Manitoba Law Journal
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Chief Justice Chartier\u27s Civil Procedure Legacy: Attuned to Access to Justice
No full textThis article investigates Chief Justice Chartier’s legacy on civil procedure. Though not the area of law he is most known for, analyzing nineteen notable cases to which he contributed reveals engagement with the principles of civil procedure such as predictability, efficiency, and fairness—and a particular sensitivity to access to justice, largely through seeking to ensure the resolution of civil actions on their merits—in this area of law where chief justices often lead by example
FREEDOM CONVOY FEVER: Social Media and the Reasonable Expectation of Privacy in the Artificially Intelligent Surveillance State
No full textThe 2022 “Freedom Convoy” in Ottawa attracted widespread attention across traditional and social media outlets as the demonstration evolved into a long-drawn-out standoff between protestors and state officials. In the ensuing aftermath, the outpour of images and videos that flooded social media during the protest were subsequently used by law enforcement to arrest and charge individuals involved. This inspired an examination of the constitutional status of these “seizures.”
Using the Freedom Convoy as a backdrop, this paper examines the reasonable expectation of privacy in information shared on social media, beginning with a discussion of the influence that artificial intelligence and machine learning have on modern policing. A broad discussion of whether a reasonable expectation of privacy exists in this area of the law then follows, and the difficulty of overcoming the doctrine of abandonment in establishing a privacy interest is noted. The issue of abandonment is then re-evaluated in light of recent jurisprudence from the Supreme Court of Canada, as well as the Mosaic Theory of the Fourth Amendment from United States v. Maynard. A conclusion is then presented, and suggestions are made concerning future research efforts
Morbid Matters: Medical Assistance in Dying in Federal Corrections
No full textAn ongoing problem of federal prisons in Canada continues to be deaths in custody. While prison suicides (i.e., dying by unnatural causes) and aging in prison (i.e., dying by natural causes) remain significant challenges, the legalization and introduction of medical assistance in dying (MAiD) raises policy and operational challenges for federally sentenced and/or terminally ill prisoners. Correctional Service of Canada (CSC) policy now allows for an external provider to end the life of a prisoner, contingent upon exceptional circumstances. Beyond the optics of enabling or facilitating inmate deaths via state agency, there are greater moral, ethical and practical considerations that must be discussed. This article explores the state and challenges of carrying out MAiD in relation to penitentiary settings. As the findings suggest, the arrival of MAiD has prompted an expansion of ideas of what constitutes fostering life or marking for death, and the relationship between the pair
Constitutional Dimensions of the Consultation and Accountability Systems within Canada’s Emergencies Act
No full textThis article assesses the consultation and accountability mechanisms within Canada\u27s Emergencies Act, focusing on their alignment with federalism and other elements of Canadian constitutionalism. Using the Rouleau Commission\u27s Final Report as a backdrop, the article identifies gaps in these consultation and accountability mechanisms. The article argues that these gaps are of constitutional significance because the Emergencies Act’s effect of departing from standard constitutional norms makes it necessary for legality and legitimacy reasons to have sufficiently robust consultation and accountability mechanisms. The article proposes recommendations, including developing provincial consultation guidelines, implementing a non-whipped parliamentary confirmation vote, enhancing information accessibility for Parliamentarians, refining the inquiry process, and addressing the Emergencies Act\u27s non-compliance with case law on the duty to consult. The analysis thus contributes to ongoing discussions on harmonizing Canada’s Emergencies Act with constitutional principles
Mr. Big Operation Scripts Post-Hart
No full textMr. Big operations (“MBOs”) are a Canadian invention, a version of which dates back over 120 years, with its modern use beginning in the 1990s. However, it was not until 2014, with the Hart decision, that the Supreme Court of Canada found occasion to subject MBOs to regulation. The question this paper endeavours to undertake is whether the court’s new analytical framework, which treats MBO confessions as presumptively inadmissible, has affected the scripting of MBOs – or if there remains a proliferation of the same basic plot points across multiple scenarios. In analyzing the 14 cases in which the MBO took place post-Hart, four of which in-depth – Buckley, Dauphinais, Rockey, and Caissie – the author concludes that Hart has had no meaningful impact on MBO scripting, apart from superficial changes regarding the criminality of the fictional organization the suspect is recruited into, and the level of direct violence utilized. The coercive, manipulative tactics used by MBOs which can induce false confessions remain embedded within the technique. MBOs by their very nature remain problematic, and Hart’s legal tinkering has not defused their potential for wrongful convictions and abuse of process. However, despite the merits of MBO abolition, this is unlikely to occur anytime soon. As such, the author proposes several interim MBO reforms: (1) greater external oversight; (2) re-invigorating the abuse of process analysis; and (3) treating MBOs as akin to in-person interrogations
