Friday, Feb 26,2016
Supreme Court of Canada – Upcoming Cases

Pot brownies, human smuggling, mandatory minimums: Supreme Court faces full agenda

Sean Kilpatrick / THE CANADIAN PRESS

A decades-old double homicide is the backdrop for the first appeal before the Supreme Court in 2015. Following that, it will be a year of legal clashes and rulings on assisted suicide, government anti-crime reforms, human smuggling and even pot brownies. Here’s a look:

 

Extradition appeal

 

Next week, two Quebecers wanted by police in the United States for the 1988 slayings of a New Hampshire lesbian couple will appeal to the high court to strike down federal extradition orders.

 

Anthony Barnaby stood trial in the U.S. three times in 1989 and 1990 for the crime, but each trial ended in a hung jury. Murder charges were eventually dropped.

 

Now U.S. prosecutors want another crack at him and his alleged accomplice, David Caplin. The two men were working construction in New Hampshire at the time. Prosecutors believe Barnaby stabbed the women to death because he disliked their lesbian lifestyle.

 

Barnaby wants the Supreme Court to uphold a Quebec Court of Appeal ruling that a fourth trial would be abusive in both Canada and the U.S.

 

The federal department of justice, which launched the high court appeal, counters that striking down the extradition order would usurp the responsibility of a future U.S. trial judge to ensure trial fairness, and would be antithetical to the principles of comity and respect for other countries that have extradition agreements with Canada.

 

Child pornography

 

Also next week, two Alberta men will ask the court to overturn their child pornography convictions based on a 2001 Supreme Court ruling that created a “private use exception” to laws against making and possessing child porn.

 

In 2008, Donald Barabash, then 60, and Shane Rollison, then 42, invited two 14-year-old runaway girls to stay at Barabash’s Edmonton home for a few weeks. While there, the girls used drugs and willingly participated in the videotaping of various sexual acts, including between themselves. (It was one month before Parliament raised the age of consent to 16 from 14.)

 

The “private use” exemption protects the making and possession of child pornography if three narrow grounds apply: the acts were ostensibly consensual; the recording was ostensibly consensual; and the pornography was privately held. It covers, for example, a teenaged couple’s private photographs of themselves engaged in lawful sexual activity.

 

The defence argued the private use exemption applied because the material did not depict unlawful sex acts and was for private use. The prosecution argued the nature of the situation was exploitive – and therefore unlawful – because of the age differences, sex acts and use of drugs by the girls.

 

The trial judge ruled that the men had made child pornography, but accepted the defence argument that the private use exemption applied. Barabash was also acquitted of possessing child pornography.

 

The ruling was overturned by an appellate court, which found the girls were in an exploitive situation, therefore removing the protection of the private use exemption.

 

Barabash and Rollison are appealing that decision and their resulting convictions.

 

Assisted suicide

 

The most-anticipated judgment for 2015 will be a potentially landmark ruling on euthanasia and physician-assisted suicide, and whether criminal laws should apply to physician-assisted death. It will mark the first time the top court has addressed the issue since 1993, when it narrowly upheld a criminal ban in the case of Sue Rodriguez.

 

Proponents argue laws treating the act as tantamount to murder are a violation of personal autonomy and infringe on section 7 of the Charter of Rights’ guarantee to “life, liberty and security of the person.”

 

The latest challenge to the law was launched on behalf of two British Columbia women, Katy Carter and Gloria Taylor, who have both since died. The B.C. Supreme Court struck down the law in 2012. The B.C. Court of Appeal overturned the decision last year.

 

Suicide is not a crime in Canada. But the Conservative government has argued Criminal Code provisions prohibiting anyone from assisting in suicide protect the sanctity of life and the most vulnerable. The B.C. Civil Liberties Association is arguing the best protection for all Canadians is regulation, not criminalization.

 

Mandatory minimum sentencing

 

Another anticipated judgment is on the federal government’s tough-on-crime mandatory-minimum sentences for gun crimes and whether that regime constitutes cruel and unusual punishment.

 

Two Ontario men were separately convicted of firearms offences and received the mandatory minimum sentences under a 2008 Conservative government stiffening of the Criminal Code for gun crimes: a three-year mandatory minimum for first offences and a five-year mandatory minimum for repeat offences.

 

Both men challenged the new penalties, saying they violated their section 12 Charter rights to protection from “cruel and unusual punishments.” The Ontario Court of Appeal agreed in 2013 and declared the law unconstitutional. (It also upheld a one-year mandatory minimum for committing an offence using a firearm.)

 

The Crown appealed to the Supreme Court last year to overturn the Ontario ruling.

 

Human smuggling

 

In February, the court is to hear a related series of appeals from five denied refugee claimants, all but one from Sri Lanka, who say they were ensnared in overly broad interpretations of this country’s human smuggling laws.

 

Critics have complained that vague wording in the law too easily allows those being smuggled to be lumped together with those who did the smuggling, and also unfairly punishes smugglers who acted on humanitarian grounds rather than for financial gain.

 

The government says the law should remain broad to effectively deal with the major threat of organized crime that human smuggling can represent. It falls to the Supreme Court of Canada to sort it all out.

 

Pot rights

 

In March, the court is expected to rule on whether medical marijuana patients have a constitutional right to cannabis oils, butters, teas and lotions.

 

A Crown appeal was launched in the fall following a decision of B.C.’s Court of Appeal that found the Canada’s medical marijuana legislation was unconstitutional because it restricts patients to possessing and smoking only the dried plant material.

 

The case began when Owen Smith, of Victoria, was charged in 2009 with possession for the purpose of trafficking and unlawful possession of marijuana after police found more than 200 pot cookies and cannabis-infused olive oil and grapeseed oil in an apartment there. Smith is the former head baker for the Cannabis Buyers Club of Canada.

 

At Smith’s trial in 2012, his lawyer argued that the medical marijuana access regulations were unconstitutional and arbitrary and did not further the government’s interest in protecting public health and safety.

 

In the end, a judge found that criminalizing a patient’s choice of smoking or eating his or her medication was an unwarranted infringement of security of the person rights guaranteed by Section 7 of the Charter.

 

Smith was acquitted of the outstanding drug offences and the Crown appealed the trial judge’s decision and lost.

– With files from Postmedia News and Citizen news services.

imacleod@ottawacitizen.com

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