Pubdate: Wed, 07 Jan 2015
Source: Ottawa Citizen (CN ON)
Copyright: 2015 Postmedia Network Inc.
Author: Ian MacLeod
Page: A7


A decades-old double homicide is the backdrop for the Supreme Court's
first appeal of 2015. Following that, there will be legal clashes and
rulings on assisted suicide, government anti-crime reforms, human
smuggling and pot brownies, writes Ian MacLeod.

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

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.


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 pornography.

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 teenage
couple's private photographs of themselves engaged in lawful sexual

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


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 and Freedoms' 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
British Columbia Civil Liberties Association is arguing the best
protection for all Canadians is regulation, not criminalization.


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.


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.


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 grape seed 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.
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