BenchPress - Vol 40-4 - LawNow Magazine

BenchPress – Vol 40-4

Gonzo Language!

The Federal Court of Appeal used some unusually strong language in a recent judgment about a claim for costs. The claim was made by the two lawyers who successfully challenged the appointment of Judge Marc Nadon to the Supreme Court of Canada. Together, the two lawyers asked for almost $70,000 in costs. The lead lawyer based his claim on an hourly rate of $800.00.The Federal Court awarded the two about $5,000 and they appealed that decision. The Federal Court of Appeal found the lawyer’s claims to be excessive and misguided. The Appeal Court was particularly offended by a submission by the lawyers that because the judges are paid by the government, that they were not impartial. Justice Pelletier wrote:

“I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don’t give the applicant its solicitor-client costs….This is reminiscent of the gonzo logic of the Vietnam War in which entire villages had to be destroyed in order to save them from the enemy.”

In a separate comment, Justice Stratas wrote: “An officer of the court should never make such a submission.”

Galati v. Harper 2016 FCA 39 (CanLII)


Representative Juries

The Court of Queen’s Bench of Alberta has ruled that the provincial Jury Act may exclude people convicted or charged with criminal acts from serving on juries.  The Act was challenged by an Aboriginal man when his lawyer drew the judge’s attention to the fact that no one in the pool of potential jurors for his client’s trial appeared to be Aboriginal. The accused argued that Aboriginal persons form a disproportionate percentage of the criminally accused relative to the general population, thereby violating his Charter right to a representative jury. However, Justice Brian Burrows of the Alberta Court of Queen’s Bench ruled that the exclusion of accused and criminally convicted persons was reasonable and acceptable because “a person who has been convicted of a crime, or is currently charged with a crime, is prima facie likely not to be impartial as between the Crown and the accused in a criminal proceeding.” The Court found that the exclusion does not become unreasonable even when its effect is to exclude a proportionally greater number of Aboriginal persons relative to persons of any other ethnic origin.

R. v Newborn 2016 ABQB 13 (CanLII)


 A Tough Spot

An Edmonton dry cleaner has been given a four-month conditional sentence after pleading guilty to five charges under the Canadian Environmental Protection Act. His dry cleaning business used a carcinogenic chemical, tetrachloroethylene, commonly known as PERC. This is the first time in Canada that someone has received a jail sentence under the Act. Provincial Court Judge Janet Dixon noted that he had been warned and educated about the dangers associated with the chemical, and had previously been fined for violations. She said: “You say you care about your employees and the environment, but actions speak louder than words. PERC is bad stuff. You need to go to jail for this.”

Ali Eldin will serve his sentence in the community. He must perform 60 hours of community service and take out a full-page ad in a national newspaper explaining his conviction and sentence.

R. v Eldin 2016 Alberta Provincial Court (full citation not available)

Alberta Court Grants First Exemption for Physician-Assisted Death
By Jon P. Rossall Q.C.
Chair, Health Law Practice Group, McLennan Ross LLP

On Monday, March 1st, 2016, Madam Justice S. L. Martin of the Court of Queen’s Bench of Alberta granted the application of a Calgary woman to seek physician-assisted death[1]. The application arose as a result of the Supreme Court’s offer of personal exemptions from a four month extension of the suspension of its declaration that provisions of the Criminal Code of Canada forbidding physician-assisted death were unconstitutional.

The application was brought by, and on behalf of, a retired psychologist suffering in the end stages of ALS, which is a degenerative neurological disease which causes increased weakness of the majority of the body’s muscles ultimately causing paralysis. The disease is progressive, not treatable and ultimately terminal.

The Court had many questions to answer before dealing with the primary issue, that being whether the applicant was a competent adult person who consents to the termination of her life, suffering from a grievous and irremediable medical condition which causes enduring, intolerable suffering in her particular circumstances which could not be alleviated by any treatment acceptable to her. Specifically, given that the Alberta Courts (unlike Ontario and British Columbia) had not provided any specific guidelines for applications like this, preliminary issues such as appropriate notice; jurisdiction; confidentiality; and sufficiency of evidence needed to be addressed.

The Court found that although the application was not technically a constitutional one, notice to the provincial and federal attorneys general was appropriate, following guidance from the practice guidelines in Ontario. It also found that while in some circumstances notice to family members may be appropriate, in this instance that was not the case.

In terms of jurisdiction, the Court was faced with the prospect of the applicant seeking assistance in death at a private location in British Columbia. Nevertheless, the Court found that the residence of the applicant, not the intended location of death, was the governing principle and found that it had the necessary jurisdiction to grant the Order.

On the issue of confidentiality, while the Court was mindful of the important reasons underlying the principle of open court, it felt that the privacy interests of the applicant (given the sensitive nature of the proceedings and the evidence) outweighed the interests of the public, and felt that the issuance of written reasons (with identities concealed) would satisfy any public need.

Finally, on the issue of the nature of the evidence, the Court relied on the Quebec legislation dealing with assistance in dying; the Ontario and B.C. Practice Guidelines; but most importantly, the decision of the Trial Judge and the Supreme Court of Canada in the Carter v. Attorney General decision in reviewing the nature of the evidence. It determined that unlike Quebec or Ontario, no psychiatric evidence was specifically required in the absence of concerns regarding mental illness or capacity. It also determined that there were no hard and fast requirement for affidavit (i.e. sworn) evidence from physicians, although that would be preferable. She did find that it was necessary to have evidence (even in the form of statements) from the physicians assessing the patient, but not necessarily the physician(s) who would actually provide the assistance in death as she felt that a “flexible” approach to the evidence should be taken.

Finally, it determined that the assessment of competence was required to be relevant as of the time of the granting of the order, not necessarily at the time of death (although in this regard, she was comforted by the fact that the assisted death was intended to occur within a relatively short time frame).

Justice Martin was satisfied on the evidence provided that the applicant met the tests outlined by the Supreme Court in Carter vs. Canada (Attorney General) and granted the application.

The Order granted was remarkable, in that the Judge extended the protection from the Supreme Court’s declaration not only to the physicians involved in the assessment and the actual act of assistance but as well to the pharmacists who provided the medication and (although not specifically required) potentially to other caregivers such as nurses who, collectively, were part of term “physician-assisted death”.

For more information on issues arising from the Carter vs. Canada (Attorney General) decision, contact Jon Rossall or other members of the McLennan Ross Health Law Practice Group.

[1] HS (Re), 2016 ABQB 121

LawNow is grateful for permission to reprint this case comment from Jon Rossall, of McLennan Ross LLP.






Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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