ABLawg

By: Jennifer Koshan

PDF Version: Sexual Assault and Choking – Making Sense of the Legal Consequences

Case Commented On: R v White, 2016 ABQB 24

The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA, [2011] 2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.

Physician-Assisted Dying Once Again Before the Supreme Court: What Just Happened?

By Elliot Holzman

On January 29, 2016

In Constitutional, Remedies

By: Elliot Holzman

PDF Version: Physician-Assisted Dying Once Again Before the Supreme Court: What Just Happened?

Case Commented On: Carter v Canada (Attorney General), 2016 SCC 4

On February 6, 2015, the Supreme Court of Canada handed down its much-anticipated decision in Carter v Canada (Attorney General), 2015 SCC 5 (Carter I), a landmark ruling where the criminal prohibition on physician-assisted dying was declared unconstitutional. Professor Jennifer Koshan wrote here about Carter I. In that decision, the Court did not immediately invalidate the relevant sections of the Criminal Code, RSC 1985, c C-46, rather the declaration of invalidity was suspended by one year, set to expire on February 6, 2016. Since February 6, a confluence of factors, including: Parliament not acting with much hurry on crafting new legislation to respond to Carter I, a historically long federal election that resulted in a change of government, and the four-month dissolution of Parliament, resulted in the Court once again hearing oral arguments in the case – this time an application by the Attorney General of Canada to extend the suspension of invalidity by another 6 months (see Carter v Canada (Attorney General), 2016 SCC 4 (Carter II)).

In Carter II, the Court had to grapple with new issues since the Carter I decision – Quebec’s National Assembly enacted its own legislation permitting physician assisted suicide – and the Court heard oral arguments from the Attorney General of Quebec seeking an exemption from the proposed extension. The Court granted the Attorney General of Canada a four-month extension, Quebec was given the green light to implement its legislation, and in the four-month window, individual patients can apply to the courts for a constitutional exemption to the suspension of invalidity. This comment will first look at the remedy the Court crafted in Carter I, and then move on to its decision in Carter II.

Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

By Sarah Burton

On January 26, 2016

In Constitutional, Criminal

By: Sarah Burton

PDF Version: Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

Case Commented On: Barr v Alberta (Attorney General), 2016 ABQB 10

Last spring, I posted a comment flagging the constitutional concerns surrounding section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1, the province’s gang affiliation law (here). The provision authorizes police officers to remove or exclude anyone from a licenced premises based on their belief that the target of removal is connected, in varying degrees, to a gang (see section 69.1 here). Failing to comply with this direction is an offence punishable by a fine and/or a maximum of 6 months in prison (Gaming and Liquor Act, sections 116, 117; Barr v Alberta (Attorney General), 2016 ABQB 10 at para 3).

The gang affiliation law is meant to protect bar owners by diminishing gang presence in bars and de-incentivizing the lifestyle to potential recruits (Barr at para 6). Despite this laudable goal, the law raises several red flags under the Charter: it appears overbroad both in its sphere of application (it applies not only to bars, but all licenced premises) and targets for removal (including not only gang members, but persons who support or facilitate gangs, or persons in the company of any of those persons). It also appears to contravene the Charter’s guaranteed freedoms regarding peaceful assembly and association. I encourage readers interested in the provision to read my earlier post here.

News from the Canadian Law and Society Association

By Lyndsay Campbell

On January 25, 2016

In Conferences

By: Lyndsay Campbell

On January 16 & 17 the Canadian Law and Society Association (CLSA) held its midwinter meeting in Waterloo, Ontario. This small conference featured a variety of panels, on topics ranging from legal identities and legal pluralism to AirBnB and Uber, the duty to consult, aboriginal title, legal education, and the corporation.

The CLSA is currently gearing up for its main annual conference, to be held May 28-30 at the University of Calgary as part of the Congress of Social Sciences and Humanities 2016. Our meeting overlaps with that of the Canadian Association of Law Teachers (CALT, May 30-31) and, as well, a one-day interdisciplinary symposium on social justice (May 28) entitled “Building A2SJ: An Interdisciplinary Conversation about Problems and Solutions.” Our founding dean, John McLaren, has agreed to give a keynote address at the jointly held CLSA-CALT banquet on May 31. Calls for papers for the CLSA and CALT conferences are available here and here (note proposals are due January 31), and registration for Congress is now possible via the link here.

Canada-Iran Relations: Sanctions, Diplomatic Relations, Booby-Traps and the Law

By Michael Nesbitt

On January 22, 2016

In International Law, Terrorism and Security

By: Michael Nesbitt

PDF Version: Canada-Iran Relations: Sanctions, Diplomatic Relations, Booby-Traps and the Law

This week, it was reported that Canada’s Foreign Minister Stephane Dion and the Liberal government were considering lifting sanctions on Iran and re-establishing diplomatic relations between the two nations. The quandary here – to lift or not to lift, to engage or not to engage – has been foreseeable for some time: I wrote an op-ed in the Globe & Mail back in July warning the next government that they would have to be prepared to act, and act quickly, once the US lifted its sanctions on Iran (see here).

The repercussions of Canada’s delay for Canadian business are immense: Our companies do not want to be left behind as Iran’s enormous emerging market – 80 million people with a dilapidated infrastructure and close connection to a large Diaspora in Canada – begins to open up to the rest of the world. There is no such thing as a second-movers advantage.

But Canada’s business interests are not the only consideration here, even in our struggling economy; Canada’s national security regime is also implicated and the situation is both complicated and controversial.

Let’s start with a reminder of why Iran sanctions are now in the news before getting into the commentaries that have recently set off a debate in Canada.