The Creation of Community “Space” in Sentencing in R v Saretzky

By: Lisa Silver

PDF Version: The Creation of Community “Space” in Sentencing in R v Saretzky

Case Commented On: R v Saretzky, 2017 ABQB 496 (CanLII)

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence. Continue reading →

R v Acera: Responding to the Call to Action in Jordan Via Detention Review Hearings

By: Amy Matychuk

PDF Version: R v Acera: Responding to the Call to Action in Jordan Via Detention Review Hearings

Case Commented On: R v Acera, 2017 ABQB 470 (CanLII)

In R v Acera, the Alberta Court of Queen’s Bench reviewed the detention of 34 accused persons in remand awaiting trial. Under s 525 of the Criminal Code, RSC 1985, c C-46, an accused detainee has the right to have their detention reviewed to determine whether they should be released pending trial when either 30 days (for a summary offence) or 90 days (for an indictable offence) have elapsed from the date they were taken into custody. The institution with custody of the accused must make a request on the accused’s behalf for a detention review hearing. At the hearing, the court shall assess the accused’s detention using the criteria in s 515(10) of the Code: whether detention is necessary to ensure the accused’s attendance in court, to protect the public, or to maintain confidence in the administration of justice. However, s 525 also provides an opportunity for a superior court to become involved in case planning to ensure matters reach trial without unreasonable delay, and that additional purpose was the focus of Justice J. B. Veit’s decision in Acera. Continue reading →

All the Pieces Matter: Organized Crime, Wiretaps and Section 8 of the Charter

By: Erin Sheley

PDF Version: All the Pieces Matter: Organized Crime, Wiretaps and Section 8 of the Charter

Case Commented On: R v Amer, 2017 ABQB 481 (CanLII)

Det. Freamon: “Non-pertinent”? How do you log that non-pertinent?

Det. Pryzbylewski: No drug talk.

Det. Freamon: They use codes that hide their pager and phone numbers. And when someone does use a phone, they don’t use names. And if someone does use a name, he’s reminded not to. All of that is valuable evidence.

Det. Pryzbylewski: Of what?

Det. Freamon: Conspiracy.

Det. Pryzbylewski: Conspiracy?

Det. Freamon: We’re building something here, detective. We’re building it from scratch. All the pieces matter.

—The Wire, Season One, Episode Six

This early scene in HBO’s The Wire, in which Detective Lester Freamon instructs his rookie colleague Ray Pryzbylewski on how to tag conversations they’ve overheard on their wiretap of Avon Barksdale’s Baltimore drug operation, dramatizes the strategy of long-term police investigations of organized criminal syndicates: “all the pieces matter.” Seemingly isolated conversations that, standing alone, reveal no evidence of criminal activity, become part of a general web of information which may eventually prove guilt beyond a reasonable doubt in a court of law. But this form of long-term wiretapping—implicating, as it does, a citizen’s right to security from unreasonable searches and seizures under section 8 of the Charter—often fits uneasily within the more exacting framework of constitutional case law. In R v Amer, the Alberta Court of Queen’s Bench had an opportunity to revisit the current state of the law on wiretaps in the wake of a spree of shootings that occurred in Calgary in the summer of 2015. Continue reading →

Landlords, Tenants, and Domestic Violence: Who is a “Tenant” under the Residential Tenancies Act?

By: Jonnette Watson Hamilton

PDF Version: Landlords, Tenants, and Domestic Violence: Who is a “Tenant” under the Residential Tenancies Act?

Report Commented On: Centre for Public Legal Education Alberta, Domestic Violence: Roles of Landlords and Property Managers, Final Report, March 2017

The report, Domestic Violence: Roles of Landlords and Property Managers, a research project for the Centre for Public Legal Education Alberta (CPLEA) under the lead of Professor Lois Gander, explores the role that landlords and their property managers can play in responding to domestic violence. Appendix F of the report identifies a number of legal issues that deter landlords and their agents from providing assistance because of the uncertainty in the law or the need for reform of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA). My colleague, Professor Jennifer Koshan, has already written about the privacy laws that stop landlords from getting help for victims of domestic violence in a preventative way: “Landlords, Tenants, and Domestic Violence: Clarifying Privacy Issues”. This post addresses the uncertainty that, perhaps surprisingly, surrounds the question of “Who is a tenant?” Who is a tenant is an important issue in the domestic violence context because it is tenants who have both rights — such as the right to gain access to the residential premises — and responsibilities — such as the duty to pay rent. A person needs the status of “tenant” under the RTA in order to have the rights and responsibilities set out in the RTA, which take precedence over anything set out in a written lease. Continue reading →

The Effect of Well Abandonment and Reclamation Obligations for the Valuation of Matrimonial Property

By: Nigel Bankes

PDF Version: The Effect of Well Abandonment and Reclamation Obligations for the Valuation of Matrimonial Property

Case Commented On: Walker v Walker, 2017 SKQB 195 (CanLII)

Judicial decisions on the legal nature of abandonment and reclamation obligations may arise in the strangest of ways. Take this matrimonial property case, for example, in which Mr. Walker (Darcy) was seeking to argue that his assets should be discounted on the basis that a small oil and gas company (Outback) that he controlled had net abandonment and reclamation liabilities. Part of the challenge that he faced in making this argument was of course that the liabilities in question were the liabilities of the corporation. While a director or controlling mind of a corporation might ordinarily take some comfort from this state of affairs, in this case counsel for Darcy tried to suggest that his client would inevitably face personal liability under the terms of Saskatchewan’s The Environmental Management and Protection Act, 2010, SS 2010, c E-10.22 [EMPA] and The Oil and Gas Conservation Act, RSS 1978, c O-2 [OGCA] and s 59 of The Oil and Gas Conservation Regulations, 2012, RRS c O-2 Reg 6 [OGCR]. Actually the argument was even stranger insofar as Mrs. Walker (Becky) was also a director of the company (Outback) and thus might face the same liability should Darcy be correct. Continue reading →