Manitoba Law Journal
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Coordination Failure, Pandemic Prevention, and Political Polarization in Global Perspective
No full textThe aftermath of the February 2022 public order emergency in Canada offers a timely opportunity to modernize the Emergencies Act and revisit the coordination imperative with the complexity of global emergencies squarely in mind. The failure to coordinate globally in the early stages of the Covid-19 outbreak, despite a vast repository of knowledge of how to do so—set against the backdrop of increasingly polarized politics and geopolitics—transformed an avoidable public health emergency into multiple humanitarian, economic, social, and political crises. This short article highlights Commissioner Rouleau’s focus on coordination failure throughout his report. It then situates the public order emergency in a global perspective, focusing on pandemic preparedness and the polarized political context that framed it. The goal of this essay is to stress the importance of viewing emergency powers holistically, and to advocate reading the Commissioner’s recommendations not in isolation, but as a small and partial response to a wicked—or super wicked—problem of global proportions
Zora , the Charter , and the Youth Criminal Justice Act : Defending the Rights of Youths is the Responsibility of all Court Participants
No full textIn R v Zora, the Supreme Court of Canada underscored the responsibility of all participants—the defence, the Crown, and the presiding judge—to uphold section 11(e) of the Charter. While the discussion in Zora was within the context of the bail system, there is no reason that the notion that all court actors bear a responsibility to uphold the Charter does not apply more broadly throughout criminal law. This essay posits that, like in Zora, the same broad, multi-actor responsibility extends to all Charter rights and that these shared responsibilities are especially critical when dealing with the rights of youth.
For more than a century, Canada has dealt with youth criminal matters separately from adults. This is partly due to the inherent and heightened vulnerability of young people that come before the court. The enhanced procedural protections of the Youth Criminal Justice Act (“YCJA”) and the careful attention to the Charter rights of young people are central to the proper functioning of youth court system in Canada.
The purpose of this essay is to embark on a broad exploration of common Charter considerations in the practice of youth criminal justice and to tie these Charter considerations to the SCC’s message in Zora—that all court participants bear a responsibility to uphold the rights of youths. The topics covered herein represent a non-exhaustive list of Charter issues that arise within youth proceedings. The focus is on issues unique to youth criminal justice, to the extent that that is possible.
While this essay primarily addresses sections 7, 9, 11, 12 and 15, it is important to note that youths regularly face the same issues as adults that fall under other sections of the Charter, particularly section 8. However, given that the focus of this work is on the unique rights or interpretations of rights afforded to youths, Charter issues that apply equally to all accused, regardless of age, are not covered in this essay. While section 8 concerns are routinely raised in youth criminal proceedings, their substance is not sufficiently distinct from adult matters to be addressed herein.
Ultimately, this essay seeks to convey the urgent message that the defence of the Charter rights of youth is crucial to the healthy functioning of a youth criminal justice system, and that all participants are obligated to work towards that purpose
Interview with Cynthia Lazar
No full textInterview conducted by Bryan Schwartz and Jodi Plenart. Note that this interview was conducted on August 3, 2021.
