Manitoba Law Journal
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Inquiries as Accountability Mechanisms in Times of Emergency
No full textThe Emergencies Act provides for a series of accountability mechanisms to compensate for the fact that a declaration of a state of emergency by the executive branch bypasses normal democratic processes, institutions and deliberations. One such accountability mechanism is the requirement in section 63 that an inquiry “be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” However, as currently drafted, section 63 is a source of considerable ambiguity, making it difficult to achieve the accountability objectives of the Emergencies Act. More precisely, it does not indicate that the inquiry must have appropriate powers or that it must be public or independent. The purpose of the inquiry is not clear, nor is it clear whether the government is authorized to further specify its mandate. And it is given a very compressed time frame to complete its work. In what follows, I discuss how these ambiguities open the door to the politicization of the inquiry, and suggest possible amendments to the Emergencies Act to strengthen this accountability process that is essential in a democracy governed by the rule of law, particularly in times of emergency
First Nations and Canada’s Emergencies Act
No full textCanada has legislated its commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This legislation requires Canada to reform its laws to be consistent with UNDRIP and to recognize Indigenous peoples’ right to self-determination. Little has been written on Indigenous peoples role in federal emergencies. Canada’s Emergencies Act and Emergency Management Act do not mention Indigenous peoples. As such there is no requirement for Canada to engage with, or report to, Indigenous peoples at times of emergencies in spite of the often devastating impacts on their people, territories, resources and infrastructure. This paper explores the ways that Canada can recognize First Nation jurisdiction and work with Indigenous peoples at times of emergencies. Experiences with forest fires, floods and invasion of the military provide lessons for how to reform Canada’s emergency laws. These reforms must be enacted through engagement with First Nations and with particular attention to capacity building, protocols and agreements for coordination and support. Canada’s emergency laws have an important role to play in implementing UNDRIP and the rights and title of First Nations in Canada. With so many natural disasters being caused by climate change, it is critical that First Nations play a strong role in Emergencies in their own territories
Leading by Example: The Jurisprudence of Chief Justice Richard J.F. Chartier
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In this article, lawyers for the Manitoba Court of Appeal analyze the jurisprudence of Chief Justice Richard J. Chartier, who served as the Chief Justice of Manitoba from 2013 until 2022. The article highlights his most prominent decisions and provides a jurimetric analysis of his appellate judgments. It also outlines his important contributions to the law regarding appellate standards of review, to the administration of the Court and to the broader Canadian judicial community through his work with the Canadian Judicial Council
Book Review of Robert Diab and Chris D.L. Hunt, Search and Seizure (Toronto: Irwin Law, 2023)
No full textBook Review of Robert Diab and Chris D.L. Hunt, Search and Seizure (Toronto: Irwin Law, 2023
Role Call: Can a Backbench Legislator Practice as a Criminal Defence Lawyer? A Legal Ethics Analysis
No full textLegislators come from a range of backgrounds. Many legislators happen to be lawyers. Parliamentary rules typically allow legislators who are not members of Cabinet to practice a profession part-time. However, the part-time practice of law poses special legal ethics challenges. In this article, we consider the legal ethics issues that arise when a backbench legislator of the governing party practices criminal defence law part-time. We argue that such a dual role engages three serious, unavoidable, and perhaps even unresolvable legal ethics issues. The first issue is the time constraints imposed by outside interests. The second issue is conflicts of interest, specifically the risk that the legislator-lawyer may favour their political future over their clients’ interests by soft-pedaling their advocacy to avoid embarrassing the government. The third issue is the duty to encourage respect for the administration of justice, i.e. the risk that Crown prosecutors may be, or perceived to be, pressured to give lenient treatment to the legislator-lawyer’s clients due to the possibility of retaliation. Thus, we recommend that legislators avoid this situation and law societies actively consider these issues
Chapter 12: “Camille Branchaud” – Identity Unknown
No full textDuring the 1930’s there were at least two other hangmen who were regularly hired in some provinces, as sheriffs turned away from the troublesome Arthur Ellis/Alexander Armstrong English. We have noted how Sam Edwards/Smith was active, and we turn now to a hangman calling himself Camille Branchaud, who had a much longer career than Sam Edwards/Smith who died in 1939. Branchaud also outlived John Ellis/Moore, who was the hangman for most of English Canada in the 1940’s. While Ellis/Moore was the official hangman in Ontario in the 1940’s and was hired by other provinces, Branchaud did attempt to compete with him. For example, we have archival evidence that he advertised his services to the Sheriff of Edmonton in 1944 attempting to get the hanging jobs that Ellis/Moore had in that province
Legal-Technological Unemployment in the Age of Artificial Intelligence
No full textThe paper investigates the issue of legal-technological unemployment in the age of artificial intelligence through the economic lens of the data-driven economy. Despite certain proper ethical concerns and debates supporting legal conservatism, the article shows that the transience and swift pace of changes are increasing, leaving the legal profession with the dilemma: pursue further economic prosperity or preserve legal conservatism under the threat of disruption. Historical, statistical and already live evidence give a lesson that favouring technology is cost-effective compared to maintaining legal conservatism, while current continuous practical implementation proves the now classic expression: “[t]he future is already here. It’s just not evenly distributed yet.”
