Alberta Law Review (ALR)
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The Impact of Biological Psychiatry on the Law: Evidence, Blame, and Social Solidarity
Get PDFThis article considers the history of biological understanding of mental disorder, and explores the impact of today’s dominant neuroscientific approach on the law. The author argues that this approach subtly affects legal rules and practices, and that these socio-legal effects will likely be enhanced by the increasingly sophisticated use of neuroscience in biological psychiatry. The author illustrates the impact of the neurobiological model using five areas of law: evidence of mental states, the definition of disability in human rights law, criminal responsibility, the regulation of brain interventions, and the regulation of reproductive technologies
The Future of Precarious Status Migrants\u27 Right to Health Care in Canada
Get PDFThis article examines how health care services in Canada are denied to precarious status migrants, either through outright exclusion based on immigration status, or due to the realities in migrants’ lives that make it difficult for them to access health care services. The author argues that this situation is unfair, given the contribution made by precarious status migrants to Canada’s sociocultural and economic fabric, and exhorts the courts and policymakers to do more to make health care services available to these migrants
An Action on the Equities: Re-Characterizing Bhasin as Equitable Estoppel
Get PDFIn its 2014 decision of Bhasin v. Hrynew, the Supreme Court of Canada recognized that a duty of honest performance exists between contracting parties. Academics, practitioners, and courts across the nation have since contemplated the meaning and role of such a duty. This article looks to Australia’s doctrine of “equitable estoppel,” the equivalent of Canada’s “promissory estoppel,” to explain the outcome of the Supreme Court’s decision. It thereby posits that the duty of honest performance can be re-characterized and interpreted as equitable estoppel. In that manner, the article provides a perspective that clarifies the newly proclaimed duty, and potentially answers several of the outstanding questions regarding the Supreme Court’s conclusions in Bhasin
Epistemologies of the South: Justice Against Epistemicide, Bonaventura de Sousa Santos (Boulder: Paradigm, 2014)
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Alternative Fact? More Democratic States Are More Likely to Provide Refugee Protection
Get PDFDemocracy is explicitly engaged in two aspects of the Canadian refugee determination process: state protection findings and Designated Country of Origin determinations. Democracy is also implicitly engaged in the selection of countries as so-called “safe countries.” This article reviews the literature on measuring the level of democracy in a given state, and the empirical evidence linking this level to a state’s willingness and ability to provide adequate protection to its citizens. The article argues that the Federal Court of Appeal was misguided in taking judicial notice of a correlation between the level of democracy in a given state and its ability to provide state protection. The article also reviews and questions the use of “democratic governance” as a factor in Immigration, Refugees and Citizenship Canada’s Designated Country of Origin regime, as well as the implicit use of democracy in designating the United States as a “safe” country under the Safe Third Country Agreement. The article contends that the time has come to reconsider how democracy measurements are used in Canada’s refugee determination process, and advocates for an individualized approach to state protection determinations: one that eschews the alternative fact presumption of a connection between democracy and protection, and instead focuses on the protective mechanisms available to a refugee claimant based on their unique circumstances
When Insolvency and Restructuring Law Supercedes Contract
Get PDFThe impact of counterparty insolvency on contracts has become an area of concern for those in the energy industry. The Bankruptcy and Insolvency Act, Companies’ Creditors Arrangement Act, Alberta Business Corporations Act, and Canada Business Corporations Act; are all statutes that override or diminish strict contractual rights. This article examines six ways in which these pieces of legislation accomplish this: (1) restructuring proceedings; (2) stays of proceedings; (3) replacement and default clauses; (4) disclaimers of contracts; (5) assignment of contracts without the consent of the solvent counterparty; and (6) plans of arrangement. Public policy considerations support this legal framework, but it has a significant impact on the solvent party when trying to achieve restructuring or insolvency objectives and preserving legitimate bargains. Therefore, it is crucial for energy law practitioners to understand these policy considerations and this area of law to be able to properly advise clients of the inherent risks and options available
Next Up: A Proposal for Values-Based Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment
Get PDFThe unilateral withholding and withdrawal of potentially life-sustaining treatment presents a complex issue of law and public policy. The authors examine the current state of this practice and conclude that it is occurring, being challenged in the courts, and is treated differently in different jurisdictions. The authors review the current state of the law in the United Kingdom, Australia, New Zealand, the United States, and Canada. The authors use Canada as a case study to outline a process for pursuing law reform. The authors propose a model for law and policy reform in this area that is both informed and shaped by the fundamental values of Canadian society
Implications of Case Management and Active Adjudication for Judicial Disqualification
Get PDFThe judicial role of Canadian judges is changing to allow judges to make trials fairer, more accessible, and more efficient. Along with the changing role of judges has come new tools, including pretrial settlement and case management conferences, and even active adjudication during the course of the trial. However, this new role and the use of its associated tools have the potential to raise an apprehension of bias. This article focuses on recent case law and commentary addressing case management and active adjudication by judges, with the aim of clarifying the boundary between permissible judicial intervention that fosters fairness and efficiency, and impermissible interventions that raise an apprehension of bias. Additionally, we discuss the role counsel can play in helping to avoid concerns of bias from arising
Trinity Western University Law: The Boundary and Ethos of the Legal Community
Get PDFThe article examines the conflict between the legal community and Trinity Western University (TWU) over TWU’s proposed law school. The first half of the article is concerned with how this conflict shapes the boundary of the legal community. The second half shows how understanding the ethos of the legal community in terms of virtue, rather than abstract values such as equality, permits at least having regard for the religious ideas of TWU when framing the nature of the legal profession. TWU, the article suggests, challenges traditional views of legal education and the legal profession, and requires reconsideration of how communities define themselves
Recent Legislative and Regulatory Developments of Interest to Energy Practitioners
Get PDFThis article discusses recent developments in the regulatory and legislative spheres that are of interest to energy practitioners. The authors reviewed regulatory initiatives, decisions, related case law, and legislation from provincial, territorial, and federal authorities. Topics of note include: recent climate change policy updates, renewable energy policy initiatives, oil and gas regulatory developments, pipeline project updates, and Aboriginal case law developments. The period covered is May 2016 to June 2017, inclusive