ABLawg

By: Jennifer Koshan

PDF Version: While You Were Sleeping: Sexual Assault Involving Intoxicated or Unconscious Complainants

Case Commented On: R v Garrioch, 2015 ABCA 342

One of the contexts in which women are particularly susceptible to sexual assault is when they are intoxicated, asleep or unconscious. This context also creates challenges when it comes to assessing consent. Section 273.1(2)(b) of the Criminal Code specifically provides that no consent to sexual activity is obtained where “the complainant is incapable of consenting to the activity”, and this section has been interpreted to include circumstances where the complainant is unconscious or incapacitated by intoxication (see R v Esau, [1997] 2 SCR 777). Advance consent to sexual activity that takes place while the complainant is unconscious or asleep is also outside the scope of the consent provisions (see R v JA, [2011] 2 SCR 440; 2011 SCC 28 and see my post on that decision here). In addition, section 273.2 of the Criminal Code requires the accused to take reasonable steps to ascertain whether the complainant was consenting before he can raise the defence of a mistaken belief in consent. The difficult cases arise where the complainant’s intoxication is seen to fall short of producing incapacity to consent, but at the same time creates problems with her ability to recollect the incident in question. This type of scenario was at issue in a recent Alberta case, R v Garrioch, 2015 ABCA 342.

Everything Must Go!!!

By Theresa Yurkewich

On November 20, 2015

In Municipal Law

By: Theresa Yurkewich

PDF Version: Everything Must Go!!!

Case Commented On: Edmonton (City) v Peter, 2015 ABQB 635

It began with an ordinary accumulation of garbage bags. Next, a giant “Yard Sale” sign followed, made on cloth and propped up by the house. And in no time, the property located on Edmonton’s busy 113^th Street was increasingly riddled with a variety of materials from household goods, to cardboard and other debris, and, on occasion, even a spray-painted “Closed” sign. By June 2015, it appeared Mr. Peter was running a permanent yard sale, visible from the street and encompassing both his front and back yard; and frankly, the City of Edmonton – and likely Mr. Peter’s neighbors – had enough. This article examines the decision of Justice J.B. Veit in Edmonton (City) v Peter, 2015 ABQB 635.

Under Section 546(1)(c) of the Municipal Government Act, R.S.A. 2000, c. M-26, the City of Edmonton sought, and received, an order in June 2015 requiring Mr. Peter to removal all garbage bags, cardboard, loose litter, and debris from his property. Mr. Peter, however, appealed this order to the License and Community Standards and Appeal Board and continued to accumulate debris on his property. In fact, in his refusal to comply, Mr. Peter issued a “notice” to the City, objecting to the entrance of enforcement officers on his property without a warrant.

Protection for the Rights of Farm Workers Finally Proposed in Alberta

By Jennifer Koshan

On November 19, 2015

In Constitutional, Labour/Employment

By: Jennifer Koshan

PDF Version: Protection for the Rights of Farm Workers Finally Proposed in Alberta

Legislation Commented On: Bill 6, Enhanced Protection for Farm and Ranch Workers Act

On November 17, 2015 the Minister of Jobs, Skills, Training and Labour Lori Sigurdson introduced Bill 6 in the Alberta Legislature. She described the Enhanced Protection for Farm and Ranch Workers Act as an omnibus bill that:

proposes to amend workplace legislation so Alberta’s farm and ranch workers will enjoy the same basic rights and protections as workers in other industries. Proposed changes would remove the exemption of the farm and ranch industry from occupational health and safety, employment standards, and labour relations legislation. Bill 6 also proposes to make workers’ compensation insurance mandatory for all farm and ranch workers. If passed, Alberta would join every other jurisdiction in Canada in applying workplace legislation to Alberta’s farms and ranches. This is a historic day for Alberta (Hansard, November 17, 2015).

Is there Space for the Homeless in our City’s Parks? A Summary and Brief Commentary of Abbotsford (City) v Shantz

By Ola Malik

On November 17, 2015

In Constitutional, Municipal Law

By: Ola Malik and Megan Van Huizen

PDF Version: Is there Space for the Homeless in our City’s Parks? A Summary and Brief Commentary of Abbotsford (City) v Shantz

Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909

The recent B.C. decision of Abbotsford (City) v Shantz) highlights the central issue which seems to arise whenever there is a conflict over the management of public city space – who does this space “belong” to, and who gets to use it? When we answer that question, many of us would agree that this space belongs to those who live in our communities — parents with strollers, families on an outing, people walking their dogs or playing with their kids. When we think about who belongs in our community, how many of us include the homeless?

The homeless are often excluded from our conception of community. It is easy to ignore the issue of homelessness when it is hidden from view. But as soon as the homeless become visible in our parks and neighbourhoods they are seen as a nuisance requiring a solution. The well-known phrase, “you don’t have to go home, but you can’t stay here” aptly captures the dilemma the homeless face — and when you have no place to call home – where do you go?

Impaired Driving and Approved Screening Devices

By Shaun Fluker

On November 12, 2015

In Constitutional, Criminal, Statutory Interpretation, Supreme Court of Canada

By: Shaun Fluker, Elliot Holzman, and Ian Pillai

PDF Version: Impaired Driving and Approved Screening Devices

Case Commented On: Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46; Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

In October the Supreme Court of Canada issued two companion judgments concerning the constitutionality and meaning of the Automatic Roadside Prohibition (ARP) provisions set out in the Motor Vehicle Act, RSBC 1996, c 318. In Goodwin v British Columbia (Superintendent of Motor Vehicles) the Supreme Court upheld British Columbia’s ARP scheme as valid provincial law that does not unlawfully invade federal criminal law power or contravene section 11 of the Charter, but the Court also ruled that the seizure of a breath sample using an approved screening device (ASD) under the scheme as previously administered was an unreasonable seizure under section 8 of the Charter. In ruling as such, the Supreme Court upheld the ruling of the Chambers Justice who heard the matters back in 2010. Subsequent to that initial ruling the Province of British Columbia amended the ARP scheme in an attempt to remedy the unreasonable seizure, and the Supreme Court’s companion judgment in Wilson v British Columbia (Superintendent of Motor Vehicles) concerns the interpretation of these new provisions employing principles of statutory interpretation. In this comment we provide an overview of the ARP scheme and the issues raised by the use of ASDs in impaired driving cases, and bring this matter into an Alberta context. We also examine the Supreme Court’s constitutional analysis in Goodwin and its application of the principles of statutory interpretation in Wilson.