Manitoba Law Journal
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The Constitutionality of Excluding Duress as a Defence to Murder
No full textThe Supreme Court’s decision in R v Ruzic constitutionalized moral involuntariness as a principle of fundamental justice under s. 7 of the Charter. Although the Court used this principle to strike down the imminence and presence requirements in the statutory duress defence, it left open the possibility that the lengthy list of excluded offences might also violate the moral involuntariness principle. The author maintains that various doctrinal and philosophical reasons support interpreting the moral involuntariness principle in a manner that allows duress to be pleaded for the offence of murder. Although it is possible that exclusion of murder could be justified under s. 1 of the Charter, such a finding would inevitably result in a separate challenge to the mandatory minimum punishment provisions for violating the prohibition against cruel and unusual punishment found in s. 12 of the Charter
The Duty as Legislative Counsel as Guardians of the Statue Book: Sui Generis or a Professional Duty of Lawyers?
No full textLegislative counsel—those who draft legislation for the executive or for legislative assemblies—are largely overlooked in the Canadian legal literature and case law. One respect in which legislative counsel appear to be unique is their duty as guardians or keepers of the statute book. This article argues that this Guardian duty is best understood as a professional duty of legislative counsel as lawyers. In the same way that all lawyers have professional duties as officers of the court, though these duties are most relevant to litigators, all lawyers have professional duties as officers of the statute book, though these duties are most relevant to legislative counsel. All lawyers, when drafting legislation, have particular component professional duties to encourage, discourage, and even refuse certain instructions. The article also considers law-society jurisdiction over legislative counsel, arguing that such jurisdiction is constrained by parliamentary privilege and federalism
Fundamentally Flawed: The Arbitrariness of the Corporal Punishment Defence
No full textIn Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), the Supreme Court of Canada upheld the corporal punishment defence contained in s. 43 of the Criminal Code in the face of arguments that it is an unreasonable infringement of children’s rights under ss. 7, 12, and 15 of the Canadian Charter of Rights and Freedoms. In the process of giving precision to the terms of s. 43 as a prelude to its s. 7 vagueness analysis, the majority indicated that the purpose of the section is to allow only the kind of force against children that has “corrective value” as determined primarily by the weight of expert evidence. The author argues that the Supreme Court’s subsequent recognition of arbitrariness as a distinct fundamental justice concern under s. 7 in Bedford v Canada (Attorney General) meets the “new legal issue” standard for reconsidering previous declarations of validity established in Bedford. The author also argues that since 2004, changes in global attitudes and expert opinion in relation to corporal punishment have “fundamentally shift[ed] the parameters of the debate” which is the second Bedford test for reconsidering previous declarations of validity. Engaging the new arbitrariness framework and the importance that it places on the purposes of laws, the author argues that s. 43 is unconstitutionally arbitrary. Contemporary expert opinion recognizes no corrective value associated with corporal punishment. Because s. 43’s objective is unachievable, there is no rational connection between it and the limit that it imposes on the children’s security interests
Fitness to Stand Trial and Dementia: Considering Changes to Assessment to Meet Demographic Need
No full textFitness to stand trial assessments conducted by forensic mental health specialists occur on a regular basis. The same standard has traditionally been used for close to thirty years. This paper examines an interesting case of a fitness assessment for a lawyer who was charged with a crime, which brings light to some facets of fitness assessments. Historically, it has been less common for individuals to be found unfit to stand trial related to Major Neurocognitive Disorder (Dementia) as compared to Psychotic Disorders. This lawyer’s medical conditions are discussed as well as their implications for an individual’s ability to be fit to stand trial. The criteria used in different legal decisions have varied in different cases. The variation has appeared to be related, at least in part, to the different diagnoses that may be impacting an individual at the time of their involvement with the legal system. We consider here the different interpretations of criteria related to fitness to stand trial, including the ability to communicate with counsel. Potential changes to fitness assessments will also be examined, including the idea of using standardized tools. The importance of these issues is made evident by the fact that Major Neurocognitive Disorder is becoming more prevalent, and these issues will likely be apparent more frequently in the future. A multi-disciplinary team approach may be an ideal way to examine the future direction of fitness assessments, including the involvement of allied health professionals
Decades in Crisis: A Critical Analysis of the Underuse of Section 81 and 84 of the Correction and Conditional Release Act and its Role in the Systemic Neglect of Indigenous Rehabilitation and Reintegration
No full textDecades in Crisis: A Critical Analysis of the Underuse of Section 81 and 84 of the Correction and Conditional Release Act and its Role in the Systemic Neglect of Indigenous Rehabilitation and Reintegratio
11(e) Shattered: The Historic and Continued Breaching of Indigenous Persons Right to Reasonable and Timely Bail
No full text. 11(e) of the Charter states that “any person charged with an offence has the right not to be denied reasonable bail without just cause.” Canada\u27s bail provisions and bail system have historically created barriers to Indigenous peoples accessing reasonable bail in Canada. Recent changes in the bail provisions have attempted to address some of these issues. However, recent jurisprudence has demonstrated that the access to justice issue regarding reasonable bail in Manitoba for Indigenous persons is deep-rooted and multifaceted. This paper will look at the historical access to justice issues regarding reasonable bail for Indigenous peoples, the current attempts to address this issue, and the challenges that still need to be addressed.
