Alberta Law Review (ALR)
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Criminal Justice Reform: A Transformative Agenda
No full textFew of the criminal justice system’s problems are new. Indigenous and racialized persons continue to be over-represented in the criminal justice system. Pretrial detention rates have increased significantly during the past 30 years. The criminal law is still used to regulate social problems — poverty, homelessness, and substance use — that it cannot fix. Although law reform happens with some frequency, these underlying problems persist.
This article advances a transformative agenda for criminal justice reform. It argues that law reform fails to address three mutually reinforcing features of the criminal justice system that exacerbate its persisting problems. First, reform efforts accord insufficient importance to rehabilitation and reintegration. Second, reform initiatives do not address the growth of police powers that lack adequate transparency and oversight. Third, existing reforms ignore how the justice system increasingly allocates power towards prosecutors and the police, while removing that power from judges.
This article’s core argument is that the criminal justice system must be completely transformed in order to address its underlying issues. It contends that meaningful criminal justice reform must take place across four dimensions: (1) substantive criminal law reform; (2) sentencing reform; (3) criminal procedure reform; and (4) institutional reform. It concludes by providing an agenda for criminal justice reform, which includes a set of concrete proposals in each of these four dimensions. Ultimately, this article shows why transformative law reform is necessary to treat individuals with greater dignity, foster rehabilitation and reintegration, and combat the criminal justice system’s worst tendencies
Dale Gibson: Scholar, Teacher, Lawyer, and Man of Principle
No full textWhen I was invited to speak at the March 2020 Alberta Law Review Annual Reception, I decided to talk about Dale Gibson, my friend, mentor, and former colleague. I wanted to do so because I believe his contributions to the law have sometimes been overlooked. I was delighted that Dale and his spouse, Sandra Anderson, would be able to attend the Reception so that I could celebrate Dale in person. Then, the event was cancelled because of the COVID-19 pandemic.
So everything was rescheduled for March 2021. This gave me time to further develop my remarks and turn them into this article. Then the 2021 Reception was also cancelled because of the pandemic. Dale’s health was deteriorating so I gave him a draft of the article for review and comment. This resulted in a lovely visit with me, my spouse Robert, and Dale and Sandra where we shared many memories. And, of course with Dale, to still receive some insightful comments on the draft despite his health.
Dale passed away at the age of 88 in January 2022. So, while he never got to hear me pay tribute to him, he did get to read a draft of the article.
In this article I have attempted to provide an overview of some the qualities that infused Dale’s work, and in that way introduce readers to some the areas of his legal scholarship and practice. In the two appendices I also include two selected lists: his professional contributions and his publications. However, I realized in writing this abstract after Dale’s death that the article does not introduce you to the decent, kind, humble, generous, curious, and joyful person that was Dale. To learn more you will have to attend the Alberta Law Review Annual Reception in 2023 (since the 2022 one was also cancelled because of the COVID-19 pandemic).
I am so grateful that I got to know Dale. I met him while an articling student at a large private law firm in Edmonton, and worked with him there. After he left to start his own boutique constitutional law firm, he asked me to join him. Joining Dale was the hardest and best decision of my career. I would not be where I am today, had I not done so.
The following does not do Dale justice, but it is a beginning
Bankruptcy and Insolvency as an Expanding Field: A Historical Analysis of Reference Re Debt Adjustment Act, 1937 (Alta.)
No full textThe drought of the early 1920s and the economic collapse of the 1930s caused unprecedented problems for farmers in Alberta. Low prices and poor markets caused farmers to become overindebted. Parliament’s response to the situation was the Farmers’ Creditors Arrangement Act, 1934 (FCAA), which was intended to create an alternative mechanism to bankruptcy through which farmers could negotiate debt compromises with their creditors. Parliament viewed the situation as a temporary issue, and the FCAA reflected this assumption. In contrast, the prairie provinces sought long-term debt adjustment legislation for farmers and other debtors affected by the Great Depression. In Alberta, two reformist social movements created new legislation to alleviate the debt burden in the province. The United Farmers of Alberta created the first Debt Adjustment Act (DAA) in 1923 to address the issue, which was then modified and expanded in the later 1930s by the new Social Credit government. However, in its attempt to create a robust debt adjustment scheme, the Social Credit government created a regime which overstepped the bounds of provincial jurisdiction. In 1941, Alberta’s DAA was referred to the Supreme Court of Canada where it was decided that the DAA was ultra vires the province as legislation on bankruptcy and insolvency, an area reserved exclusively for the federal government. The decision was upheld by the Privy Council in 1943. This article outlines the historical context of the DAA, the basis for its invalidity, and argues that the impact of the reference decision was the affirmation of a broad construction of the federal bankruptcy and insolvency power
Gamete Donor Anonymity: What\u27s Privacy Got to Do with It?
