Manitoba Law Journal
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Vitiating Consent for Sexual Assault Causing Bodily Harm: Should Jobidon Apply to Sexual Activities?
No full textThe Court in R v Jobidon held that consent to participate in a fist fight between adults is vitiated once bodily harm follows as a result of the fist fight. Jobidon’s ruling fundamentally altered the defence of consent to assault. This paper critiques the extension of Jobidon to sexual assault in the context of BDSM in R v Welch on multiple grounds. First, the paper shows that there are complexities in applying Welch’s ruling, which have led to confusions in jurisprudence surrounding: (a) the mental state of the assailant causing bodily harm; (b) the addition of psychological harm as a bodily harm to the scope of the ruling in question; and (c) the characterization of the sexual activity in question as degrading or dehumanizing. Second, the paper challenges the Court’s reasoning in Welch on three grounds. First, characterizing a sexual activity as degrading to show that it is not worthy of protection by the law is subjective. Instead, the courts should assess the interests of sexual minorities. Second, the Court’s comparison of sex with sport was inappropriate in finding the former containing insufficient social utility as opposed to the latter. Third, irrespective of political philosophy, the Court’s ratio was contrary to the letter of law pursuant to section 9 of the Criminal Code by effectively creating a new law. This paper advocates for legal reform in Jobidon and applying it to sexual assault. The paper positions that Parliament has already taken steps to criminalize high-risk sexual activities such as asphyxiation under section267(c) of the Criminal Code
Racializing Terror: Reassessing the Motive of the Motive Clause
No full textThis paper reviews the legislative history and application of the Criminal Code’s definition of terrorist activity to trace how the “motive clause” reinforces systemic racism within Canada’s criminal justice system. By outlining this process, this paper argues that the motive clause contributes to a dynamic that racializes terror offences as a specific type of criminal offence committed by racialized individuals—marking terrorism as a unique social characteristic of racialized communities. This occurs mainly due to the legislative requirement to prosecute the ideas of accused persons, which, in practice, has increased the likelihood of courts admitting otherwise prejudicial evidence against the accused and the problematic ways in which expert evidence has (or has not) been used in terrorism trials. Although discrimination may not be an inevitable or intended outcome of the drafted legislation, it creates a framework that encourages discriminatory prosecutorial strategies, facilitates bias in the admission and treatment of some evidence, and potentially contributes to the exclusive use of the provisions against racialized communities specifically
Saving the Farm: A Comparative Analysis of the Farmers’ Creditors Arrangement Act in Manitoba and Ontario
No full textThe Great Depression and Dust Bowl of the 1930s caused great hardship for many Canadian farmers, especially in the Prairie Provinces. In response to falling prices and crop yields, as well as increasing debt levels, Parliament enacted the Farmers’ Creditors Arrangement Act (FCAA). The mandate of the bold, new statute was to keep farmers on the land by reducing and rescheduling debts to suit the productive value of the farmland and the capacity of the farmer to pay. There is little academic scholarship that examines the FCAA and how it functioned in practice. This article builds on an earlier pilot study of FCAA case files in two Manitoba counties and widens the empirical lens to consider applications from several more Manitoba counties as well as two Ontario counties. It offers the first analysis of how the FCAA operated in Ontario, employing both quantitative and qualitative data to provide a rich commentary, using examples of actual farmers. The analysis reveals that the application of the FCAA was strongly influenced by local, county-level factors. Rather surprisingly, there were few factors that can be attributed to differences between the two provinces more generally, notwithstanding the fact that there are notable variations in farming practices, operations, and conditions in Ontario, a non-prairie province, and Manitoba, a prairie province. A secondary finding is that, in general, the compromises formulated under the FCAA were highly tailored to the individual farmer’s circumstances. However, there were nevertheless pockets of case files where a fairly uniform approach was used to resolve the financial hardship of farmers who were, seemingly, all in quite similar circumstances. Accordingly, the picture that emerges is complex. FCAA practice evinces stark contrasts — generating compromises which could be either bespoke or boilerplate — and limiting the extent to which one can generalize based on the empirical data from individual counties or regions
Hybridity and Precarious Personhood: Limited Partnerships and Indigenous Economic Development
No full textIndigenous governments in Canada use sophisticated corporate structures to achieve their various economic development goals, of which the limited partnership is most certainly the most common. In a series of recent cases on the personhood of both Indigenous parties and on limited partnerships, courts have been redefining the relationship of personhood and property in the context of limited partnerships. This article canvasses developments in the case law of the personhood of Indigenous peoples alongside similar developments surrounding the nature of limited partnerships, raising questions about the ways that Indigenous governments may be further constrained by formerly unidentified colonial aspects of the law, as well as to identify specific issues that both general and limited partners need to confront before turning to this common business vehicle . The paper closes with some observations about colonial trends in the law governing the use of associations and business structures, posing questions for future research about the policy objectives at play
Wage Restraint in Manitoba: Is Freedom “Just Another Word For Nothing Left To Lose”?
