Category Archives: State Responses to Violence

A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Cases Considered:  J.S. v. D.J.K., 2009 ABQB 426.

PDV Version: A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Justice Donald Lee is a prolific author of judgments posted to the Alberta Courts website, and one of the only Alberta judges to post decisions made under the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) (see my earlier post Family Violence Cases in Alberta: A Snapshot). In one of his recent decisions, Justice Lee helpfully clarifies the evidentiary requirements for hearings to confirm emergency protection orders made under the PAFVA.

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Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

Cases Considered: R. v. Warren, 2008 ABCA 436;
R. v. Schultz, 2008 ABQB 679;
R. v. Owusu, 2008 ABQB 715.

PDF Version: Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

The Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA“) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA‘s retroactive application was granted.

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Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

Cases considered: R. v. Jefferson, 2008 ABCA 365; R. v. C.H.L., 2008 ABCA 366.

PDF Version: Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

In two decisions released on back to back days in early November, the Alberta Court of Appeal grappled with the issue of sentencing in serious sexual assault cases. Both judgments were released as Memoranda of Decision, and neither is very helpful in providing guidance to lower court judges for sentencing in this area. The cases call into question the legitimacy of a Practice Note issued by the Court of Appeal to the effect that Memoranda of Decision have less weight than Reasons for Judgment Reserved in sentencing cases. Indeed, in one of the cases the judges themselves question this practice, yet effectively perpetuate it at the same time.

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Family Violence Cases in Alberta: A Snapshot

Cases Considered: M.E.B. v. C.W.M., 2008 ABQB 484; N.L.B. v. K.G.C., 2008 ABQB 485; R. v. M.S., 2008 ABQB 488; K.F. v. A.F., 2008 ABQB 496.

PDF Version: Family Violence Cases in Alberta: A Snapshot

In a one week period in August, four decisions concerning family violence were posted on the Alberta Courts website, all written by Justice Donald Lee of the Alberta Court of Queen’s Bench. This is certainly the highest number of cases posted in this area in one week since ABlawg began systematically reviewing Alberta court decisions in the fall of 2007. Three of the four decisions (M.E.B. v. C.W.M., 2008 ABQB 484; N.L.B. v. K.G.C., 2008 ABQB 485; and K.F. v. A.F., 2008 ABQB 496) arose under Alberta’s Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA), and the fourth dealt with a criminal matter (R. v. M.S., 2008 ABQB 488). This post will consider whether these cases, even though they are a very small sample, are representative of family violence matters coming before the Alberta courts. Statistics Canada undergoes a similar exercise each year when it gathers statistics on women’s shelters in a one day period as a snapshot of overall trends (see for example http://dsp-psd.pwgsc.gc.ca/collection_2007/statcan/85-002-X/85-002-XIE2007004.pdf).

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Infidelity Does Not Necessarily Amount to Provocation

Cases Considered: R. v. Tran, 2008 ABCA 209

PDF Version:  Infidelity Does Not Necessarily Amount to Provocation

Domestic violence remains a terrible problem in Canadian society, and Alberta has one of the highest rates in the country (Karen Mihorean, Family Violence in Canada: A Statistical Profile 2005 (Ottawa: Minister of Industry, 2005) at 15). Over the past 30 years, legislators, courts and law enforcement officers have generally progressed from treating such violence as a private matter, to confirming that it is as serious as other violence, and finally, to considering the family context as an aggravating circumstance. When domestic violence leads to death, however, perpetrators can argue a provocation defence just as they could in any murder trial. If successfully argued, provocation will reduce a charge of murder to manslaughter. In its recent decision in R. v. Tran, the Alberta Court of Appeal held that infidelity will not necessarily lead to a successful provocation defence in such cases.

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