ABLawg

By: Drew Yewchuk

PDF Version: Five Million Dollars Versus One Night in Jail

Case Commented On: R v Peers, 2015 ABQB 129 (CanLII), R v Peers, 2015 ABCA 407 (CanLII), leave to appeal granted May 26, 2016

On May 26, 2016 the Supreme Court of Canada (SCC) granted leave to appeal from the decision of the Alberta Court of Appeal in Peers. The three appellants are all charged with a variety of offences under section194 of the Securities Act, RSA 2000, c S-4, which provides for a maximum penalty of “a fine of not more than $5 000 000 or to imprisonment for a term of not more than 5 years less a day, or to both”. The basis of their appeal is that section11(f) of the Canadian Charter of Rights and Freedoms — which guarantees “the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment” — entitles them to a jury trial, because a penalty of five years less a day of imprisonment and a $5 000 000 fine is “a more severe punishment” than “imprisonment for five years”. This appeal raises a constitutional question left open 27 years ago in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 (CanLII) (Irwin Toy): can some personal economic rights be protected by the section7 Charter guarantee of “life, liberty, and security of the person?”

Balancing Freedom of Expression and the Privacy of Child Victims

By Hasna Shireen

On May 31, 2016

In Privacy, Youth and the Law

By: Hasna Shireen

PDF Version: Balancing Freedom of Expression and the Privacy of Child Victims

Case Commented On: R v Canadian Broadcasting Corporation, 2016 ABQB 204 (CanLII)

The Court in R v Canadian Broadcasting Corporation allows the Canadian Broadcasting Corporation (CBC) to maintain pre-publication ban articles on the web, thus allowing access to the identity of a deceased child victim. One of the major purposes of a publication ban is to protect a child victim’s privacy and thereby ensure future victims will come forward with the assurance of anonymity. This case demonstrates that freedom of expression of the media can take priority over a victim’s privacy rights. The case also demonstrates the lack of policy and legal authority dealing with web-based material, the transmission of information, victim’s privacy, and publication bans.

Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

By Joshua Sealy-Harrington

On May 27, 2016

In Criminal, Supreme Court of Canada

By: Joshua Sealy-Harrington and Joe McGrade

PDF Version: Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

Cases Commented On: R v Lacasse, 2015 SCC 64; R v Sargent, 2016 ABCA 104

Constantly drinking and drive. Hit the powder then watch this flame that arrive in his eye. […] I live inside the belly of the rough Compton, USA. Made me an angel on angel dust.

–good kid m.A.A.d. city (Kendrick Lamar, 2012)

Despite the Supreme Court’s recent consideration of the law governing sentencing appeals, such appeals remain a controversial area of legal analysis for our appellate courts. This persisting ambiguity, which is rooted in how the law is applied, rather than the law itself, motivates us to revisit the Court’s leading decision in R v Lacasse. This comment summarizes the majority and dissenting judgments in Lacasse, notes the ambiguity left by the disagreement between those judgments, outlines a recent Alberta Court of Appeal decision – R v Sargent, 2016 ABCA 104 – which demonstrates that ambiguity, and discusses the significant policy consequences associated with the Supreme Court’s unanimous holding that it is appropriate to more severely punish individuals with sympathetic mitigating factors (good kids) when they reside in communities with high crime rates (mad cities).

A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

By Jennifer Koshan

On May 26, 2016

In Constitutional, Health Law

By: Jennifer Koshan

PDF Version: A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Case and Legislation Commented On: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII); Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 42nd Parliament, 1st Session (as amended by the Standing Committee on Justice and Human Rights)

Anyone not familiar with the controversy surrounding assisted death got a taste of it last week during the debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), which culminated in Elbowgate in the House of Commons. Also last week, in the first appellate decision to consider assisted dying post-Carter, the Alberta Court of Appeal weighed in on the criteria for constitutional exemptions during the suspension of the declaration of invalidity of the criminal provisions which prohibit assisted death (see Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter 2015) and Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter 2016); and for posts on those decisions see here and here). The Court of Appeal’s decision in Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII), highlights the lack of congruence between what Carter 2015 constitutionally required and what the government has, so far, delivered in Bill C-14, particularly when it comes to whether a person seeking medical assistance in dying must have an illness that is “terminal”. E.F. also comments on the appropriate role of the Attorney General of Canada in applications seeking judicial authorization of the constitutional exemption allowing assisted dying in certain circumstances during the suspended declaration of invalidity.

BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies to Universities

By Linda McKay-Panos

On May 25, 2016

In Constitutional

By: Linda McKay-Panos

PDF Version: BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies To Universities

Case Commented On: BC Civil Liberties Association v University of Victoria, 2016 BCCA 162 (CanLII)

There are a number of ABlawg posts dealing with the issue of whether the Canadian Charter of Rights and Freedoms (Charter) applies to universities (see: Face-ing the Charter’s Application on University Campuses; University Campus is not Charter-Free; Freedom of Expression, Universities and Anti-Choice Protests). Many of these decisions involve freedom of expression, which is considered to be a very important element of university life (e.g., for academic freedom, free discussion and debate of ideas). Recently, I posted about a case involving the University of Victoria (see Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case) in which the British Columbia Supreme Court did not follow the judgment of Alberta Court of Appeal Justice Paperny in Pridgen v University of Calgary, 2012 ABCA 139. Although the case law synthesized by Justice Paperny was not determinative in Pridgen, her judgment provides an excellent, logical synthesis of how the precedents on the application of the Charter should be applied in various contexts, including universities. This post discusses the BCCA decision on the University of Victoria case.