ABLawg

The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

On May 25, 2017

By: Lisa Silver

PDF Version: The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Case Commented On: Alberta (Health Services) v Bhanji, 2017 ABCA 126 (CanLII)

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers. The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority.

Recent Developments in Domestic Violence Law and Policy in Alberta

By Jennifer Koshan

On May 24, 2017

In Family, Labour/Employment, Limitations, State Responses to Violence

By: Jennifer Koshan

PDF Version: Recent Developments in Domestic Violence Law and Policy in Alberta

Legislation and Report Commented On: Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence; Family Violence Death Review Committee Annual Report 2015-2016

Statistics Canada’s most recent report on family violence indicates that although the rate of family violence reported to the police was stable across the country overall from 2014 to 2015, Alberta experienced a 2% increase in the rate of family violence during this period (Family violence in Canada: A statistical profile, 2015 at 37). Shelters in Alberta also report an increase in the number of calls to their crisis lines and for shelter space since 2014. At the same time, results from Canada’s 2014 General Social Survey showed that 7/10 self-reported victims of spousal violence did not report the violence to police, often because they viewed the abuse as a “private matter” (Family violence in Canada: A statistical profile, 2014 at 10).

Within this context, two recent developments in Alberta merit discussion. Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, removes the limitation period that would otherwise restrict the time within which civil claims for damages can be commenced in domestic violence and sexual assault cases, and the Family Violence Death Review Committee’s 2015-2016 Annual Report makes several recommendations for changes to Alberta law and policy to better deal with family violence issues.

Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

By Amy Matychuk

On May 19, 2017

In Constitutional, Criminal, Evidence

By: Amy Matychuk

PDF Version: Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

Case Commented On: Ewanchuk v Canada (Parole Board), 2017 ABCA 145 (CanLII)

On May 16, 2017, the Alberta Court of Appeal (ABCA) released a decision dismissing a habeas corpus application with certiorari in aid from Stephen Brian Ewanchuk, who just this week was featured on ABlawg for being declared a vexatious litigant in the Alberta Court of Queen’s Bench (ABQB) on a different application for habeas corpus. As Jonnette Watson Hamilton noted in that post, this is the same Ewanchuk whose sexual assault conviction was the subject of an oft-cited Supreme Court decision. He is now 68 years old and since 2007 has been serving his fifth sentence for sexual assault, this time on a minor. In the current habeas corpus application at the ABCA, he challenged the Parole Board of Canada’s April 25, 2014 decision (and the subsequent Nov 12, 2015 ABQB decision) not to provide relief on his statutory release date, but instead to require him to serve out the remainder of his sentence. He will be released on February 21, 2018.

For Golfers: A Classic Bailment Case with an Exclusion Clause Issue

By Jonnette Watson Hamilton

On May 18, 2017

In Contracts, Property, Provincial Court

By: Jonnette Watson Hamilton

PDF Version: For Golfers: A Classic Bailment Case with an Exclusion Clause Issue

Case Commented On: Bloomer v Connaught Golf Club, 2017 ABPC 105 (CanLII)

Bailment is an interesting legal concept because it is ubiquitous and because it is at the overlap of contract, property and tort law and yet is its own distinct area of law. However, because the issue in Bloomer v Connaught Golf Club involved an exclusion clause, the exclusive focus of Judge Derek G. Redman’s decision was on contract law (rather than the far more fascinating property law). This case is also factually simple, but those facts might disturb some readers. The Connaught Golf Club — which Mr. Bloomer was a member of — had agreed to store Mr. Bloomer’s golf clubs for him but was unable to find his golf clubs when he came in to play his daily golf game with his wife on June 24, 2016. In other words, the case is about a pro shop in Medicine Hat that lost a club member’s golf bag and its contents.

Vexatious Habeas Corpus Applications Contribute to Delayed Access to the Courts

By Jonnette Watson Hamilton

On May 16, 2017

In Constitutional, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Vexatious Habeas Corpus Applications Contribute to Delayed Access to the Courts

Case Commented On: Ewanchuk v Canada (Attorney General), 2017 ABQB 237 (CanLII)

This vexatious litigant case is interesting for five reasons. First, it was tied to an application for habeas corpus and in the process of the decision we learn something about the Court of Queen’s Bench’s procedure for hearing such applications. Second, there is an emphasis on vexatious litigation’s cost to other litigants. Third, Justice D.R.G. Thomas’ order explicitly followed Hok v Alberta, 2016 ABQB 651 (CanLII) by making the vexatious litigant order under the court’s inherent jurisdiction, rather than under the Judicature Act. Fourth, this order also follows Hok in extending the protection of the order to the Provincial Court of Alberta but omitting the Alberta Court of Appeal from its scope. And finally, yes, the Stephen Brian Ewanchuk who is the applicant in this case is that Ewanchuk. He is the individual who was convicted of sexually assaulting a 17-year-old female by the Supreme Court of Canada in R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC), in a case made infamous by the exchange between Justice McClung of the Alberta Court of Appeal and Justice L’Heureux-Dubé of the Supreme Court of Canada – the “bonnet and crinolines” case. These days Ewanchuk is a prisoner at the Bowden Institution, serving a 16.5-year sentence for sexually assaulting an 8-9 year old female, his fifth conviction for sexual assault. His habeas corpus application essentially complained about the conditions of his detention at the Bowden Institution and some readers might experience schadenfreude in reading about his complaints (i.e. pleasure derived from the misfortune of others when the other person is perceived to deserve the misfortune, the misfortune is relatively minor, and we ourselves did not generate the other’s misfortune).