Welcome to Tarrabain & Company’s virtual office. Our website, or our virtual office as we like to call it, will provide you with a vast amount of information about our firm. From the type of law that we practice, our lawyer’s profiles, to answers for commonly asked questions. We hope that your stay is enjoyable as well as informative and that you contact us with any further questions.

  
  We practice
Criminal Law
Our lawyers are committed to the effective representation of an individual's rights within the Criminal Justice System. We are experienced trial lawyers in the areas of narcotics offences, violent crimes, impaired offences, and provide appellate(appeal) services for all conviction and sentence matters.
Personal Injury
Our personal injury members are experienced litigation lawyers dedicated to assisting individuals during the stressful aftermath of a motor vehicle collision or other traumatic injury. We assist our clients with the resolution of their claims, providing them with strong representation. We represent our clients in these matters on a contingency basis. Please contact us for details.
Civil Litigation
We assist individuals, either plaintiff or defendant, with general areas of civil litigation.
Family Law
At a very trying and difficult time, there are many questions surrounding familial issues. It is essential that you know your rights and obligations arising out of marriage, cohabitation, and separation and be advised how to proceed to enforce those rights, meet your obligations, and be protected.
Real Estate
Our Real Estate lawyers offer assistance and representation with residential and small business real estate purchase and sale transactions.
Corporate Services
Our Corporate Lawyers handle incorporation and general Corporate matters.
Wills and Estates
The Wills and Estates lawyers offer assistance to clients in the drafting of wills, probate of estates, drafting personal directives, and powers of attorney.
  
  Alberta Criminal Judgments
Friday, June 12, 2009

In Morrow v. Zhang, 2009 ABCA 215, the Alberta Court of Appeal overturned the trial judge’s ruling that the Minor Injury Regulation, AR 123/2004 (the "MIR") was unconstitutional. In its decision , the Court addressed three issues:

1) Whether the MIR violated s. 15 of the Charter relating to whether minor injury victims were being discriminated against under the MIR;

2) Whether the MIR violated s. 7 of the Charter relating to whether the MIR offended the principles of fundamental justice; and

3) Whether the MIR would be saved and justified under s. 1 of the Charter in the event the MIR violated Charter.

Issue #1 - The Section 15 Analysis

The Court, in reviewing the law, determined that there are two principal factors in assessing discrimination cases. Firstly, whether there is "perpetuation of prejudice and disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds." Secondly, whether there is "stereotyping on the basis of these grounds that do not correspond to a claimant’s or group’s actual circumstances and characteristics."

Furthermore, the Court held that a legislative scheme must be considered in its entirety in determining whether the legislation offends s. 15 of the Charter. The Court found that the trial judge erred in law by failing to consider the Diagnostic and Treatment Protocols Regulation (DTPR) in conjunction with the MIR. The Court found that the DTPR and MIR legislation were inter-dependant and inter-related. Both the MIR and the DTPR were a "package" of legislation to address insurance reforms.

Although deferring to the trial judge’s finding that soft tissue injury claimants suffered from stereotypes, the Court held that the trial judge erred in law in assessing the perpetuation of the stereotype in his s. 15 analysis, particularly because the trial judge failed to consider the MIR in conjunction with the DTPR. Rather, the Court found that the DTPR promotes and assists treatment of soft tissue injury claimants. Further, the Court held that both the MIR and DTPR, when considered together, "provides for an individual process, which recognizes the reality of the claimant’s injuries." Therefore, the legislation was not discriminatory.

The Court further stated that "mandatory automobile insurance is a public policy choice" reflecting society’s need to compensate injured parties resulting from motor vehicle accidents. The Court, in agreeing with the Crown’s submissions, also stated that the legislative scheme had many purposes, ranging from the affordability of insurance, potential for increased numbers of uninsured drivers, and compensating victims of motor vehicle accidents. The Court held that the trial judge erred by over-emphasizing the reduction in premiums in considering the purpose of the legislation.

The Court determined that the legislation corresponded to the needs of accident claimants and, therefore, was not discriminatory. In reaching this conclusion, the Court found that the legislation classifies the injuries as WAD I or II, treatments are provided for minor injuries, and more extensive benefits and assessments are provided to persons suffering from more significant injuries. However, the Court held that the $4,000 limit on damages for pain and suffering would be unlikely to address each individual’s personal circumstances. Nonetheless, the Court held that the legislation allows for the treatment of individuals on an individualized basis. Thus, the Court found that the legislation is not discriminatory when considered as a whole.

Moreover, in considering the nature of the interest affected under the s. 15 analysis, the Court found that the Supreme Court had already placed a limit on damages for pain and suffering in the Andrews trilogy. The Court further noted that the limits placed on damages pursuant to the Andrews trilogy had "survived Charter scrutiny." The Court also observed that no interest relating to a claimant’s social or constitutional rights were affected by the legislation. Rather, the only interest affected was an economic one. The Court did not agree with the trial judge’s assessment that damages for pain and suffering a fundamentally important from a societal perspective.

The Court also recognized that other jurisdictions had placed a limit on damages for pain and suffering in finding that the legislation was not discriminatory under s. 15 of the Charter.

Issue #2 - Section 7

The Respondents submitted a cross-appeal on the basis that the legislation infringed the s. 7 rights of the Plaintiffs. The Respondents submitted that the legislation violates "their physical and psychological security by directing certain medical treatments" under the legislation.

In dismissing the cross-appeal, the Court, in agreeing with the trial judge, held that the MIR does not coerce any treatment measures as well as any failure to adhere to the DTPR would merely result in financial consequences, which was not of such severity as affecting the fundamental security of the person. Rather, the legislation allows for flexibility in treatment as well as maintaining the discretion of a claimant’s health care practitioner in treating the claimant.

Issue #3 - Section 1

The Court did not engage in a s. 1 Oakes analysis as the Court did not find any breach of Charter rights.


Tuesday, March 25, 2008

R. v. Townsend, 2008 ABCA 44

Appeal from decision of Hart J. on September 8, 2006 allowing the Respondent's appeal from conviction for impaired driving. 

Martin J.A. (Hunt J.A. and Brooker J.A. concurring): Appeal allowed and conviction restored.

Facts: Officer followed Respondent after informed by Tim Horton's employee that Respondent may be impaired.  Observed Respondent run red light and make somewhat erratic unsignalled left turn.  Police stop.  Respondent asked why he was stopped and officer explained driving infractions.  Officer asked for documents.  Saw blood-shot eyes, slurred speech, smell of alcohol and very slow movements when producing documents.  Arrested in the police vehicle and informed of Charter rights.  The trial judge did not exclude the evidence and convicted.  Summary conviction appeal judge allowed the appeal. 

Are an accused's slurred speech and dexterity problems in producing documents admissible to prove impairment if obtained prior to informing the accused of his Charter rights?

Yes.  Unrealistic to think that officers who stop vehicles for traffic infractions that they are not alert to possibility of other offences. Limitation of use of roadside device in Milne and Orbanski not to apply to officer's observations while carrying out other authorized duties (i.e. request for documents).  The observations existed independently of what the officer did or said. 

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Contact Our Lawyers

Sid Tarrabain Greg Lintz Sharon Tarrabain Senia Tarrabain Lynn Rideout
Sid Tarrabain Greg Lintz Sharon Tarrabain Kathy Tarrabain Walter Raponi Senia Tarrabain Ali Moughel Lynn Rideout