Category: Evidence Page 2 of 4

By: Drew Yewchuk

PDF Version: Litigation Privilege, the Adversarial System, and the Search for Truth

Case Commented On: Waissmann v Calgary (City), 2018 ABQB 131 (CanLII)

Waissmann v Calgary (City) is a decision about occurrence reports produced by a Calgary transit bus driver following an accident on July 30, 2007 in which Mr. Waissmann was injured. Mr. Waissmann is suing the city and was seeking to compel the city to produce the occurrence reports. The city asserted litigation privilege over the occurrence reports. Master Robertson agreed with the city and determined the occurrence reports were subject to privilege and need not be produced (at para 44).

Third-Party Constitutional Remedies to Unjust Law during Stays in Declarations of Invalidity

By Nicholas Konstantinov

On March 6, 2018

In Constitutional, Evidence

By: Nicholas Konstantinov

PDF Version: Third-Party Constitutional Remedies to Unjust Law during Stays in Declarations of Invalidity

Case Commented On: Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 (CanLII)

In Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 (CanLII), Justice W. P. Sullivan acknowledged that a third-party applicant may argue for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms against charges under section 88.1 of the Traffic Safety Act, RSA 2000, c T-6 [TSA], the administrative license suspension (“ALS”) regime. Despite the suspended declaration of section 88.1’s invalidity under section 52 of the Constitution Act, 1867, 30 & 31 Vict, c 3, an applicant may utilise the Court’s decision in Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 (CanLII) [Sahaluk I] (see here for a case commentary) as precedent for a constitutional exemption provided that he or she: 1) pled not guilty, 2) exhausted all statutory remedies, 3) demonstrated personal Charter right violations, and 4) passed the balance of convenience test.

Self-Incrimination Immunity and Professional Misconduct

By Nicholas Konstantinov

On March 2, 2018

In Administrative Law, Constitutional, Evidence

By: Nicholas Konstantinov

PDF Version: Self-Incrimination Immunity and Professional Misconduct

Case Commented On: Toy v Edmonton (Police Service), 2018 ABCA 37 (CanLII)

In Toy v Edmonton (Police Service), the Alberta Court of Appeal dismissed former Constable Elvin Toy’s appeal of a 2015 ruling that led to his discharge from the force. That year, the Law Enforcement Review Board upheld a Presiding Officer’s decision convicting Toy of deceit and misconduct in the course of fabricating evidence at an earlier proceeding. Toy argued that the Board failed to apply the appropriate standard of review to correct the Presiding Officer’s error in law, which resulted in admitting involuntary testimony that offended his privilege against self-incrimination.

So Help Me God: ALRI Recommends Changes to Make the Alberta Evidence Act More Inclusive

By Laura Buckingham

On February 8, 2018

In Evidence, Youth and the Law

By: Laura Buckingham

PDF Version: So Help Me God: ALRI Recommends Changes to Make the Alberta Evidence Act More Inclusive

Report Commented On: Alberta Law Reform Institute, Competence and Communication in the Alberta Evidence Act, Final Report 111

It might not be surprising that the first version of the Alberta Evidence Act, adopted in 1910, required judges to investigate the religious beliefs of certain witnesses. What is surprising is that more than a century later, these requirements are still in force in Alberta. Under Alberta law, children, adults with cognitive impairment, and anyone who wishes to make an affirmation instead of swearing an oath may be questioned about their religious beliefs before they are allowed to give evidence.

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.