 
Body Worn Cameras (BWCS): Privacy vs Solid Evidence
No full textThis paper will explore the dichotomy between the privacy concerns associated with the use of Body-Worn Cameras (“BWCs”) by law enforcement agencies, and the benefits associated with this technology, such as the evidential value of the BWCs video, audio, and images as reliable forms of evidence assisting courts and criminal justice players in making substantiated decisions and reaching just verdicts. The paper will provide a background overview of BWCs and the approach to their use in some Canadian jurisdictions, followed by a discussion on Canada’s struggles guarding the privacy of Canadians and the recent breaches of privacy conducted by the Royal Canadian Mounted Police (“RCMP”). Next, there will be a case-study section exemplifying the numerous flexible features and benefits of BWCs and produced digital evidence used in courts and police operations, followed by a section addressing the rule of law and the need for punishing police misconduct for mishandling highly sensitive information (such as that captured by BWCs). Lastly, the paper will reflect on its findings, discuss existing tensions, and propose a path forward for the safe and broad implementation of BWCs across Canada
Cover Artist\u27s Statement
No full textThis work is inspired by many of the public displays of Justice in Manitoba including Augustus Vincent Tack’s mural in the Manitoba Legislative Building1 and Gordon Reeve’s kinetic display Justice outside the Manitoba Law Courts at 408 York Avenue embodying the scales of justice. Within the Canadian legal tradition Lady Justice has been an enduring symbol. She is often depicted as a blindfolded, sword-wielding, toga-wearing, balance-scale aficionad
Interview with Dave Wright
No full textInterview conducted by Bryan Schwartz and Natasha Ellis on February 25, 2022
Interview with Kris Saxberg
No full textInterview conducted by Bryan Schwartz and Shira Brand. Kris Saxberg is a partner at Cochrane Saxberg Johnston Johnson & Scarcello LLP. He studied law at the University of Manitoba and was called to the Bar in 1999. Kris is an experienced trial lawyer who has argued at the Supreme Court of Canada, the Federal Court of Appeal, the Alberta Court of Appeal and in all levels of court in Manitoba. He has acted, and continues to act, on behalf of many Indigenous organizations, including indigenous CFS Agencies, advocacy groups and political organizations
Preface
No full textThis issue of the Manitoba Law Journal is focused on online dispute resolution, or ODR. This issue is the second installment of a three- part series examining how the Canadian legal system adapted to the COVID-19 crisis. The first was 46.1 Canada’s Emergencies Act: Beyond the Roulou Report. The third issue will explore decision-making during the crisis by our most senior elected leaders in Manitoba
Virtually Similar? Considering the Potential for Virtual Jury Trials in Canada During and After the Pandemic
No full textThe World Health Organization declared COVID-19 as a global pandemic on March 11, 2020.1 Naturally, the health crisis resulted in a number of jurisdictions reacting to and adjusting their criminal justice processes in a fastidious manner; the US, UK, Brazil, China, India and Singapore, all, for example, embraced immediate technological adjustments. In Canada, though, at the outset, virtually all jurisdictions paused in the context of criminal jury trials. Of course, the Canadian reaction makes sense, given that jury proceedings are plagued by a number of technical complexities in addition to the normal course of administration of criminal justice.
Jury selection itself is an exceptionally long process that takes time and requires state officials to engage in assessments of logistics. Further, jury trials notoriously take longer to complete than trials without a jury, including numerous applications and voir dires that may well require juries to move in and out of courtrooms as part of the regular course of the trial. Much as is the case with regular trials, counsel and client will engage in close communications, and victims and families will want to attend. In more notorious cases, media will wish to be present and, in general, the “open court” ideals of the Canadian process would suggest that the process remain accessible and open to the public. Certainly, in a new world order of social distancing, quarantining, mask-wearing, disinfection, and infection pre-emption, criminal-jury processes serve as reminder of how personal, interactive and intimate these proceedings can be, and the initial Canadian response was a logical one.
Yet the longer the delays held, the more that justice officials and the judiciary would certainly worry about access-to-justice issues. Time-to-trial ceilings set in recent jurisprudence would certainly be troubled by a jury pause. Indeed, some scholars used the moment in time to raise issues about the necessity of jury trials at all, despite the codification of jury trials in the Charter.
To take a snapshot of the state of Canadian jury trials is a somewhat complex matter. Jury trials do not result in reported decisions, except to the extent that they are mirrored in sentencing decisions or appeals, and, on occasion, written voir dire rulings. Further, COVID has stalled access to court documents and transcripts ordered by researchers, such that any deep dive into the work of juries during COVID would be delayed by months and even perhaps as far as into the recovery phase of the pandemic. Further, ordering these transcripts would cost thousands of dollars of expenditure in court-mandated transcription fees, beyond what would be feasible in the service of an academic explication of the jury pause.
Fortunately, media and professional publications dutifully reported on the important events that occurred during the pause and subsequent slowdown of criminal jury trials, and when studied comprehensively, we can embark on the task of asking: What did the state of play of criminal jury work look like after the initial months of pandemic-induced lockdowns? In part, that is one of the questions we seek to answer in our analysis. The second question we seek to answer is: What challenges face jury work in a post-COVID justice landscape, one where the use of technology will likely lead to important questions about justice efficiency and the benefits of digital innovation in the criminal justice process?
 
Interview with Pamela Leech
No full text Interview conducted by Bryan P. Schwartz and Laura Balagus. This interview was conducted on August 5, 2021