From Legare to Morelli: the prioritization of privacy

Cases considered: R. v. Legare, 2009 SCC 56; R. v. Morelli, 2010 SCC 8

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A few months ago, the Supreme Court of Canada ordered the retrial of an Alberta man acquitted on the criminal offence of luring a child contrary to s.172.1(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 in R. v. Legare, 2009 SCC 56. Writing for a unanimous Court, Justice Morris Fish rejected the trial judge’s unduly restrictive construction of the offence. Instead, the offence was classified as “inchoate” (at para. 25), making it unnecessary to recast the elements into the traditional compartments of mens rea and actus reus. The Court held that the offence of luring requires proof that the accused had the subjective intention to facilitate (not to commit) a secondary offence and that intention need not be objectively capable of facilitating the offence. The judgment gave teeth to the remedial provision designed to combat the risks of sexual exploitation of children through the Internet. Engaging in two sexually explicit chats with a 12 year old girl may be enough to establish that the accused communicated by computer for the purpose of facilitating sexual touching.

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Court Addresses the Duty of a University to Assist a Professor who was Seeking Information Related to his Teaching

Case considered: University of Alberta v. Alberta (Information and Privacy Commissioner), 2010 ABQB 89

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In Alberta, universities are subject to the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 (“FOIPA“). University of Alberta professor Dr. Mikhail Kovalyov applied to the University for access to two kinds of records (but only the first kind of record was the subject of the court case). His original access to information request asked for information pertaining to his proposal for changes to a math course provided to the Chair and Associate Chair of the Mathematical and Statistical Sciences Department (“Math Department”); in particular, he asked for “written complaints, notes of oral complaints and any and all other documentation including any email between the Chair and Associate Chair or anyone else pertaining to this matter” (at para. 2). The University asked for clarification of the request, and Dr. Kovalyov replied with additional information, including a CD containing an audio-recording of a conversation between unidentified individuals discussing the math course and related complaints. The University wrote to Dr. Kovalyov, replying that it understood that Dr. Kovalyov was also requesting the documents the Chair referred to at the end of the audio-record, as well as all other documents, emails, notes, phone records pertaining to any information related to it, including information about the identification of the person from the very top of the University that the Chair referred to in the recorded conversation. Dr. Kovalyov did not reply to the University’s clarification letter.

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Cost Decision in the Human Rights Case of Lund v. Boissoin

Case considered: Boissoin v. Lund, 2010 ABQB 123

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There are several ABlawg posts written about the human rights case involving Dr. Darren Lund’s complaint to the Alberta Human Rights Commission (see here). The case concerned the publication in the Red Deer Advocate of a letter to the editor written by Stephen Boissoin, which Dr. Lund alleged violated s.3 of Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (“HRCMA“, recently re-enacted as the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 (“AHRA“)). Justice Earl Wilson recently issued a Memorandum of Decision on the issue of costs.

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Reflecting on the Supreme Court’s Reassertion of Judicial Control Over Lawyer Withdrawal and Its (Non) Impact on the “Perjury Trilemma”

Cases Considered: R. v. Cunningham, 2010 SCC 10; R. v. White, 2010 ABCA 66

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In its March 26, 2010 decision in R. v. Cunningham, 2010 SCC 10, the Supreme Court of Canada rejected the position of the Yukon Territory Court of Appeal that courts have no jurisdiction to prevent counsel from withdrawing from a scheduled criminal proceeding, even if the withdrawal is only for non-payment of fees (Cunningham v. Lilles, 2008 YKCA 7). The Supreme Court affirmed the position taken by most other provincial courts of appeal, that both superior and statutory courts may require that counsel apply for leave when seeking to withdraw from scheduled criminal proceedings, and that in exceptional circumstances the application to withdraw may be denied (See R. v. C (D.D.) (1996), 110 C.C.C. (3d) 323 (ABCA); R. v. Deschamps, 2003 MBCA 116); Bernier v. 9007-1474 Québec Inc., [2001] J.Q. No. 2631 (Que. CA); Mireau v. Canada (1995), 128 Sask. R. 142 (C.A.); R. v. Brundia, 2007 ONCA 725; Contra see Re Leask and Cronin (1985), 18 C.C.C. (3d) 315 (BCSC)).

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Locating Road Boundaries under the Doctrine of Dedication

Case considered: Nelson v. 1153696 Alberta Ltd., 2010 ABQB 164

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What is the proper basis for fixing the physical boundaries of a road dedicated to public use under the common law doctrine of dedication? In an earlier decision, Justice Andrea Moen had determined that the road known as the Rabbit Hill Road, which passes through private land owned by the respondents, the Nelsons, and the appellant, 1153696 Alberta Ltd., had been “dedicated” as a public road by a previous owner of the land: see Nelson v.1153696 Alberta Ltd., 2009 ABQB 732. As a result of that 2009 judgment, the Nelsons hired a land surveyor so the precise geographic location and physical dimensions of Rabbit Hill Road could be determined. The surveyor provided for a 66 foot wide road. The appellant took issue with that width and the amount of private property that it thereby lost to the public road. The width of the driving surface of Rabbit Hill Road was usually only 45 feet, which meant that the 66 foot width included more than the road itself. Is a public road dedication confined to the actual driving surface of the road or does it include roadside ditches and slopes? It seems that this issue about the scope of a dedication has never been specifically addressed by a Canadian court. English courts have addressed the issue, but Justice Moen refused to follow those precedents.

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