 
High Time for Change: Combatting the Black Market for Cannabis in Canada
No full textOn October 17, 2018, Canada legalized the recreational possession and use of cannabis federally under the Cannabis Act. The Cannabis Act states goals of protecting young people from cannabis, reducing and deterring illicit activities in relation to cannabis, and providing the public with access to a supply of legal, quality-controlled cannabis. Despite this, the black market for cannabis has remained strong and persistent, with research indicating that the black market accounted for approximately 71-86% of cannabis sales in the first year of legalization. This paper will explore how and why Canada’s criminal black market for cannabis continues to function after legalization, and what measures can be taken to counteract it.
Canada’s illicit black market for cannabis continues to function as the by-product of a reprobate stew of mail-order and traditional cannabis dealers, who operate in a difficult-to-enforce periphery of the Cannabis Act. They continue to flourish by offering cheaper, higher quality, and more available cannabis, functioning as a better-run business outside of the stringent regulatory requirements of the licit market, particularly in packaging and marketing requirements.
This paper will recommend that licit retailers and the government must take several decisive steps to combat this. First, amend the Canada Post Corporation Act. Second, be a better business generally by offering lower cost, higher quality cannabis that is consistently available in stores. Third, introduce affordable cannabis options to directly address price-sensitive consumers. Fourth, engage in consumer education. Fifth, loosen marketing restrictions on legal cannabis retailers. Sixth, pass legislation to better utilize the banking and financial sector to trace and flag bank accounts associated with illegal cannabis sales
Flooding of First Nations and Environmental Justice in Manitoba: Case Studies of the Impacts of the 2011 Flood and Hydro Development in Manitoba
No full textReadability in the Canadian Tax System
No full textThis paper reports the results of a readability analysis of various parts of the Canadian tax system, with a particular focus on Canada’s income tax. The results indicate that Canada’s Income Tax Act is significantly more difficult to read than the taxation statutes of several comparable jurisdictions and more difficult to read than other Canadian legislation governing economic relationships. The guidance published by the Canada Revenue Agency for the use of tax professionals and the public appears more accessible. While it may be hoped that the statutory provisions that apply to low- and middle-income individuals would be more readable than the Income Tax Act as whole, the study found evidence to the contrary. Although the readability of the statute can only be one part of a program toward making the tax system more accessible, this paper argues that it is a project worth pursuing
A Deposit in a Pre-Incorporation Transaction is Still a Deposit: A Comment on Benedetto v 2453912 Ontario Inc
No full textIn Benedetto,the promoter of a pre-incorporation transaction argued that a deposit had to be returned to him when the transaction did not close. His reason was that there was language in the agreement to indicate that he was invoking the protection of subsection 21(4) of the Business Corporations Act (Ontario).The Court refused.
While I agree with the ultimate result in the case, there are three basic issues that will be considered in this Comment. After laying out the reasoning of the Court of Appeal (in Part II), I turn to a fundamental concern that lies at the heart of my discomfort with this ruling, namely, my view that any deposit is inextricably intertwined with the contract that provides for it. This runs directly counter to the reasoning provided by the Court of Appeal (the focus of Part III). In Part IV, I suggest that there is a more direct route to deal with the issue of deposits in pre-incorporation transactions that use language that is reasonably considered a subsection 21(4) inclusion. Essentially my argument is three-fold. The first argument is one of contractual interpretation. Drawing upon both recent case law from the Supreme Court of Canada, as well as older case law from other courts, I suggest that a proper interpretation of the contract at issue (and others like it) would have led to a narrow interpretation of the language of the subsection 21(4) inclusion. Narrowly construed, the inclusion does not force the payment of the deposit, but also does not mandate its return. Second, the tort of deceit may also have a role to play here. I then suggest that there was in fact a third route that would have allowed the Court to refuse to return the deposit, namely, the law of restitution. Finally (in Part V), I will review the academic commentary that immediately followed the release of this judgment, suggesting that the Court of Appeal’s conclusion was problematic. I will suggest that the commentary, which criticizes the Court of Appeal, is itself flawed