Category Archives: Criminal

Drug Paraphernalia Bylaw Upheld as Constitutional

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).

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

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. Continue reading →

Supreme Court Denies Leave to Appeal in Marital Rape Sentencing Case

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).

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Blind Justice? Accommodating Offenders with Disabilities

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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.

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Prosecutorial Discretion and Solicitor-Client Costs

PDF Version: Prosecutorial Discretion and Solicitor-Client Costs

Case commented on: R v Leonard, 2013 ABQB 531

In R v Leonard, 2013 ABQB 531, Justice Thomas awarded solicitor-client costs against the Crown on the basis that the Crown continued with the prosecution of Leonard after the point where it “should have realized it had no realistic basis to continue” (at para 97).  He did so after rejecting an application by the Crown that he should recuse himself.  The Crown had argued for recusal because Justice Thomas had tried the underlying criminal case and, in the course of doing so, had reserved jurisdiction to award costs, had suggested that the Crown’s conduct warranted review by the Minister of Justice and Solicitor General of Alberta, and had emphasized the weakness of the Crown’s case.

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