ABLawg

By: Laura Buckingham

PDF Version: Property Division for Common-law Couples: The Problem, the Project, and the Proposals

Report Commented On: Alberta Law Reform Institute, Property Division: Common Law Couples and Adult Interdependent Partners, Report for Discussion 30

The Alberta Law Reform Institute (ALRI) is considering how to improve the law of property division for common-law partners. It recently published Property Division: Common Law Couples and Adult Interdependent Partners, Report for Discussion 30. The report reviews the issues with the existing law and makes preliminary recommendations for reform. ALRI is now seeking feedback on its preliminary recommendations, before it makes final recommendations to the government of Alberta.

Is Alberta Doing Enough to Protect Patients from Abuse by Health Professionals?

By Lorian Hardcastle

On October 25, 2017

In Health Law

By: Lorian Hardcastle

PDF Version: Is Alberta Doing Enough to Protect Patients from Abuse by Health Professionals?

Headlines such as “Grande Prairie doctor suspended, charged over inappropriate examinations”, “Disgraced Calgary psychiatrist Aubrey Levin facing new abuse allegations” and “Southern Alberta doctor accused of sex assault on disabled patient” are not isolated incidents. Despite limited data, one news report found that at least 250 Canadian doctors were disciplined by self-regulatory bodies for boundary offences between 2001 and 2016. The term “boundary offences” encompasses a wide range of conduct including sexual comments, inappropriate touching (often under the guise of a physical exam), taking photographs or videos without a patient’s knowledge, or sexual intercourse with a patient (without or with consent—if a patient can truly provide valid consent in this context). Although evidence on the prevalence of sexual misconduct by health professionals is limited, in a study of 10,000 US doctors, 9% reported sexual contact with patients. Ten of the 21 disciplinary decisions currently listed on the website of the Alberta College of Physicians and Surgeons relate to boundary offences. The harm resulting from sexual abuse by health professionals is substantial. Patients are often in a vulnerable position and, when a health professional exploits his or her position of trust and power, victims report feeling shame, confusion, anxiety, and depression. These cases not only damage the relationship between the victim and the perpetrator, but harm public trust in health professionals and self-regulation. In what follows, I recommend several reforms to better protect patients from abuse.

Proving Parties to an Offence Beyond a Reasonable Doubt: A Clear Application of Sections 21(1) and 21(2) of the Criminal Code

By Jeanine Zahara

On October 24, 2017

In Criminal

By: Jeanine Zahara

PDF Version: Proving Parties to an Offence Beyond a Reasonable Doubt: A Clear Application of Sections 21(1) and 21(2) of the Criminal Code

Case Commented On: R v Hardy, 2017 ABQB 588 (CanLII)

The Alberta Court of Queen’s Bench released a decision on 2 October 2017 which directly applied the law on parties to an offence to the evidence heard at trial. In R v Hardy, Tamra Hardy and her brother Cody Hardy were co-charged with manslaughter contrary to s 236(b) of the Criminal Code, RSC 1985, c C-46, break and enter with intent to commit an indictable offence contrary to s 348(1)(a) of the Criminal Code and robbery contrary to 344(1)(b) of the Criminal Code. Cody Hardy pled guilty to manslaughter prior to Tamra Hardy’s trial. Furthermore, while Tamra pled not guilty to the charge of break and enter with intent to commit theft, at the end of her trial she “invited a conviction on” s 348(1) (a) of the Criminal Code (at para 113) and a conviction was entered on that count She did dispute her criminal liability for the robbery and manslaughter, however, which turned on whether she was a party to these offences.

The Confidential Informant as a Creation of Law

By Lisa Silver

On October 23, 2017

In Criminal, Ethics and the Legal Profession

By: Lisa A. Silver

PDF Version: The Confidential Informant as a Creation of Law

Case Commented On: Her Majesty The Queen v Named Person A, 2017 ABQB 552 (CanLII)

We are all conversant with a creation story, be it biblical or cultural. We are less apt, however, to recite a purely legal creation story, where the law is not in itself created but creates. In the decision of Her Majesty The Queen v Named Person A, Madam Justice Antonio applies the law and in doing so creates a legally constructed status, as confidential informant, for Named Person A (NPA). The effect of the law or the privilege that arises, requires that NPA’s identity be strictly protected and non-disclosable, subject to the “innocence at stake” exception. This is a status which NPA neither wanted nor asked for. Once NPA became this pronounced creation of law, NPA became nameless. The discussion we will undertake will provide us with the ultimate creation story of how certain encounters can transform a person into a creation of law. With that transformation, comes the full force of the law as legal principles must be and are rigidly applied. The preliminary issue of whether NPA was, in law, a confidential informant is incredibly important. If NPA is not such an informant then the issues flowing from this status are moot. If, however, NPA is a confidential informant, then the court must decide how the Crown can fulfill its Stinchcombe obligations requiring full disclosure of NPA’s criminal file to NPA’s counsel without violating the sacrosanct confidential informant privilege. To disclose or even to edit the disclosure would reveal NPA’s identity. To not disclose would run afoul of NPA’s right to full answer and defence. Alternatively, if NPA’s defence counsel is within NPA’s confidential “circle of privilege”, then disclosure may be made within the safety of that legal privilege. This post considers the initial decision by Justice Antonio to find that, in law, NPA is a confidential informant. It is this finding which engages the law and which matters most to NPA.

A Closer Look at Leave to Appeal Requirements Under the Municipal Government Act (Alberta)

By Shaun Fluker

On October 19, 2017

In Administrative Law, Municipal Law

By: Shaun Fluker

PDF Version: A Closer Look at Leave to Appeal Requirements Under the Municipal Government Act (Alberta)

Case Commented On: Arctos & Bird Management Ltd v Banff (Town), 2017 ABCA 300 (CanLII)

This is a decision by Justice Barbara Veldhuis to deny the applicant leave to appeal an approval for development of lands in the Town of Banff. Statutory leave to appeal decisions such as this rarely attract legal commentary because no substantive law is decided. These decisions result from an application before a justice in chambers from a person who seeks permission to proceed with a substantive appeal of an administrative decision. Nonetheless, I have been studying these leave to appeal decisions to better understand the basis upon which superior courts decide whether to hear an appeal from an administrative decision. Arctos & Bird Management provides me with an opportunity to add to the findings Drew Yewchuk and I previously disseminated on ABlawg in “Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?” (“Seeking Leave”).