ABLawg

By: Joshua Sealy-Harrington and Evan Choate

PDF version: Throwing the Dog a Bone: A Historical and Policy Critique of the Supreme Court’s Bestiality Ruling

Case Commented On: R v DLW, 2016 SCC 22 (CanLII)

In R v DLW, 2016 SCC 22 the Supreme Court of Canada split on whether the criminal offence of bestiality requires “penetration.” The majority judgment held that bestiality requires penetration and, on that basis, held that a dog licking a vagina is not bestiality. In contrast, the dissenting judgment held that bestiality does not require penetration and, accordingly, held that a dog licking a vagina is bestiality. In this post, we first summarize the factual and legislative background in DLW and the reasons of the majority and dissenting judgments. Second, we critique the majority judgment for: (1) its unpersuasive reliance on judicial deference; and (2) its overstated claim that “buggery” (the precursor to bestiality) had a clear meaning. Lastly, we critique both the majority and dissenting judgments for their reliance on: (1) imprecise sexual terms which fail to bring clarity to bestiality law; and (2) an unimaginative privileging of cisgender, procreative heterosexuality that perpetuates harmfully conservative understandings of human sexuality.

The Deductibility of Legal Fees Incurred in Child Support Proceedings and Section 15 of the Charter

By Kyle Gardiner

On July 22, 2016

In Constitutional, Family, Supreme Court of Canada, Tax

By: Kyle Gardiner

PDF Version:The Deductibility of Legal Fees Incurred in Child Support Proceedings and Section 15 of the Charter

Case commented on: Grenon v. Canada, 2016 FCA 4 (CanLII), leave to appeal dismissed, 2016 CanLII 41074 (SCC)

On June 30^th, 2016, the Supreme Court of Canada denied leave to appeal in the case of Grenon v. Canada, 2016 FCA 4 (CanLII), which was heard in Calgary at both trial and on appeal. The Appellant Grenon was seeking to challenge certain aspects of tax law and policy under section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has only heard two previous challenges to tax law based on the equality rights guarantee in section 15 of the Charter. In Symes v. Canada, [1993] 4 SCR 695, 1993 CanLII 55, a challenge based on the inability to deduct childcare expenses as business expenses was unsuccessful. In Thibaudeau v. Canada, [1995] 2 SCR 627, 1995 CanLII 99, a provision requiring custodial parents to include child support payments in their income was also found not to violate section 15. It has been 21 years since the Supreme Court of Canada last heard an equality challenge to tax law. This post will focus on the missed opportunities resulting from the Supreme Court’s refusal to hear the Grenon appeal and some of the issues that have arisen in the past 20 years which it could have confronted.

Costs to the Respondent: Discouraging Habeas Corpus Applications

By Amy Matychuk

On July 19, 2016

In Access to Justice, Administrative Law, Costs, Vexatious Litigants

By: Amy Matychuk

PDF Version: Costs to the Respondent: Discouraging Habeas Corpus Applications

Case Commented On: Voisey v Canada (Attorney General), 2016 ABQB 316 (CanLII)

In Voisey v Canada (Attorney General), 2016 ABQB 316, Justice Crighton of the Alberta Court of Queen’s Bench rejected an application for habeas corpus and awarded $1000 in costs to the respondent. Mr. Voisey, a federal prison inmate, tested positive for drug use and was subsequently involuntarily transferred from a minimum to a medium security prison. He challenged the transfer based on several grounds, alleging it violated sections 1, 7, 12 and 15 of the Charter (at para 10), it was unreasonable because he was not violent, it was based on unproven suspicion, and he should have received the least restrictive measures possible (at para 20). The court found that all his claims were meritless, though it did acknowledge that a few of them met the minimum threshold of being “legitimate grounds” for claiming his reclassification was arbitrary. The court concluded, following Justice Shelley in Rain v Canada (Parole Board), 2015 ABQB 747 that the respondent “incurred significant expenditure for no valid purpose. That makes this a case where a substantial cost award is justified.” (at para 34) It awarded $1000 in costs against Mr. Voisey, to be paid in $5 increments out of his biweekly paycheques of $15, and the remainder to be payable immediately upon his release.

This case raises questions about the fairness and effectiveness of awarding costs against self-represented inmates on unsuccessful habeas corpus applications.

Will the Flurry of New Wind Energy Projects Face a Storm of Opposition?

By Jeremy Baretto

On July 18, 2016

In Administrative Law, Energy

By: Jeremy Barretto

PDF Version: Will the Flurry of New Wind Energy Projects Face a Storm of Opposition?

Decision Commented On: AUC Decision 3329-D01-2016, E.ON Climate & Renewables Canada Ltd., Applications for the Construction and Operation of the Grizzly Bear Creek Wind Power Project, May 19, 2016.

According to Alberta’s Climate Leadership Plan, renewable sources are expected to account for up to 30% of the province’s electricity generation by 2030—approximately triple today’s renewable generation. The provincial government is developing a competitive process to bring new renewable generation capacity to the grid, based on reports from an expert panel and the Alberta Electric System Operator. The first competition will be in Q4 2016.

As I’ve previously written, wind projects will likely obtain most government financial incentives, provided that such incentives are offered through a competitive auction for utility-scale renewable energy projects. That’s because upfront costs for wind energy projects are typically lower than other forms of renewable energy. The rapid development of wind energy in Ontario and recent Alberta decisions foreshadow potential vigorous opposition, and key process differences, for the anticipated flurry of new wind energy projects.

The Probative Value of Technological Evidence

By Lisa Silver

On July 15, 2016

In Criminal

By: Lisa Silver

PDF Version: The Probative Value of Technological Evidence

Case Commented On: R v Didechko, 2016 ABQB 376 (CanLII)

“After a while circumstantial evidence can be overwhelming!” remarked Mister Justice Germain in the recent Alberta Queen’s Bench decision, R v Didechko, (2016 ABQB 376, para 86). In this case, Justice Germain infers guilt on charges of failing to report an accident where death ensues pursuant to s. 252(1.3) and obstruct justice pursuant to s. 139(2) from the circumstantial technological evidence advanced by the Crown prosecutor. The use of such technological evidence, global positioning or GPS and telecommunications cell tower usage, is not unique. Rather what is singular is the evidential purpose for which it is proffered by the Crown as the only evidence available to establish the required factual connection between the accused and the crime. This case is a portent of the future as technological advancements make it possible, and necessary, to use such technological evidence for the investigation and successful prosecution of crime. Didechko is a persuasive example of a “smart” prosecution wherein the Crown utilizes all the evidentiary tools available to create a cohesive and, ultimately, unassailable prosecution. It is also a wake-up call for all those in the legal system to be mindful of the potential effects of technological advances in building a legally cogent case.