No full textFederal and provincial governments have, over the last 50 years, passed legislation from time to time freezing the wages of public sector workers, but their power to pass such legislation has become both murkier and more constrained over the past 15 years due to the Supreme Court of Canada’s evolving jurisprudence on the right to collective bargaining under the Charter. The recent experience of the Government of Manitoba with the Public Services Sustainability Act is illustrative. This article analyzes the latest wage restraint regime in this province, the Manitoba Court of Queen’s Bench decision that declared it unconstitutional, and the Manitoba Court of Appeal decision that reversed the ruling of the lower court. Three interesting aspects of Manitoba’s experience with a potential s. 2(d) Charter breach are examined in detail: the necessity to consider government action in addition to legislation; the requirement to incorporate the lack of consultation and negotiation into the analysis; and the need to examine the impact of the overall wage restraint scheme on bargaining power. These three issues are extremely relevant to policy-makers considering the implementation of wage restraint legislation, and to the litigation currently underway in other provinces, such as Ontario
The Quixotic Belief in Corporate “Unicorns”: A Review of Bad Blood: Secrets and Lies Inside a Silicon Valley Start-Up
No full textA Review of Bad Blood: Secrets and Lies Inside a Silicon Valley Start-Up
Lawyers’ Incivility in Family Law and the Question of Systems Abuse
No full textFamily law has a reputation for incivility, which is curious given that ideas about civility are vague and imprecise. The legal profession experienced a civility movement, but concerns about lawyers’ incivility have resurfaced following the COVID-19 pandemic. In this paper, I present the results of a case law review which does not support family law’s reputation for incivility. Instead, however, the results show three significant problems. Incivility is not commonly reflected in law society disciplinary or family law decisions, but when it is, the misconduct is extreme or part of a cumulative pattern, suggesting a high threshold. Second, when incivility occurs in family law, it is often in cases where there are allegations of intimate partner violence (“IPV”), raising questions about lawyers’ incivility as a tool of systems abuse. Finally, there are worrying cases of lawyers representing themselves in their own family law matters which also involve findings, allegations, or suggestions of IPV. These results demonstrate that civility, as a vague and imprecise concept, has the power to distract decision-makers and shift the focus from abuse to professionalism, contributing to the myriad ways the justice system fails survivors. I argue that, where there is IPV, lawyers’ incivility on behalf of an abusive client (or themself) amounts to systems abuse, which is something lawyers must not participate in because it is contrary to their duty to uphold the rule of law and violates lawyers’obligations to the administration of justice
Chapter 4: "John Radclive”: His True Identity as Daniel James Ratley
No full textChapter 4:"John Radclive”: His True Identity as Daniel James Ratley
The Dangers of Police “Operational” Independence
No full textPolice “operational independence” is an overbroad and confusing term. Moreover, the idea that those who govern the police have no role in anything that can be characterized as police operations was significantly to blame for the policing failures that led to the use of the Emergencies Act in February 2022 to clear the Ottawa occupation. The first part of this article examines the origins and meaning of police independence. It suggests that there is a growing consensus on limiting the ambit of police independence to the exercise of law enforcement discretion. The second part examines the juridical statute of police independence. It concludes that police independence limited to law enforcement discretion is an important constitutional principle and principle of fundamental justice. The third part argues for the codification of such limited law enforcement police independence in all Canadian policing acts. The Ottawa policing failures demonstrates that Justices Morden’s and Epstein’s attempts to limit the ambit of police operational in Ontario legislation have not been successful. Clear legislative definition of police independence as only applying to law enforcement decisions such as those relating to investigations, arrests and prosecutions is necessar
Chapter 2: “John Radclive”: “Riding High” During the First Decade, 1890-1900.
No full textIn the twenty-year period from 1890 through 1909, there were 110 hangings in Canada. Of those, 80 were performed by a man calling himself John Radclive, who would become the first “official” hangman for Canada. While he called himself Radclive, the newspapers over the years called him Thomas or John Radcliffe. While we will use the name Radclive, his real name, as we will eventually outline, was Daniel James Ratley, or as it sometimes was spelt, Rattley