In the article, I divide human and machine intelligence to suggest a new perspective on defining artificial intelligence, focusing on economic considerations. I show that the future of the legal profession has already arrived and constantly progressed in certain regions, indicating its inevitable expansion on a global scale. I demonstrate the dual role of a legal monopoly on the background of transient technological progress, highlighting its fragility and role as a barrier to new advancements. I delve into the dilemma of cold-blooded machines. I propose a regulatory solution and an educational response to artificial intelligence that will mitigate adverse economic ramifications and contribute to the legal profession’s further prosperity
Ushering in a New Era: Assessing the Reasonable Expectation of Privacy vis-à- vis Cryptocurrency and Blockchain Data
No full textIn recent years, the technology of cryptocurrency has become increasingly mainstream and has been documented as playing a role in the commission of contemporary criminal activity. The law must be responsive to these new techniques for committing crimes and adapt accordingly. Currently, there is a dearth of both jurisprudence and literature as it relates to section 8 of the Canadian Charter of Rights and Freedoms and the search and seizure of cryptocurrency by law enforcement. For the protections of section 8 to apply, there must be a reasonable expectation of privacy in the matter searched or seized by authorities. This paper analyzes the reasonable expectation of privacy as it relates to cryptocurrency in three different ways: first, in cryptocurrency transaction data on the blockchain, which is a public ledger that records cryptocurrency transactions; second, in various types of cryptocurrency storage mediums; and third, in user information on cryptocurrency exchanges. Previous section 8 Charter jurisprudence, U.S. case law, secondary sources, and blockchain data were all utilized to guide these analyses. Applying the reasonable expectation of privacy test to these inquiries yielded three distinct findings. It was determined that there is no reasonable expectation of privacy in cryptocurrency transaction data on the blockchain, that there is a reasonable expectation of privacy in various types of cryptocurrency storage mediums, and that there is a reasonable but diminished expectation of privacy in user information on cryptocurrency exchanges
Interview with the Honourable Richard J.F. Chartier
No full textThe Manitoba Law Journal is committed to preserving the voices of distinguished jurists from this province. In that context, we are honoured to present this issue. It includes reflections on his retirement by the Honourable Chief Justice Richard Chartier
Two Too Many Solitudes: First Nations Employment Law and the Unintended Effects of Wilson on Indigenous Employers
No full textDisputes over legal jurisdiction in Canada predate its own Constitution. Even after the 1982 repatriation of the Constitution, First Nations governance remains entangled in a jurisdictional divide. In the spirit of Indigenous self-determination, this article argues the impracticality of First Nations regulating themselves according to federal employment standards under the Canada Labour Code in preference of provincial or territorial standards. A review of jurisprudence since NIL/TU,O underscores the inconsistency of trial division and appellate courts across Canada in determining the appropriate jurisdiction for employment-law issues in First Nations communities. This incoherence leaves First Nations communities in a precarious position in regulating employment. An employer’s ability to consistently depend on the provincial and territorial regimes is imperative given the innumerable barriers already facing First Nations communities, particularly in an area of law where federal regulation is increasingly convoluted, demonstrated for example, by the judgment of the Supreme Court of Canada in Wilson. Counter-intuitive as it may seem, the otherwise far more generous federal employment standards have the effect of eroding the autonomy necessary for First Nations’ self-determination