Alberta Law Review (ALR)
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Imperial Tobacco and Trial Lawyers: An Unstable and Unsuccessful Retreat
No full textThe Supreme Court of Canada established an architectural model of the Constitution through the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island and the Reference re Secession of Quebec. This model has an informing core of “organizing principles” engaging both written and unwritten rules. These two decisions and earlier landmark rulings have used unwritten principles to reach dramatic conclusions. Yet, the Supreme Court departs from this line of authority in Imperial Tobacco in which a strong textual approach is taken. The author argues this decision led to instability in constitutional doctrine that was further complicated in Trial Lawyers. This article explores the strengths of the Judges Reference and the Secession Reference and the need to uphold the use of unwritten constitutional principles while calling for the Imperial Tobacco case to be set aside
Measuring the Impacts of Representation in Legal Aid and Community Legal Services Settings: Considerations for Canadian Research
No full textThere is currently a gap in Canadian empirical research examining the impacts of legal representation in legal aid and clinic settings. This article advocates for addressing the research gap and suggests how such research could be pursued. Empirical data is crucial to making the case for ongoing investments in publicly funded legal assistance and to ensuring the effectiveness of such assistance. Yet current research, mainly from American studies, tends to focus narrowly on litigation outcomes. This leaves many aspects of the impact of legal representation unclear, particularly regarding service delivery for vulnerable and marginalized clients. Research must examine clients’ own experiences and perspectives of legal processes so as to better reflect the complex relationship between legal representation and justice
A Call to Action: Moving Forward with the Governance of Artificial Intelligence in Canada
No full textThe Government of Canada has committed to accelerating the growth of the country’s world-class artificial intelligence (AI) sector. This emerging technology has the potential to impact nearly every segment of Canada’s economy, including national security, health care, and government services. To prepare for the key challenges and opportunities that AI will give rise to, we offer an innovative governance model for Canadian governments to adopt. This model recognizes the uncertainty ahead and prioritizes oversight and accountability while also encouraging a flexible policy-first approach. This approach fosters responsible AI innovation and supports Canada’s emergence as a leader in AI technology and governance
The Road Not Taken: Missing Powers to Compel Decryption in Bill C-59, Ticking Bombs, and the Future of the Encryption Debate
No full textIn the fall of 2016, Canada’s Liberal government published a Green Paper canvassing public opinion on changes to national security law. The Paper explored the possibility of new powers to compel third parties to assist with decryption, framing the discussion around a terrorism plot analogous to a ticking bomb hypothetical. The public did not support new decryption powers, and Bill C-59, now before Parliament, does not include them. This article revisits the Green Paper to shed light on deeper fault lines in debates about whether police should have a power to compel decryption. The Green Paper points to illuminating parallels between arguments for compelled decryption and for torture. The strongest arguments for each make use of ticking bomb scenarios. While the arguments have attracted much criticism, they remain plausible and undermine key assumptions of those opposed to compelled decryption.
Part II of this article traces two common arguments for why state agents seek powers to compel a third party to decrypt: for justice (to secure convictions) and public safety (to prevent terrorism and other serious offences). Opponents cast doubt on the first claim by pointing to many alternative sources of evidence. They tend to dismiss the second claim, that police need decryption powers for public safety, as merely theoretical, but fail to engage its merits. Part III takes a closer look at the public safety claim in light of the torture debate and the ticking bomb scenario. Despite criticism, arguments in favour of compelled decryption based on the scenario remain theoretically plausible on consequentialist grounds, and rhetorically persuasive by aligning the need for compelled decryption with the value of life (over dignity or privacy). The public safety claim also challenges a common view among opponents of compelled decryption that such powers do not involve a trade-off between privacy and security but between two forms of security. The article concludes by considering the possible impact on the debate of a terrorist act implicating encryption
The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult
No full textThe recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis.
Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution
