Alberta Law Review (ALR)
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The Harms Caused: A Narrative of Intergenerational Responsibility
No full textBorn out of the Indian Residential Schools Settlement Agreement, the Independent Assessment Process is a program that provides monetary compensation to former students who suffered sexual and physical abuse at Indian Residential Schools. As “Canada’s Representative” during hearings of the Independent Assessment Process, this author, a young lawyer at the time, bore witness to grizzly accounts of acts perpetrated against claimants that left her unsettled. Unsettled by what was heard, yes, but also in her observations that the process did not satisfy the needs of all claimants, nor did it engage with her own sense of responsibility as a non-Indigenous Canadian.
The author weaves together her experiences and observations as “Canada’s Representative” to explore intergenerational justice in a Canadian setting, and what processes might offer a more complete approach in handling the Indian Residential Schools legacy. First, shecanvasses the existing framework of dispute settlement in the context of Indian Residential Schools, namely criminal, tort, and alternative dispute resolution mechanisms. While pointing out the strengths these mechanisms do have to address some of the harms of Indian Residential Schools, she ultimately suggests their inherent legal limitations make them inadequate tools to provide redress to victims and engage society more broadly.
The author goes on to define transitional justice, set out its established tenets and themes, and begins to map out a Canadian application of these principles to the Indian Residential Schools policy by drawing on examples from Australia, New Zealand, and the United States. These principles take shape as innovative instruments for advancing the goals of reconciliation and of Canadian society. They are not without their own flaws, however, as the author also points out, that may affect how Canadians—in particular, non-Indigenous Canadians—view their legitimacy.
Lastly, the author analyzes prevailing views of societal responsibility to provide a normative underpinning for intergenerational justice in a Canadian context. She concludes by advocating Canadians move from a stance of guilt and blame toward one of a broad assumption of responsibility as they continue to grapple with the legacy of Indian Residential Schools
Terrorist Speech under Bills C-51 and C-59 and the Othman Hamdan Case: The Continued Incoherence of Canada’s Approach
No full textIt is argued that neither the approach taken to terrorist speech in Bill C-51 nor Bill C-59 is satisfactory. A case study of the Othman Hamdan case, including his calls on the Internet for “lone wolves” “swiftly to activate,” is featured, along with the use of immigration law after his acquittal for counselling murder and other crimes. Hamdan’s acquittal suggests that the new Bill C-59 terrorist speech offence and take-down powers based on counselling terrorism offences without specifying a particular terrorism offence may not reach Hamdan’s Internet postings. One coherent response would be to repeal terrorist speech offences while making greater use of court-ordered take-downs of speech on the Internet and programs to counter violent extremism. Another coherent response would be to criminalize the promotion and advocacy of terrorist activities (as opposed to terrorist offences in general in Bill C-51 or terrorism offences without identifying a specific terrorist offence in Bill C-59) and provide for defences designed to protect fundamental freedoms such as those under section 319(3) of the Criminal Code that apply to hate speech. Unfortunately, neither Bill C-51 nor Bill C-59 pursues either of these options. The result is that speech such as Hamdan’s will continue to be subject to the vagaries of take-downs by social media companies and immigration law
Bill C-59 and CSIS’s “New” Powers to Disrupt Terrorist Threats: Holding the Charter-Limiting Regime to (Constitutional) Account
No full textIn 2017, the Liberal government released Bill C-59, which was its update to the national security legislation that was introduced by the previous government via Bill C-51. Bill C-59’s goal was to address the criticisms of its predecessor, including the new “kinetic” powers granted to the Canadian Security and Intelligence Service (CSIS) to actively disrupt threats to the security of Canada. While Bill C-59 made some improvements to ensure that CSIS’s new powers are exercised in accordance with the Charter, there are still deficiencies to be addressed. This article reviews the changes brought in with Bill C-59, examines how those amendments may not avoid constitutional challenge, and outlines what a section 1 Oakes justification may look like. Ultimately, to address the Charter implications of the new legislation, further changes are required, including the use of court-appointed special advocates to ensure an adversarial system and further oversight of CSIS’s new, disruptive authority
Novel Science or Oral History? The Admissibility of Co-Produced Information in Canadian Courts
No full textCo-production is an emerging source of information about the world, but it is one that has not been adequately theorized in the legal literature. Because co-production contains aspects of both novel science and oral history, it is not clear how it can be admitted. I argue that coproduced information does not clearly fit into either of the admissibility frameworks. With respect to the novel science framework, co-produced information fits into the criteria of testability, peer review, and standards with only a few problems, but would likely fail the general acceptance criterion of the test. However, if scientists are educated about co-production, or if it is possible to delineate a group of scientists who are more likely to accept co-production as the “relevant group,” then it may be possible for co-production to be admitted as evidence through the novel science framework. Turning to the oral history framework, co-produced information is less likely to be admitted because oral history is only a part, and not a necessary part, of co-produced information. As such, courts will likely be reluctant to bend the rules of evidence to admit it. Further research is needed to determine whether co-produced information can be admitted under the novel science framework
When Should Casinos Owe a Duty of Care Toward Their Patrons?
