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It has been over 25 years since Supreme Court of Canada Justice Claire L’Heureux Dubé discredited the myth that rape is most often perpetrated by strangers in R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577. Sexual violence by men against their female intimate partners is, sadly, a common occurrence in Canada and worldwide. Yet myths about spousal sexual violence – marital rape myths – continue to infuse the approach to sexual assault by a wide range of legal actors, including police, prosecutors, defence lawyers and judges.

These myths include the beliefs that consent can be assumed or implied within intimate relationships, that women frequently make false accusations to gain an advantage in family law proceedings, and that marital rape is less serious than rape between strangers because the parties have had sex before. Social science evidence has established that marital rape is often more violent, not less, that injuries are more commonly experienced, and that survivors experience higher rates of trauma. Continue reading →

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Charter of Rights and Freedoms — Cruel and unusual punishment

Posted on January 28, 2020 by Myrna Tuttle

By: Myrna El Fakhry Tuttle

PDF Version: Charter of Rights and Freedoms — Cruel and unusual punishment

Case Commented On: R v Charboneau, 2019 ABQB 882 (CanLII)

In this case, Court of Queen’s Bench Justice L.R.A. Ackerl struck down the mandatory minimum six month sentence in s 286.1(2)(a) of the Criminal Code, RSC 1985 c C-46, as provided for the offence of obtaining sexual services from a minor. In this ruling, Justice Ackerl declared that the mandatory minimum sentence was not grossly disproportionate for the accused (Mr. Charboneau), but it would be unconstitutional for an individual in reasonably foreseeable cases. Continue reading →

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Costs Denied in Elder Advocates of Alberta Society Case

Posted on January 24, 2020 by Jennifer Koshan

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)). Continue reading →

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Keeping an Eye on Foreclosing Banks

Posted on January 22, 2020 by Jonnette Watson Hamilton

By: Jonnette Watson Hamilton

PDF Version: Keeping an Eye on Foreclosing Banks

Case Commented On: Canadian Imperial Bank of Commerce v Strihavka, 2019 ABQB 835

Who is keeping an eye on the conduct and claims of banks and other financial institutions that are foreclosing on people’s homes in Alberta? In at least one case – this case of Canadian Imperial Bank of Commerce v Strihavka – it was a Master of the Court of Queen’s Bench who discovered a bank was providing false or, at least, misleading evidence and the bank’s lawyer was not living up to their professional responsibilities, all for the purpose of taking a person’s home away from them more quickly than allowed at law. Whether this one case is an aberration due to an isolated act of carelessness, negligence or malice, or whether this case is one of many is unclear. The facts suggest there might be systemic issues in foreclosure proceedings in this province. Continue reading →

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Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

Posted on January 20, 2020 by Scott Carrière

By: Scott Carrière

PDF Version: Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

Case Commented On: R v Desautel, 2019 BCCA 151 (CanLII)

On October 24, 2019, the Supreme Court of Canada agreed to hear the Crown’s appeal from the British Columbia Court of Appeal’s decision in R v Desautel, 2019 BCCA 151 (CanLII) (Desautel). The Crown characterized the case as one of national significance, and the country’s highest court has decided to hearthe case despite Desautel’s unanimous three-judge decision. It is difficult to disagree; the case raises issues surrounding the role of Canadian sovereignty in the application of Aboriginal rights and the guarantees of section 35 of The Constitution Act, 1982. Sovereignty inherently implicates all Canadians, thus the Court of Appeal’s reasoning deserves careful scrutiny on this matter.

In Desautel, the Court of Appeal upheld the acquittal of Richard Desautel for hunting without a licence contrary to the Wildlife Act, RSBC 1996, c 488. It did so by affirming his section 35 Aboriginal right to hunt in an area in southeastern British Columbia, having satisfied the test for such rights set down by the Supreme Court of Canada in R v Van der Peet, 1996 CanLII 216 (SCC). Desautel, however, is an American; he has never lived in British Columbia, nor is he a Canadian citizen. He is a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) living on the Colville Indian Reserve in Washington (Desautel at paras 4 – 5). The basis for the rights claim was CCT’s status as successor to the Sinixt, a people whose traditional territory straddled the Canada-US border and who crossed the border frequently even into the 20^th century. The case therefore turned on whether section 35 could apply to non-Canadians and how to reconcile the assertion of sovereignty in the context of modern borders (Desautel at para 3).

This post will examine the British Columbia Court of Appeal’s analysis of the interplay of Canadian sovereignty and Aboriginal rights that arose in Desautel. It will not attempt to predict how the Supreme Court of Canada may approach the Crown’s appeal, but will reflect on ambiguities not addressed by British Columbia’s top court and how they might play out in Alberta and elsewhere in Canada. Continue reading →

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