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Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

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On December 6, 2008

In Appellate Practice, State Responses to Violence

Cases considered: R. v. Jefferson, 2008 ABCA 365; R. v. C.H.L., 2008 ABCA 366.

PDF Version: Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

In two decisions released on back to back days in early November, the Alberta Court of Appeal grappled with the issue of sentencing in serious sexual assault cases. Both judgments were released as Memoranda of Decision, and neither is very helpful in providing guidance to lower court judges for sentencing in this area. The cases call into question the legitimacy of a Practice Note issued by the Court of Appeal to the effect that Memoranda of Decision have less weight than Reasons for Judgment Reserved in sentencing cases. Indeed, in one of the cases the judges themselves question this practice, yet effectively perpetuate it at the same time.

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Partition or sale of co-owned property?

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On December 1, 2008

In Appellate Practice, Property

Cases considered:  Polanski v. Roth, 2008 ABCA 378

PDF Version: Partition or sale of co-owned property?

This brief Memorandum of Judgment delivered from the bench by the Alberta Court of Appeal is notable for a number of reasons. First, the Court of Queen’s Bench judge did not give any reasons for his order but, aside from noting this fact, the Court of Appeal does not appear to be concerned by the lack of reasons and even applies “reasonableness” as the standard of review. How can a judgment given without reasons be assessed as reasonable? Second, the content of a proposal made by the appellant during settlement negotiations is used against him. Ordinarily, communications made for the purpose and in the course of negotiating a settlement are made on a “without prejudice” basis and cannot be used in court as evidence, whether “without prejudice” is expressly claimed for the communication or not. There might have been a reason why the appellant’s settlement proposal was used against him in this case, but none is offered. Third, the appellant would probably have succeeded had his application been brought between 460 and 30 years ago, when the relevant law was three old Imperial statutes dating from 1539, 1540 and 1868. The law was, however, changed to a made-in-Alberta law in 1979, and the 110 year old provision which would have assured the appellant’s win was dropped, seemingly without discussion.

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Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

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On November 24, 2008

In Family

Cases considered: Alberta (Child, Youth and Family Enhancement, Director) v. Q.F., 2008 ABQB
PDF Version:  Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

It is always interesting to see a court sending a message to the government about the difficulties presented by a particular piece of legislation. In constitutional law, the dialogue metaphor has been used (and some would say overused) to describe this process of back and forth between the courts and legislatures (see Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75). Outside the constitutional law context, however, legislatures are not forced to listen and respond, as the remedial implications of striking down a piece of legislation, or severing certain sections as unconstitutional, are absent. Courts might thus need to repeat themselves before the legislature takes notice of non-constitutional problems with a statute, as we see in a recent child welfare case in Alberta.

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Is there really any question about the test for part performance in Alberta

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On November 21, 2008

In Property

Cases considered: G 400 Holdings Ltd. v. Yeoman Development Company Limited, 2008 ABQB 667

PDF Version: Is there really any question about the test for part performance in Alberta

I apparently spoke too soon. In March 2008, I noted that the Alberta Court of Appeal decision in Booth v. Knibb Developments Ltd., 2002 ABCA 180 had settled any doubts about which test for part performance applies in Alberta: see “The Doctrine of Part Performance: Still Strict After All These Years”. There are two tests for determining what acts of part performance are sufficient to allow enforcement of an oral agreement concerning land, both originally formulated by the House of Lords. The older and stricter test was set out in Maddison v. Alderson (1883), 8 App. Ca. 467 at 478 (H.L.); it requires that the acts relied upon by the claimant as part performance “be unequivocally, and in their own nature, referable to some such agreement as that alleged.” That test was relaxed considerably in England in 1976, with the decision in Steadman v. Steadman, [1976] A.C. 536. In Steadman, the House of Lords held that the acts of part performance need refer only on the balance of probabilities to some contract to which the claimant was a party. Although a number of Alberta courts applied the more relaxed test from Steadman in the 1980s, in 2002 the Alberta Court of Appeal unequivocally adopted the traditional, stricter test from Maddison v. Alderson. That was the end of the influence of Steadman in Alberta – until the October 30, 2008 decision of Madam Justice Barbara Romaine in G 400 Holdings Ltd. v. Yeoman Development Company Limited.

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Supreme Court denies leave to appeal to parents in disinterment case

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On November 20, 2008

In Supreme Court of Canada

Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188, leave to appeal denied by S.C.C.

PDF Version:  Supreme Court denies leave to appeal to parents in disinterment case

On November 13, 2008, Justices Louis LeBel, Marie Deschamps and Louise Charron of the Supreme Court of Canada denied leave to appeal to Grace Johnston in a case involving her right to have a say in the disinterment of her son’s remains. No reasons were provided for the Supreme Court’s decision, although it is interesting to note that no costs were awarded against Grace Johnston for pursuing the leave to appeal application. As noted in previous posts on this case, (https://ablawg.ca/2008/01/12/leave-to-intervene-denied-to-metis-nation-in-case-involving-disinterment-of-rcmp/#more-44 and https://ablawg.ca/2008/06/07/disinterment-of-rcmp-officer-may-proceed-despite-parents%E2%80%99-wishes/#more-153), the Alberta Courts upheld the decision of the Director of Vital Statistics under the Cemeteries Act, R.S.A. 2000, c. C-3, to permit disinterment of Constable Leo Johnston’s remains on the application of his widow Kelly Barsness. Constable Johnston was one of four RCMP officers killed in the line of duty near Mayerthorpe, Alberta in March 2005, and was originally buried in his home town of Lac La Biche. Ms. Barsness’s wish to have Constable Johnston’s remains moved to the special RCMP Cemetery in Saskatchewan can now proceed, in spite of the objections of Grace Johnston, her husband Ronald, and members of the Métis community who were denied any standing in the case.

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