Category Archives: Provincial Court

The Saga of the Intoxication Defence Continues: Desjarlais and its Application to Uttering Threats

By: Dylan Finlay

PDF Version: The Saga of the Intoxication Defence Continues: Desjarlais and its Application to Uttering Threats

Case Commented On: R v Desjarlais, 2016 ABPC 182 (CanLII)

The defence of voluntary intoxication holds an awkward place in Canadian criminal law. Everyone who commits a crime must both do a guilty act (actus reus) and possess a guilty mind (mens rea) – even if that guilty mind is mere recklessness. But what if someone gets so drunk they commit a criminal act? What is the difference between someone who is sleepwalking and someone who is in a drunken stupor so severe they do not have the mental capacity comprehend their actions? Technically, neither hypothetical offender possesses a guilty mind.

True, voluntary intoxication is voluntary, sleepwalking is not. But legally, this distinction is irrelevant. The relevant mens rea is the mental state possessed at the time of the offence. Thus, public policy steps in. While sleepwalking is a defence to murder (see R v Parks, [1992] 2 SCR 871 (CanLII)), voluntary intoxication is not. However, the public policy argument against the intoxication defence does not strike such a chord if the offence becomes causing a disturbance.

Where does the law stand on the intoxication defence for uttering threats? (s. 264.1(1) of the Criminal Code). In July, Judge Allen of the Alberta Provincial Court in Edmonton produced a lengthy decision on this subject. The case is R v Desjarlais, 2016 ABPC 182 (CanLII). It involves a messy situation with multiple witnesses and plenty of credibility analysis; what is important for our purposes is that it involved a situation where the accused threatened to kill the complainant (para 88) while the accused was intoxicated to the point of being, in the words of different witnesses: “eight and one half to nine on a scale of ten,” or “temporarily insane” (para 97). Continue reading →

Statutory Interpretation and the Traffic Safety Act

By: Shaun Fluker

PDF Version: Statutory Interpretation and the Traffic Safety Act

Case Commented On: R v Kirollos, 2015 ABQB 474

Anyone who drives a vehicle in Alberta knows the law requires the vehicle be registered and insured. The two requirements effectively go hand-in-hand since obtaining a current registration at a registry office will require that you produce evidence of insurance coverage for the vehicle. The legal rules themselves are set out in the Traffic Safety Act, RSA 2000 c T-6 and if you fail to comply with these rules before a police officer you may find yourself in Traffic Court. R v Kirollos is decision by Madam Justice J.B. Veit concerning the appeal by Kirollos to the Court of Queen’s Bench of his conviction in Traffic Court on two counts: (1) failure to have insurance for his vehicle; and (2) failure to produce a certificate of registration for his vehicle. Justice Veit overturns the conviction of Kirollos on count #1 and she orders a new trial on count #2. This comment serves as a reminder on the importance of statutory interpretation in the law as I prepare to introduce the subject to a new class of law students next month.

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Provincial Court Small Claims Appeals: When is an appeal by way of trial de novo appropriate?

Cases Considered: Rezources Inc. v. Gift Lake Development Corp., 2008 ABQB 254

PDF Version:  Provincial Court Small Claims Appeals: When is an appeal by way of trial de novo appropriate? 

Section 51 of the Provincial Court Act, R.S.A. 2000 Ch. P-31, provides that an appeal of a Provincial Court decision is to be heard as an appeal on the record unless a party applies and the Court of Queen’s Bench orders that the appeal to be heard as a trial de novo. The default position is therefore an appeal on the record that was created at trial, usually a transcript of what was said and any exhibits that were entered.

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Provincial Court Judges’ Professional Allowances and Judicial Independence

Cases Considered: Reilly v The Chief Judge of the Provincial Court of Alberta, 2008 ABCA 72,

PDF Version: Provincial Court Judges’ Professional Allowances and Judicial Independence

Provincial Court Judge John Reilly requested the approval of the Chief Judge of the Provincial Court of Alberta to use his professional allowance to attend a conference in Caux, Switzerland. The Caux conference’s focus was “Peace – Building Initiatives” and would also be attended by an Elder and three Chiefs of the Stoney Reserve. Judge Reilly’s jurisdiction includes the Stoney Reserve and he has long been interested in the administration of justice to Aboriginal peoples and the Stoney Nation in particular. All of this he set out in his request to the Chief Judge, relying upon the professional allowance established through the Provincial Court Judges and Masters in Chambers Compensation Regulation, A.R. 176/98 (“Compensation Regulation”), which reads:

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The Shotgun Approach to Judicial Review

Cases Considered: Weir v. Canada (Registrar of Firearms), 2008 ABPC 18, Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19

PDF Version: The Shotgun Approach to Judicial Review

These two almost identical judgments of Provincial Court Judge Bruce R. Fraser confirmed refusals by the Registrar to issue registration certificates for prohibited weapons. They were both references made pursuant to section 74 of the Firearms Act, S.C. 1995, c. 39. The standard of the review to be conducted by a provincial court judge in such a reference has been a controversial matter. Various methods for selecting the appropriate standard of review in a section 74 reference have been proposed and implemented by Alberta courts. The jurisprudence thus far suggests this shotgun approach is missing the mark when it comes to standard of review.

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