ABLawg

Unpacking R v Barton

On July 27, 2017

By: Lisa A. Silver

Case Commented On: R v Barton, 2017 ABCA 216 (CanLII)

R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles.

CRILF Reviews Federal Divorce Data for Alberta

By John-Paul Boyd

On July 26, 2017

In Family

By: John-Paul Boyd

PDF Version: CRILF Reviews Federal Divorce Data for Alberta

Report Commented On: Analysis of Data from the Federal Justice Divorce File Review Study: Report on Findings for Alberta, 2011

The Department of Justice undertook the Federal Justice Divorce File Review Study in 2003, a project which wound up gathering enormous amounts of information about families going through divorce from courts across Canada. Three waves of data were collected, in 2005, 2008 and 2011. In 2015, the Canadian Research Institute for Law and the Family (CRILF) was granted access to the third tranche of data collected from the Calgary registry of the Alberta Court of Queen’s Bench.

The Institute has now released its report on that data, focusing on the timelines between separation and key events in the divorce process, parenting orders and child support orders, and analyzing the data by gender and the mention of family violence. Although the Institute’s findings are interesting, the data collected are not representative of divorce files in Canada, nor of divorce files in Alberta, for two main reasons. First, it appears that many of the 328 court files reviewed for the Study were uncontested desk order divorce applications; 75.9% of cases only had one order in the court file and 95.7% of those orders were final orders. Second, the coders who gathered the data were instructed to ensure that every third or fourth file they reviewed was “thicker,” thus oversampling files expected to have a higher degree of complexity.

“Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

By Amy Matychuk

On July 24, 2017

In Constitutional, Criminal

By: Amy Matychuk

PDF Version: “Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

Case Commented On: McCargar v Canada, 2017 ABQB 416 (CanLII)

On May 5, 2017, Mr. McCargar, currently a federal prison inmate, filed a joint habeas corpus application in the Court of Queen’s Bench on behalf of himself and three other inmates. Habeas corpus is a constitutional and common law remedy for unlawful detention; however, it is usually invoked as an individual remedy because it assesses individual circumstances, so a joint application is unorthodox. Mr. McCargar also undertook to represent his fellow inmates (at their request) in court on the joint application. Justice John T. Henderson quickly disabused Mr. McCargar of the notion that he could act in the role of a lawyer, and in his judgment, described the narrow circumstances in which joint habeas corpus applications are appropriate, clarified the kinds of state treatment that merit the remedy of habeas corpus at all, declined to take jurisdiction of the application, and proposed new restrictions on habeas corpus hearings. He also ordered $1000 in costs against Mr. McCargar, found Mr. McCargar in prima facie contempt of court, and restricted his court filing activities pending a hearing on whether he should be declared a vexatious litigant.

Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers

By Jennifer Koshan

On July 20, 2017

In Labour/Employment

By: Jennifer Koshan

PDF Version: Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers

Matter Commented On: Report to the Minister of Justice and Solicitor General of a Public Fatality Inquiry into the Death of Stephen Murray Gibson

On June 29, 2017 the Alberta government released the report of Judge Anne Brown concerning a Public Fatality Inquiry held into the death of Stephen Murray Gibson. Gibson was a farm worker who was killed in 2014 when his clothing became caught in an auger’s unshielded power take off (PTO), and he was pulled into the equipment and instantly killed. Gibson worked for Hamilton Farms, a husband and wife cattle, grain and hay operation, and he had not had a day off in four weeks, “as it was a very busy time of year, with winter feeding and calving” (at para 4). Judge Brown’s report recognizes that “Farming is hard and hazardous work”, and notes that the Enhanced Protection for Farm and Ranch Workers Act – which I have written about on ABlawg previously (see here, here and here) – extended the protection of the Occupational Health and Safety Act, RSA 2000, c O-2 and the Workers Compensation Act, RSA 2000, c W-15 to farm and ranch workers who are paid non-family members (at paras 9 and 11). What the report does not address, because it was written on May 8, 2017, is the fact that Bill 17, the Fair and Family-friendly Workplaces Act introduced by the government on May 24, 2017, exempts farm and ranch workers from protections regarding hours of work and time off in the Employment Standards Code, RSA 2000, c E-9 (see section 4 of Bill 17, adding the new section 2.1 to the Employment Standards Code, which will come into effect on January 1, 2018).

The Impact of a Dower Act Life Estate on the Valuation and Distribution of Intestate Estates

By Jonnette Watson Hamilton

On July 18, 2017

In Property, Wills and Estates

By: Jonnette Watson Hamilton

PDF Version: The Impact of a Dower Act Life Estate on the Valuation and Distribution of Intestate Estates

Case Commented On: Estate of Johnson, Rick Allen (Re), 2017 ABQB 399 (CanLII)

The deceased, Rick Allen Johnson, died intestate–i.e., without a will–in February 2013. He was survived by a spouse and by two children of a previous marriage. The years of aggravation, frustration, hostilities and legal fees that is foretold by those two short sentences will be obvious to the many individuals who have found themselves in a similar situation. The particular issue in this case was how much of the deceased’s property his children inherited, if any, given the life estate in the deceased’s house granted to his surviving spouse by the Dower Act, RSA 2000, c D-15, and the preferential share of an intestate estate given to the surviving spouse by the Wills and Succession Act, SA 2010, c W-12.2. Specifically, the question was: Should the present value of the wife’s Dower Act life estate be deducted from the value of the deceased’s house for the purpose of distributing his estate between his surviving spouse and his children? Justice John W. Hopkins answered that question with a “no”, holding that the value of the deceased’s house for the purposes of the distribution of his estate under the Wills and Succession Act was the full value of the house, with no deduction for the life estate. I think his answer is wrong.