Manitoba Law Journal
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Interjurisdictional Accountability for Interjurisdictional Problems
No full textEmergencies in Canada are necessarily interjurisdictional affairs. They require multiple levels of government to play active roles at all stages of emergency management. The Rouleau Report documented numerous interjurisdictional failures in the 2022 Public Order Emergency, but the mandate and process limited the Commission\u27s investigation of these issues. This commentary examines how past inquiries and long-standing practices in Canadian environmental law could serve as a model to improve interjurisdictional governance and accountability in emergencies. In particular, it recommends amending Section 63 of the Emergencies Act to empower the federal government to constitute a joint inquiry with other affected jurisdictions, including Indigenous Nations, to improve oversight, accountability and learning whenever the federal government invokes the Emergencies Act
Preface and Issue Overview
No full textThis is the first issue of a new dimension to the Manitoba Law Journal. We are referring to this new dimension as “The Review of Enterprise and Trade Law” (or TRETL, for short). It is hoped that TRETL will present an opportunity for further collaboration between the Asper Chair in International Business and Trade Law, and the Desautels Centre for Private Enterprise and the Law, and our various partners, both within and outside the University of Manitoba
Lawyers and Public Service: Duty, Faith, and the \u27Good Republican\u27 in The West Wing
No full textPopular culture reveals much about the perceived role of lawyers in contemporary life. In this article, I draw lessons from the portrayal of lawyers in Aaron Sorkin\u27s classic television series, The West Wing. As a drama centred around a Democratic presidential administration, Republicans often provide the foil. From time to time, however, the show lionizes what might be termed ‘the good Republican’. That ‘good Republican’ is most often a practicing lawyer whose desire to serve is grounded in duty or faith. In this essay, I use a trio of these characters to explore the role of lawyers in public service. At first glance, these lawyers may seem to achieve goodness through a readiness to abandon their political views, particularly Republican views – suggesting that lawyers’ beliefs are malleable if not mercenary. At a deeper level, however, these characters and their experiences vividly convey idealized but worthwhile ideals of public service as a valuable and honourable career choice, particularly for lawyers
Property, Civil Forfeiture and the Charter
No full textThis paper seeks to address the issue of how evidence obtained in violation of a Charter-protected right is to be dealt with in civil forfeiture proceedings. In arriving at the answer, the governing jurisprudence in this area of the law will be canvased to provide a contextual background that informs the parameters of this discussion. However, it will ultimately become clear by the end of this paper that evidence obtained in violation of a Charter-protected right should be dealt with by way of section 24(2) of the Constitution Act, 1982, and the use of a modified Grant test.
Civil forfeiture is the process by which the state commences legal action to obtain property that was seized as an instrument or proceed of unlawful activity. Although property can be forfeited through a number of different mechanisms, the scope of this paper is limited to forfeiture proceedings commenced by way of civil action under provincial legislation with a focus on British Columbia.
The case law presented in this paper will focus primarily on appellate court decisions from across the country due to the scarce attention this area of the law has received. These cases will highlight the endeavours of litigants who sought to undermine civil forfeiture proceedings through the use of common law principles and the Charter. Finally, commentary will be provided on the direction future research in this area of the law should take
Establishing Police Accountability: How Do We Stop Charter Violations from Happening
No full textIn response to public criticism and protests to defund police, this article seeks to analyze a few of the problems facing Canadian policing today and tackle the question: how do we stop police Charter violations from happening in the first place? This article begins by laying out a number of the general concerns facing policing. First, it shows that the current remedies available under section 24 of the Charter are imperfect tools for tackling larger systemic policing misconduct. This problem is compounded by the fact that police forces lack formal systems to track or follow up on judicial rulings that find their officers have violated Canadians’ Charter rights. This inevitably leads one to wonder whether those officers – who have been found to have violated the Charter – are actually facing the consequences or re-training for their misconduct. In the face of these concerns, this article seeks to make two recommendations that could help improve police accountability and re-establish public trust. First, it suggests that the laws surrounding what the police are legally authorized to do need to be clarified and solidified. This requires the courts to stop expanding the scope of police powers on a case-by-case basis and leave the task to Parliament to work with police and the public to legislate police powers. Second, this article suggests that policing needs to evolve from an occupation into a formal profession by establishing a “College of Policing” in each province and territory. The College would be responsible for protecting the public from police malpractice and misconduct. The College would accomplish this goal by providing education and licensing of officers, ensuring police practices respect Canadian Charter rights, and responding to public complaints and Charter violations
Interview with Chief Justice Marianne Rivoalen
No full textInterview with Chief Justice Marianne Rivoalen
Chapter 6: “Arthur Ellis”: Mercenary Motives and Public Scandals
No full textChapter 6 “Arthur Ellis”: Mercenary Motives and Public Scandal
Threats to the Security of Canada: Same, Same but Different
No full textThis paper examines the Canadian government\u27s interpretation of the Emergencies Act (EA) and its threshold for declaring a national emergency in response to protest and dissent. The authors revisit their previous article published in Criminal Law Quarterly (CLQ) which raised concerns about the government\u27s novel interpretation of the EA when justifying its use during the Freedom Convoy protests of 2022. Based on evidence presented during a subsequent commission of inquiry and Commissioner Rouleau\u27s final report, the authors analyze the government\u27s legal interpretation of the phrase "threat to the security of Canada" and the inconsistent and ambiguous testimony provided by government officials and Cabinet Ministers. The authors argue that the Commissioner failed to address the most contentious legal arguments offered by the government, particularly the assertion that economic harm can satisfy the requirement for serious damage to property. The paper highlights the ongoing significance of this missed opportunity. The authors offer recommendations for amending the EA to explicitly address economic harm and disruptions to critical infrastructure to ensure that any powers available to address this new type of emergency are sufficiently tailored to meet this very specific threat. Finally, the authors caution against revising the EA or broadening the definition of threats to the security of Canada in the CSIS Act based on the bad facts of the Freedom Convoy protests
Preface and Issue Overview
No full textThis issue of the Manitoba Law Journal is our annual Underneath the Golden Boy edition. This means that the contributions in this volume are largely focused on the actions taken by, and issues around, the legislative and executive branches of government, rather than focusing on the courts. In Andrew Flavelle Martin’s first contribution in this volume (“Loyalty, Conscience, and Withdrawal: Are Government Lawyers Different?”), the author considers the somewhat unique”” position of government lawyers when the client asks the lawyer to do something that the lawyer considers unethical. Martin believes that there are unique scenarios that can arise for government lawyers. He goes on to consider the obligations of the Attorney General when his or her Cabinet colleagues (or others within government) make demands of him or her that are inconsistent with the ethical obligations of the Attorney General as a lawyer, or which so violate the conscience of the lawyer that continued representation of the client becomes difficult or impossibl
Interview with the Honourable Steven Fletcher
No full textInterview conducted by Darcy MacPherson and Bryan Schwartz. The Honourable Steven Fletcher is a former Canadian politician and cabinet minister. He served in the House of Commons of Canada from 2004 to 2015, representing the riding of Charleswood—St. James—Assiniboia as a member of the Conservative Party. Fletcher made history as the first quadriplegic and wheelchair user to serve in the House of Commons and in Cabinet. Known for his advocacy work, Fletcher received the Queen\u27s Golden Jubilee Medal in 2002 and the Queen\u27s Diamond Jubilee Medal in 2012 for his contributions to society