Alberta Law Review (ALR)
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Medical Assistance in Dying: Journey to Medical Self-Determination
No full textIn 2016, the Supreme Court of Canada struck down the laws criminalizing medical assistance in dying (MAID) in Carter v. Canada (Attorney General). In this article, the authors discuss the historical prohibition on MAID in Canada, the important change in the law represented by Carter, and Bill C-14, the federal government’s legislative response to the Supreme Court’s verdict. The authors explain the new MAID regime created by Bill C-14 and discuss the various issues raised by the new legislation, including the possibly unconstitutional exclusion of patients not suffering from terminal conditions, problems of certainty in determining when death is “reasonably foreseeable,” problems related to patients’ mental capacity, and the need for effective data collection
The Prejudicial Effects of "Reasonable Steps" in Analysis of Mens Rea and Sexual Consent: Two Solutions
No full textThis article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by section 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded in their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable,” given what the accused knew, the legal definition of consent in section 273.1 is easily overlooked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. The result is failure to enforce the law. The author proposes: (1) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (2) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent
Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap
No full textIn R. v. Marakah, a majority of the Supreme Court of Canada decided that senders of electronic text communications maintain a reasonable expectation of privacy over their messages even after they are copied to recipients’ devices. The dissenters argued, in contrast, that any such expectation is objectively unreasonable given senders’ inability to control the messages after delivery. The Supreme Court did not settle the question, however, of whether this expectation can be defeated by a recipient’s voluntary decision to allow police to search his or her own device. Indeed, each side intimated that such a consent would be difficult, if not impossible, to obtain.This article argues, nonetheless, that courts can and should use consent doctrine to avoid the “zero-sum” model of section 8 adjudication that characterizes the majority and dissenting reasons in Marakah. Properly interpreted, that doctrine preserves Marakah’s core holding — that senders do not reasonably expect unfettered state access to their received text communications — while also giving effect to recipients’ autonomous decisions to assist police.However, as with oral communications, a recipient’s consent to disclose a sender’s text communications to police should only defeat the sender’s expectation of privacy over preexisting messages. Contrary to several lower court decisions, this article argues that the acquisition of future, incoming communications from recipients’ devices (with or without consent) invades senders’ reasonable expectations of privacy under section 8 of the Charter and constitutes an “interception” requiring judicial authorization under section 184.2 of the Criminal Code
An Ethical-Legal Analysis of Medical Assistance in Dying for Those with Mental Illness
No full textThis article considers sources of opposition to allowing access to medical assistance in dying for individuals with mental illness. It originated with an observation by members of the University of Toronto Joint Centre for Bioethics that in mainstream Canadian culture — as well as in political, academic, and professional circles — such opposition remains widespread (and often reflexive). This opposition exists even in light of broad support for access to assisted dying for individuals with illness manifesting in physical suffering. Most Canadians treat the prospect of assisted dying for those with mental illness with suspicion, and it is worth exploring why this opposition persists, what arguments can be leveled to support it, and whether those arguments can be sustained. To that end, I identify five objections to assisted dying for the mentally ill that seem to characterize the public debate, and argue that none are sustainable. They either rely on false premises or otherwise fail to secure the conclusion that assisted dying should be off limits to people suffering from mental illness, even when such mental illness is their sole underlying condition
Waste Not, Want Not: "Waste" as a Tool of Resource Conservation in the Atlantic Canadian Offshore