Chapter 3: “John Radclive”: “Descent into Hell” 1900-1911
No full textChapter 3: “John Radclive”: “Descent into Hell” 1900-1911
Aligning Manitoba\u27s Sustainable Development Legislation with the 2030 Agenda
No full textThe Climate and Green Plan Act [CGPA] is Manitoba’s current sustainable development legislation; however, the CGPA does not effectively advance sustainable development as envisioned in the United Nations 2030 Agenda for Sustainable Development [2030 Agenda]. This paper provides an overview of what sustainable development is, a history of Manitoba’s attempts at implementing sustainable development, as well as the history of the 2030 Agenda. This background provides context for the recommendations made in this paper for advancing sustainable development in Manitoba. The central recommendation is that Manitoba should enact provincial legislation that aligns with the 2030 Agenda. The new statute should reference both sustainable development and the 2030 Agenda in its title; update the definition of sustainable development to include the “5Ps” (people, planet, prosperity, peace, and partnership); and mandate a strategy that explicitly states how Manitoba will meet the 17 Sustainable Development Goals [SDGs]. Manitoba should also use a consistent definition of sustainable development in all relevant provincial legislation. These recommendations will better align Manitoba’s sustainable development legislation with Canada’s international commitments. This paper makes two contributions to existing literature. First, it provides an updated summary of Manitoba’s history of sustainable development legislation and policies. The most recent summary was published over ten years ago. Second, it provides examples of how the 2030 Agenda can be localized at the provincial level
Modern Finance-Centric Governance: the 2022 Emergency Measures, Property and Financial Powers
No full textA distinctively financial hammer was used to shutter the February 2022 public order emergency. Bank accounts were frozen, donation conduits were squeezed, financial intermediaries were placed under surveillance, and protestors and their financial supporters were met with the risk of severe sanctions. While this tethering of finance and property to end the 2022 Convoy uprising elicits a certain surprise, it is also familiar territory: it sits well within modern crime control policy. The greater surprise is not the type of hammer but the finding of this tool within the box of federal emergency powers that might be leveraged to deal with a public order emergency. This brief note examines the distinct finance and property related measures used in 2022 and their relationship to the federal Emergencies Act. It recommends that Parliament engage in careful deliberation over the appropriateness of financial and property measures for responding to a public order emergency, that the permissibility of such measures be clearly specified and constrained by the statutory language of s. 19(1) and that s. 19(1) be further amended to explicitly require review for Charter compliance of all emergency measures prior to any implementation
Canada’s fractured emergency management system
No full textCanada’s emergency legislation, the Emergencies Act, was examined as part of the Public Inquiry into the 2022 Public Order Emergency. This Inquiry recommends several amendments to the Emergencies Act but does so without examining the wider context of Canada’s emergency management system. This paper looks at that context to explain why the only legislative tool available to respond to the 2022 protests was, at best, adequate. The underlying assumption is that Canada has an effective and efficient emergency management system that is only hampered by out-of-date legislation. Examining the historical development shows that the Emergencies Act was drafted in the absence of a robust emergency management system that subsequently evolved in ways that make the legislation further out of step. Amendments to the Emergencies Act must resolve the current overlap with matters of provincial concern that can currently arise during a national emergency for public welfare and public order. Federak emergency powers should only deal with ways the federal government is likely to get involved within its own jurisdictional powers and in light of current federal legislation