Category Archives: Evidence

Self-Incrimination Immunity and Professional Misconduct

By: Nicholas Konstantinov

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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.  Continue reading →

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

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. Continue reading →

Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

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. Continue reading →

Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

By: Erin Sheley

PDF Version: Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

Case Commented On: Regina v Sanaee, 2016 ABCA 289 (CanLII)

The year 2016 has been bleak for animals in Canada. In September, Montreal passed a new city bylaw banning the adoption of new pitbulls and pitbull mixes, and imposing stringent licensing and muzzling requirements on currently-owned dogs under threat of euthanasia. (See City of Montreal Regulation 16-060). And Parliament just voted down proposed amendments in Bill C-246, the Modernizing Animal Protections Act, which would have made modest changes to federal legislation such as banning the importation of shark fins removed from living sharks and products made from dog or cat fur. But on September 28, 2016 the Alberta Court of Appeal provided some good news for animal welfare supporters.

In R v Sanaee, 2016 ABCA 289 (CanLII), the Court of Appeal considered the appeal of a dog trainer convicted of two counts of causing unnecessary pain, suffering or injury to an animal, contrary to section 445.1(1)(a) of the Criminal Code, RSC 1985, c C-46. Continue reading →

Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

By: Lisa Silver

PDF Version: Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

Case Commented On: R v Villaroman, 2016 SCC 33 (CanLII)

My past two blog posts have a thematic connection and this post is no exception. I have modernity on the mind and so, apparently, do the courts. You may recall that theme in my discussion of the DLW decision (2016 SCC 22 (CanLII)) in which the Supreme Court of Canada, in the name of the “modern,” or the “modern approach” to be exact, entered into the time-honoured process of statutory interpretation only to come to the decision that the 2016 concept of bestiality under s 160 of the Criminal Code was no different than the common law concept of bestiality as subsumed into our codified criminal law in 1892. Justice Abella, hoping for a more modern approach, disagreed. Then, in my last blog post, I discussed the “smart” use of technological evidence to weave a persuasive narrative at trial. In the Didechko case (2016 ABQB 376 (CanLII)), the Crown relied, to great effect, on evidence emanating from the technological traces left by the accused to construct a case based on circumstantial evidence. Didechko serves as an exemplar of a thoroughly modern approach to another centuries-old process. Now, in this post, I will make another case for the modern as the Supreme Court of Canada in Villaroman (2016 SCC 33 (CanLII)) clarifies a very old rule on circumstantial evidence, one predating our Criminal Code, found in the English 1838 Hodge’s Case (168 ER 1136). Continue reading →