No full textAs the Atlantic Canadian oil and gas industry continues to mature, offshore regulators face new and varied issues as they work to implement the objectives of the Atlantic Accords. Laws that were largely developed before the Atlantic Canadian offshore contained producing projects are now being applied to a diverse and evolving industry. As is often the case, laws, as expressed on paper, can prove difficult to apply to each unique set of circumstances that arises in practice.Fundamentally, many of the powers of the Atlantic Canadian offshore regulators rely on the concept of “waste.” An offshore regulator can order a company to commence, continue, or increase production of petroleum where it is of the opinion that such an order “would stop waste.” Conversely, the regulators may order a decrease, cessation, or suspension of the production of petroleum for the same reason. In certain situations of “waste,” the Accord Acts provide for a “forced marriage” via compulsory unitization.While “waste” is instrumental to the authority of the offshore regulators, by necessity its definition is open to some interpretation. This article will explore various interpretations of “waste,” and examine the role of waste in the Atlantic Canadian offshore regimes
Legal Mechanisms to Improve Quality of Care in Canadian Hospitals
Get PDFTens of thousands of Canadians die each year as a result of preventable injuries sustained in hospitals. The patient safety literature suggests that we must implement systems and processes designed to prevent errors, rather than focusing on the mistakes of individual health professionals. Although the law tends to reinforce the provider-centric approach to errors, several law reforms have the potential to catalyze a systems-centric approach that finds support in the patient safety literature: shifting some liability from physicians to hospitals, reforming hospital governance practices, and reconsidering the legal relationship between physicians and hospitals
The Tortious Liability of Directors and Officers to Third Parties in Common Law Canada
Get PDFThe law regarding the tortious liability of corporate directors and officers to third parties remains conflicted. One line of authority, adopted in Alberta, provides that liability is rare in the context of torts committed in a corporate capacity, and it largely closes the door on liability for ordinary negligence. A competing line of authority, however, contends that tortious liability is common. Signalling a different approach, Justice Slatter of the Alberta Court of Appeal provides a policy-based stance that accounts for the importance of both tort law and corporate law principles to the question of liability for ordinary negligence. Beyond offering balance, Justice Slatter’s approach has the benefit of aligning with pronouncements from the Supreme Court of Canada regarding directors’ and officers’ liability in negligence to third parties. This article outlines the current authorities in the area, concluding that Justice Slatter’s judgment provides a clear and principled way forward
Modernizing Judicial Review of the Exercise of Prerogative Powers in Canada
Get PDFDespite judicial pronouncements that the source of government power, whether statutory or prerogative, should not affect judicial review, Canadian courts respond much more tentatively when asked to review exercises of prerogative powers than exercises of statutory powers. Courts (1) define prerogative powers in a way that makes it difficult to precisely articulate their existence and scope; (2) frequently avoid judicially reviewing exercises of prerogative powers by applying peculiar justiciability tests; and (3) when they do engage in judicial review, generally limit themselves to a conservative form of procedural review. This article proposes that courts reform judicial review of the exercise of prerogative powers by (1) adopting a principled approach to defining prerogative powers that starts with distinguishing the Crown’s prerogative powers from its natural person powers; (2) abandoning peculiar interest-based and subject matter justiciability tests in favour of a test that turns on the nature of the question, and maintaining a subject matter justiciability test only for exercises of prerogative powers that are integral to the democratic process; and (3) applying standard principles of administrative law to judicial review of the existence, scope, and exercise of prerogative powers
Jake and Josie Get Drunk and Hook Up: An Exploration of Mutual Intoxication and Sexual Assault
Get PDFIn R. v. Daviault, the Supreme Court of Canada recognized a defence of extreme intoxication to general intent offences, including sexual assault. In the aftermath of Daviault, Parliament swiftly enacted section 33.1 of the Criminal Code. While the lower courts are divided on the constitutionality of section 33.1, its operation precludes a defence of extreme intoxication for some general intent offences. Thus, intoxication can prevent the complainant from giving valid consent, but cannot prevent the accused from forming the necessary intent. How should criminal liability be determined where two individuals become voluntarily intoxicated to the point of incapacity and engage in sex? In theory, the criminal law is committed to the protection of the bodily integrity of all individuals and to the punishment of only the morally blameworthy. However, this article argues that the law’s treatment of mutual voluntary intoxication violates these core principles of our justice system
Watertight Compartments: Getting Back to the Constitutional Division of Powers
Get PDFThis article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme — particularly incidental effects, genuine double aspects, and limited ancillary powers — overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text