How to Interpret a Will, or “Motorcycles make a House a Home”

By: Jonnette Watson Hamilton

PDF Version: How to Interpret a Will, or “Motorcycles make a House a Home”

Case Commented On: Hicklin Estate v Hicklin, 2019 ABCA 136 (CanLII)

Hicklin Estate is a judgment interpreting one word in a will – the word “home.” It is also a judgment with 138 paragraphs and 90 footnotes saying, in the end, that the chambers judge committed no palpable or overriding error in using extrinsic evidence to broadly interpret “home” to include the contents of the house and the garage. Not only was the sole issue a relatively narrow one, but the applicable law appears to be uncontroversial. It does not seem to be a case that calls for any more elaboration of the law than that given it by the lower courtin what the Court of Appeal called a “careful review” of the jurisprudence (at para 40). Nevertheless, lawyers seem to love this lengthy Court of Appeal judgment, applauding its “interesting hypotheticals (which heavily feature vintage Rolls-Royce automobiles)” and calling it a “delight to read, for it is an erudite and learned disquisition” and “a model of stylistic clarity.” However, the stylistic clarity seems to have distracted readers’ attention from problems with the substance of the judgment. Continue reading →

Taking Youth Seriously: Reconsidering the Constitutionality of the Voting Age

By: Colin Feasby

PDF Version: Taking Youth Seriously: Reconsidering the Constitutionality of the Voting Age

Case Commented On: Frank v Canada (Attorney General), 2019 SCC 1

[N]o one is born a good citizen; no nation is born a democracy. Rather, both are processes that continue to evolve over a lifetime. Young people must be included from birth. A society that cuts itself off from its youth severs its lifeline… (Kofi Annan, 1998)

Introduction

Earlier this year the Supreme Court of Canada issued its most important voting rights case in many years, Frank v Canada (Attorney General), 2019 SCC 1. Frank secured the right to vote for expatriate Canadians – a meaningful achievement – but the case is more significant for its reasoning and implications for the future of voting rights than it is for its result. The majority in Frank made it clear that the right to vote is qualified only by citizenship and that any limits on the right to vote must be justified under s 1 of the Charter. Frank has laid the foundation for a challenge to the last significant restriction on the right to vote, age. A challenge to the voting age – even just to lower it to 16 – promises to have a profound and beneficial impact on Canadian politics and political discourse. Continue reading →

Gross Overriding Royalty Payable on 100% of Production

By: Nigel Bankes

PDF Version: Gross Overriding Royalty Payable on 100% of Production

Case Commented On: Obsidian Energy Partnership v Grizzly Resources Ltd, 2019 ABQB 406

In this decision, Master J.T. Prowse granted summary judgment in favour of Obsidian (formerly Penn West Petroleum) against Grizzly Resources, concluding that Obsidian’s gross overriding royalty interest (GORR) of 2.75% was payable on 100% of production from the encumbered properties rather than on Grizzly’s working interest in the properties. Continue reading →

Alberta Court of Appeal Broadens the Scope of Offences for Conditional Discharges

By: Serena Eshaghurshan

PDF Version: Alberta Court of Appeal Broadens the Scope of Offences for Conditional Discharges

Case Commented On: R v Chowdhury, 2019 ABCA 205

In May 2019, the Alberta Court of Appeal (ABCA) heard an appeal for a dangerous driving causing bodily harm case. The appellant, Mr. Chowdhury, sought a conditional discharge, but the sentencing Judge refused to grant one. Mr. Chowdhury appealed his sentence and was surprisingly granted a conditional discharge, the first of its kind for this offence. Continue reading →

Alberta Court of Appeal Stages a Judicial Intervention on Judicial Interventions

By: Scott Carrière

PDF Version: Alberta Court of Appeal Stages a Judicial Intervention on Judicial Interventions

Case Commented On: R v Quintero-Gelvez, 2019 ABCA 17

In January, the Alberta Court of Appeal (the Court) allowed an appeal from a sexual assault conviction in R v Quintero-Gelvez, involving an issue of judicial intervention. The matter before the Court was whether repeated comments and interventions by the trial judge inhibited defence counsel from cross-examining the complainant as he was entitled, preventing the accused from making full answer and defence. The Court, in ordering a new trial, declined to take up the question of bias but agreed trial fairness was compromised. Continue reading →