 571 (CanLII) (summarized here). In Fearn v Canada Customs, Justice W A Tilleman very deliberately builds on Meads and develops the court’s responses to OPCA litigants in two ways. First, Fearn sets out guidelines for awarding costs against OPCA defendants in criminal proceedings, a context in which costs are very rarely awarded (at paras 113-139). Second, Fearn adds to what Meads had to say about when OPCA concepts and litigation strategies might amount to contempt of court, whether civil or criminal contempt (at paras 140-256). In this regard, Justice Tilleman identifies some OPCA strategies which, in and of themselves, are prima facie civil contempt. He also urges the use of criminal contempt prosecutions against some of the activities of OPCA “gurus”, i.e., those who sell instructional material and training in OPCA schemes.

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Drug Paraphernalia Bylaw Upheld as Constitutional

By Linda McKay-Panos

On March 21, 2014

In Constitutional, Criminal, Municipal Law

By: Linda McKay-Panos

PDF Version: Drug Paraphernalia Bylaw Upheld as Constitutional

Case commented on: Smith v St. Albert (City), 2014 ABCA 76

University of Calgary Constitutional law students will find this case interesting and perhaps will feel vindicated when they read this decision; it may also bring back memories of the midterm exam. In an earlier blog (see here) I discussed Justice Terry Clackson’s decision that portions of St. Albert’s Bylaw “restricting the sale and display of items associated with illicit drug consumption are unconstitutional, on the ground that they are, in pith and substance, criminal law and therefore outside the jurisdiction of the municipality” (para 1).

Celibate, Awake, and Alone: The Hallmarks of a Credible Sexual Assault Victim?

By Joshua Sealy-Harrington

On February 6, 2014

In Criminal, State Responses to Violence

By: Joshua Sealy-Harrington

PDF Version: Celibate, Awake, and Alone: The Hallmarks of a Credible Sexual Assault Victim?

Case commented on: R v FY, 2013 ABQB 694

This post discusses a recent decision from the Alberta Court of Queen’s Bench which acquitted the accused of an alleged sexual assault. In that decision, the court adopts a problematic approach to assessing consent which creates unrealistic standards that women must satisfy to maintain credibility in a sexual assault trial.

Supreme Court Denies Leave to Appeal in Marital Rape Sentencing Case

By Jennifer Koshan

On November 26, 2013

In Criminal, Supreme Court of Canada

PDF Version: Supreme Court Denies Leave to Appeal in Marital Rape Sentencing Case

Case commented on: R v QJK, 2013 ABCA 244; leave to appeal to SCC dismissed November 21, 2013

On November 21, 2013 the Supreme Court of Canada (McLachlin CJ, Cromwell J and Wagner J) dismissed a leave to appeal application by the defence for a sentence handed down by the Alberta Court of Appeal in R v QJK. The Supreme Court’s summary of the case frames the issue on which leave to appeal was sought as “Whether the Honourable Court of Appeal erred in not giving deference to the Learned Sentencing Judge as he did give proper weight to the gravity of the offense and properly considered the principles of denunciation and deterrence and imposed a fit sentence.” In a very brief Memorandum of Decision delivered from the bench, the Court of Appeal had increased the sentence imposed by the sentencing judge from 6 months to 20 months imprisonment. The Court of Appeal noted that the circumstances of the case – forced sexual intercourse by the accused on his spouse – amounted to a major sexual assault necessitating a 3 year starting point (2013 ABCA 244 at para 1). According to the Court of Appeal, the sentencing judge “overemphasized the mitigating circumstances and underappreciated the gravity of the offence as well as the need that the sentence reflect an appropriate degree of denunciation and deterrence” (at para 1).

Blind Justice? Accommodating Offenders with Disabilities

By Jennifer Koshan

On November 18, 2013

In Constitutional, Criminal, Human Rights

PDF Version: Blind Justice? Accommodating Offenders with Disabilities

Case commented on: R v Myette, 2013 ABCA 371

To what degree should courts accommodate the circumstances of persons with disabilities whose crimes attract jail sentences? The Alberta Court of Appeal recently divided on this issue in R v Myette, 2013 ABCA 371. At the original sentencing hearing, Judge Heather Lamoureux found that a jail sentence would be “unduly harsh” in light of Myette’s visual impairment, and ordered a suspended sentence of 18 months for sexual assault and common assault (2013 ABPC 89 at para 16). A majority of the Court of Appeal (Justices Constance Hunt and Jack Watson) found her approach to be erroneous, and substituted a sentence of 90 days in jail, to be served intermittently on weekends. Justice Peter Martin, writing in dissent, would have dismissed the Crown’s appeal. This post will review the various decisions in this case with a focus on whether sentencing decisions are the proper forum for accommodating the circumstances of offenders with disabilities.