No full textIn Canada, gamete donor anonymity is tacitly protected in the absence of laws or regulations that explicitly address the topic. This article explores and characterizes the historical and contemporary role of privacy, as a publicly protected legal interest, in the context of gamete donation. Ultimately, this article argues that anonymous gamete donation is not supported by the principle of privacy in Canadian law. The argument proceeds by identifying and exploring three candidate rationales for gamete donors’ interests in privacy as referenced in past and current government reports, legislation, and case law, but ultimately reveals them as wanting and unfounded from a legal standpoint. The implication of this is that the protection of donor anonymity cannot find support in appeals to donors’ privacy interests, and that the legal defensibility of the practice — if it can be defended at all — must be found elsewhere
Pentalogy: Recommendations for Reform of the “Seller In Possession” Statutory Regimes of Alberta, British Columbia, Northwest Territories, Nunavut, and Saskatchewan
No full textThis article concludes a five-part series of articles dedicated to the exposition of and improvement to “seller in possession” disputes in common law Canada. Alberta, British Columbia, Northwest Territories, Nunavut, and Saskatchewan most appropriately define the risk that a buyer is exposed to when they leave bought goods in the seller’s possession. These provinces and territories also offer the most suitable registration facilities for the protection of the buyer’s non-possessory interest in the goods.
Therefore, this article focuses on the scope of registration-based protection and the eligibility in these provinces and territories for registration-based protection with respect to buyers who leave bought goods in the seller’s possession. Legislators in these provinces and territories should not expand eligibility for registration-based protection to conditional buyers out of possession. Additionally, registration-based protection should only be extended to a conditional buyer out of possession if the Sale of Goods Act in these jurisdictions is modernized in a manner that places less emphasis on title and the nemo dat principle
The Federal Court of Appeal and the Federal Court: 50 Years of History, Martine Valois, Ian Greene, Craig Forcese & Peter McCormick, eds. (Toronto: Irwin Law, 2021)
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Private Records, Sexual Activity Evidence, and the Charter of Rights and Freedoms
No full textIn December 2018, Parliament amended the Criminal Code to add a new regime dictating the process and admissibility criteria for private records in the possession of an accused in a sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the Ghomeshi Rules – are unconstitutional. The problem with these decisions is that, in each one, the court has failed to properly balance the competing interests at stake. Stated most plainly, each of them overstates the impact of these provisions on the accused’s right to a fair trial and understates the competing interests to be balanced in an analysis of the constitutionality of these new laws. This article confronts two problematic aspects of the assessment of the impact on the accused’s rights in these cases: hyperbolic assertions about the impact of notice to the complainant on the right to cross-examination and assumptions about the impact of disclosure to the complainant on the truth-seeking function of the trial. This analysis is done, in part, through a case study of the trial transcript in R. v. Ghomeshi because several of these cases appear to have been litigated or adjudicated in the shadow of Ghomeshi. The article concludes with an assessment of the competing interests that must be balanced with the accused’s right to a fair trial: the complainant’s privacy, equality and dignity interests, and the societal interest in encouraging survivors to report sexual offences
The No More Pipelines Act?
No full textOn 28 August 2019, both the Impact Assessment Act (IAA) and the Canadian Energy Regulator Act (CERA) came into force, and Canada’s environmental assessment process and its regulatory regime for major energy projects were fundamentally changed. With this new legislation in place, is it fair to say that no new pipelines will be approved in Canada? The answer is likely yes but not solely or even largely as a result of this legislation.
Changes in global oil markets have led to significant reductions in forecast production from Alberta’s oil sands. This implies that, with no new pipelines permitted, and assuming those with permits in hand are built, the network will be sufficient to cover forecast oil export demand well into the 2030s. As such, there is a tautological answer to whether new pipelines will be approved in Canada: they likely will not be, unless market conditions change substantially, because new pipelines beyond those currently approved will not be needed.
Tautologies notwithstanding, Canada’s new regulatory regime represents a significant departure from previous legislation. This article asks whether it is likely that a new pipeline project could achieve approval under the combined process implemented in the CERA and the IAA. The answer is complicated but likely turns on two issues already prevalent in Canada’s pipeline debates. The first issue facing any new pipeline review would be the ability to reconcile such development with Canada’s responsibilities to Indigenous peoples. The second is the collision between Canada’s climate change commitments, cumulative local environmental effects, and new oil sands production enabled by new pipelines. While approval has been — and will continue to be — a political decision, the analysis presented herein shows that the combined consideration of cumulative environmental effects, greenhouse gas emissions, and the link between pipelines and oil sands growth is likely to make it more difficult to approve a pipeline. This is because, when combined with recent changes to judicial review doctrine in Canada, the new regime will make it much more difficult for regulators and political decision-makers to justify such approvals
Mandatory Childhood Immunization Programs: Is There Still a Role for Religious and Conscience Belief Exemptions?
No full textChildhood immunizations are a vital component in controlling and stopping the spread of diseases. In recent years, we have seen an increase in anti-vaccine sentiment and, as a result, the rise of vaccine-preventable disease. We are also now living through a global pandemic in which COVID-19 vaccines are required for society to return to pre-pandemic normalcy. Childhood immunization programs are vital for public health. This article examines childhood vaccination programs and the use of exemptions in such programs. The article analyzes the constitutionality of religious and conscience belief exemptions in vaccination programs and highlights their applicability in terms of both routine childhood immunizations and in the case of COVID-19 vaccines. The article ultimately proposes ways to restructure religious and conscience belief exemptions and provides guidance on how to move childhood immunization programs forward in the COVID-19 era