No full textWith the release of the Ontario Court of Appeal’s decision in Paton Estate, the possibility was left open for a casino to be found to owe a duty of care to patrons who gamble excessively. This article explores the circumstances under which the Anns/Cooper framework could be applied to find that such a duty exists. Specifically, where the gambler is a member of a casino’s customer loyalty program, thereby imputing knowledge of extreme gambling behaviour on the casino, and where the casino has no reason to believe the patron’s losses are sustainable, a duty of care should be imposed. Liability should follow in cases where the casino knowingly contributed to or deliberately ignored these losses
Litigating on One\u27s Doorstep: Access to Justice and the Question of Venue
No full textVenue rules govern the location where legal proceedings are commenced and where applications and trials are heard. These rules can hamper litigants from participating in legal proceedings, such as when they require a litigant to travel a significant distance to take part in a hearing or trial. The expense and time required for such travel is prohibitive for some litigants.
In this article, the author considers the extent to which the venue rules in Alberta hamper defendants from participating in three types of proceedings: mortgage default proceedings, residential eviction proceedings, and enforcement proceedings against a judgment debtor’s real property. The venue rules applicable to these proceedings raise serious access to justice issues because the defendants are commonly self-represented and are at risk of losing their homes.
This article argues that Alberta venue rules are somewhat responsive to the plight of defendants, but they could be revised to ensure that self-represented litigants, especially those of limited means, can participate in legal proceedings regarding their homes. Changes to the substance of the rules must be matched with changes to the practices by which these rules are invoked, because these practices create additional hurdles for the defendants
After the Hammer: Six Years of Meads v. Meads
No full textThis article addresses the phenomenon of Organized Pseudolegal Commercial Arguments (OPCA) through a retrospective investigation of Meads v. Meads. The author begins by discussing whether Meads has met its objectives, and then proceeds with an analysis of the response to the Meads decision by various audiences, including courts, academics, the OPCA community, and the public. Then, the author examines Meads as a unique type of judgment that incorporates court knowledge as its foundation, allowing Meads, in part, to offer guidance to trial court judges. Finally, the author comments on the insight offered by Meads into the day-to-day realities faced by trial courts as they interact with self-represented individuals
Forum Introduction: Bill C-59, An Act Respecting National Security Matters: What it Does and Why it Matters
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Financing Disputes: Third-Party Funding in Litigation and Arbitration
No full textThird-party funding is an arrangement where an entity with no prior interest in the merits of a dispute provides funding to a party involved in the dispute. Traditionally, this funding was specifically to assist the party to the dispute by financing its legal fees and costs and could be obtained in a number of ways, such as through insurance or loans from financial institutions. Third-party funding has seen significant growth and an increase in sophistication in recent years, resulting in a departure from this traditional model concurrent with the rise of commercial litigation funders whose entire business is providing non-recourse investment in disputes. This article explores both the changes in models of third-party funding — which can include some or all of: (1) paying for legal fees and disbursements, (2) indemnifying against the risk of an adverse costs order, (3) stepping in to provide security for costs, (4) providing working capital or portfolio funding for bundles of claims, and (5) the rise of institutional third-party financing in Canada. In particular, this article will explore some of the specific applications of third-party funding to the energy industry, including “David and Goliath” claims, claims involving state asset expropriation, and the use of funding as a tool for risk allocation in asset sales.
This article will also discuss the development and current state of the legal framework and case law in Canada with respect to third-party funding, along with third-party funding across different contexts and types of disputes. This includes the evolution of the law of maintenance and champerty and a discussion of key legal and ethical issues engaged by third-party funding arrangements including confidentiality, privilege, disclosure, conflicts of interest, and control of the dispute