Manitoba Law Journal
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Keynote Address From the Retirement Gala for the Chief Justice of Manitoba, Richard J.F Chartier
No full textRemarks by the Right Honourable Richard Wagner, P.C. Chief Justice of Canada
Getting Rid of the Riot Act
No full textThe Canadian Criminal Code retains a version of the “Riot Act,” an 18th-century law empowering officials to proclaim a tumultuous assembly unlawful, creating offences for failing to peaceably disperse, and providing unqualified immunity to persons enforcing the proclamation. We contend that the Riot Act is not only antiquated, ineffective, and unnecessary but also that the provision of absolute immunity for state actors who use unnecessary violence is inconsistent with sections 7 and 12 of the Canadian Charter of Rights and Freedoms (“Charter”). Given these unconstitutional effects and the riot act’s limited utility, we advocate for its repeal
Legal Ethics for Government Lawyers: Lessons from Nunavut
No full textWhile government lawyers face legal ethics issues unique to that practice context, those issues are overlooked in the rules of professional conduct in all but one Canadian jurisdiction: Nunavut. In this comment, I canvass several provisions that are unique to the Code of Professional Conduct of the Law Society of Nunavut. These provisions are inexplicably overlooked in the Canadian legal ethics literature to date. I then assess how these provisions address the legal ethics issues unique to government lawyering. Finally, I argue that the Nunavut provisions should be considered a starting point and I consider additional changes that could be made to further recognize the realities of government lawyering
Preface and Issue Overview
No full textThis issue of the Manitoba Law Journal is a continuation of our “The Current Legal Landscape” series. The contributions featured in this edition deploy a range of methodologies to address some of the most fundamental issues in our legal system
Crown Attorneys, The Attorney General, and Judicial Discipline: A Comment on Lauzon v Ontario (Justices of the Peace Review Council)
No full textShould the consequences for judicial misconduct be different depending solely on the identity of the person who makes a complaint? In a surprising decision, the Ontario Court of Appeal in Lauzon v Ontario (Justices of the Peace Review Council) holds that dispositions downstream from complaints by Crown attorneys (or any other member of the executive branch of government) should be lower than other dispositions because the vindication of such complaints is inherently dangerous to judicial independence and the separation of powers. In this comment, I look closely at the reasoning in Lauzon and respectfully suggest that that reasoning is problematic. In particular, I note that judicial councils operate independently and that Crown attorneys are subject to high standards as identified both by courts and by law societies as their professional regulators. I also suggest that the identification of this novel proposition was unnecessary to decide the appeal
The Effect of R. v. Morrison on Sexual Assault Law: Is the Reasonable Steps Requirement an Articulation of Mens Rea or a Statutory Bar on the Defence of Mistaken Belief?
No full textThe Supreme Court of Canada’s interpretation of the reasonable steps requirement for the offence of child luring in R. v. Morrison has undermined the law of sexual assault. Appellate courts have applied Morrison to sexual assault cases, insisting that the fault element for sexual assault is purely subjective. Accordingly, these courts have held that the accused’s failure to take reasonable steps to ascertain consent does not inexorably prove the mens rea for sexual assault. This result undermines reforms to sexual assault law, creates needless analytical complexity, and violates the presumption of innocence. All of these deleterious results can be avoided if courts interpret the mens rea for sexual assault as a subjective-objective standard of fault. However, Morrison stands squarely in the way of this simple solution. The Supreme Court’s interpretation of the reasonable steps requirement in Morrison cannot be distinguished from the reasonable steps requirement for sexual assault. Furthermore, as a matter of horizontal stare decisis, the Supreme Court is unlikely to overturn Morrison despite its flaws
Chapter 10: “John Ellis” – His Hanging Career
No full textChapter 10 “John Ellis” – His Hanging Caree
Public Order Policing: a Proposal for a Charter-compliant Legislative Response
No full textThis article offers a brief response to the Final Report of the Public Order Emergency Commission by two authors who provided expert reports to the Commission. We focus on Commissioner Rouleau’s recommendation that the provinces and the federal government create a “major event management unit” to ensure “integrated command and control” of large events, and that governments clarify the scope of police power to create exclusion zones and to impose other limits on protest and assembly. We argue that nothing short of legislation on point would suffice to address problems of coordination among police agencies and the lack of clarity on public order police powers that arose in Ottawa and in other large events over the past two decades. We emphasize the need for public order legislation to address and protect the Charter rights of protestors, especially and including freedom of peaceful assembly
The Problem of Threshold in the Emergencies Act – A Triple Incapacity Model
No full textThis paper argues that the framing of the threshold for declaring a national emergency in section 3 of Canada’s Emergencies Act reproduces an unhelpful anxiety that is commonplace among theorists and practitioners of emergency powers — namely: the concern that unexpected catastrophic events require exceptional, ungovernable powers to handle them. Section 3 defines the thresholds for a national emergency within a triple-incapacity framework: incapacity on a provincial level (or) incapacity on a federal level (and) legal incapacity. On the face of it, this framework creates a very high threshold for the declaration of emergencies, but it also reproduces a language of exception that orients officials and the public towards the very extreme case in which competence is lost. This is an incongruous framing – it is responsible for ambiguity and endless quarrels about whether there is “no other law” and “no other capacity”, evading the purpose of emergency government which should be focused on capacities: the ability to construct and reconstruct — regularized, coordinated, multifaceted, multijurisdictional emergency management capabilities