Alberta Law Review (ALR)
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“The Maverick Constitution” — A Review of Canadian Maverick: The Life and Times of Ivan C. Rand, William Kaplan
Get PDF(Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2009
Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law
Get PDFThe aim of this article is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights — including those protected in the Charter of Rights and Freedoms — have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. Proportionality analysis is capable of navigating the features of remedial discretion engaged by suspended declarations, while reconciling the latter with Canada’s constitutional principles
Access Denied? Inconsistent Jurisprudence on the Open Court Principle and Media Access to Exhibits in Canadian Criminal Cases
Get PDFThe open court principle is a central tenet of the Canadian justice system. However, in cases involving media access to exhibits entered in court, the courts have been neither clear nor consistent in their interpretation and application of the open court principle. This article discusses the historical development of the open court principle and the definition of an “open court” today. The author proposes that the Supreme Court of Canada should clarify that the open court principle extends to access to exhibits and re-articulate the Dagenais/Mentuck test in order to resolve the inconsistencies regarding the open court principle
The Snail and the Ginger Beer: The Singular Case of Donoghue v Stevenson, Matthew Chapman (London: Wildy, Simmonds & Hill, 2010)
Get PDFWhen I first saw The Snail and the Ginger Beer, I was attracted more by its jacket (featuring a rather lively snail, tentacles extended) and title (most Holmesian, my dear Watson!) than by any expectation of what it might teach me about the case that heralded the modern law of negligence throughout the Commonwealth world. With all that has been written about Donoghue v Stevenson, could there be anything more to tell about the shocking case of gastroenteritis caused, it is said, by gastropod detritus lingering in some ginger beer? Well, yes, actually, and Matthew Chapman has done an excellent job in the telling. Chapman, a London barrister, has produced a well-researched and pithily presented story, not only of the case itself, but of the legal-historical context leading up to it and, to a lesser extent, its fate since being decided by a 3:2 majority of the House of Lords in 1932
Restorative Justice at the Miyo Wahkotowin Community Education Authority
Get PDFThis article examines the development of restorative justice techniques at the Miyo Wahkotowin Community Education Authority, which operates three schools for the Emineskin Cree Nation in Maskwacis (Hobbema, Alberta). The article begins with an examination of conflict with Maskwacis. Contextualizing the conflict that takes place within the community is necessary to understand the restorative justice techniques employed by Miyo Wahkotowin. While many techniques of restorative justice has previously been implicitly practiced in the schools overseen by Miyo Wahkotowin, officially adopted restorative justice techniques provided a set of ideas that allows Miyo Wahkotowin to explicitly discuss and practice alternate forms of conflict resolution. The article ends by looking at how the use of restorative justice techniques by Miyo Wahkotowin holds transformative potential for the community of Maskwacis as a whole
Overlapping Remedies and the Unexpected Termination of Oil and Gas Leases
Get PDFThe freehold oil and gas lease in Canada has had a perilous and uncertain existence. In the early cases, the courts applied a literal interpretation of the leases, resulting in numerous unexpectedly terminated leases. In recent years, there has been a resurgence of cases involving terminated leases. Modern case law recognizes that the failure of a lease can create liabilities in both tort and restitution, but courts have faced difficulties in dealing with the overlapping compensatory and restitutionary remedies. The modern case law has been heavily criticized, but the authors argue that there is a smaller difference between the overlapping remedies than is commonly supposed when the underlying purpose of restitutionary remedies is examined, and they propose a resolution to the problem of overlapping remedies
Auto Insurance as Social Contract: Solving Automobile Insurance Coverage Disputes Through a Public Regulatory Framework
Get PDFAutomobile insurance in Canada is a product with a decidedly public purpose, a social contract. The provincial governments are heavily involved in the creation, regulation, drafting, and operation of the automobile insurance regime in any particular province. This public flavour to Canadian automobile insurance necessarily should affect the way one assesses the availability of insurance coverage in accident situations involving injuries or death. Understanding the limits of automobile insurance coverage for injuries or death in any given accident situation in Canada should be an exercise of interpretation akin to discerning the meaning of a public regulatory instrument with a public purpose, like a statute. This article proposes a novel interpretive framework for Canadian automobile insurance coverage disputes, one which accounts for the public purpose of such insurance and which searches for the true intent behind the language in the coveragegranting instruments. The framework also prompts an assessment of coverage decision consequences in a public compensatory regime and, in instances of coverage ambiguity, solves those ambiguities through basic tools of consumer protection
Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders
Get PDFR. v. Arcand was no ordinary sentence appeal. It was a reconsideration of four previous Alberta Court of Appeal sexual assault decisions. It was an opportunity to discuss the significance of starting point sentences - essentially appellate court mandated starting points to be followed by lower court judges when issuing sentences for specific sub-categories of offences. The decision also purports to provide a clear-eyed assessment of the problems with sentencing in Canada since the passage of Bill C-41 in 1996 and a way out of the morass of unprincipled sentencing decisions by lower judges that have eroded Canadians’ faith in the justice system itself. However, there is something missing in the decision. The force of the reasoning advanced in Arcand is strongly diminished by the Court of Appeal’s failure to advert to the Supreme Court of Canada\u27s decision in R. v. Gladue and to the realities of Aboriginal overrepresentation in Canadian and, more specifically, Alberta correctional facilities. Recognition of Gladue should lead to a reconsideration of the conclusions in Arcand on the issues of proportionality, Aboriginal concepts of sentencing, circumstances of the Aboriginal offender, general deterrence, and the way sentences reflect harm to victims
Oil Sands Mining Reclamation in Alberta: A Discussion of the Prior Regime and the New Mine Financial Security Program
Get PDFThis article discusses the oil sands mining regime in Alberta, focusing on the prior reclamation regime, its shortcomings, and the events that led to its overhaul. The newly enacted Mine Financial Security Program (Alberta) is discussed, together with an analysis of whether the problems under the prior reclamation regime have been adequately addressed. Finally, the authors discuss matters that should be taken into account when drafting agreements that involve the funding or performance of reclamation obligations in oil sands mining projects in Alberta
Restorative Justice, Euthanasia, and Assisted Suicide: A New Arena for Restorative Justice and a New Path for End of Life Law and Policy in Canada
Get PDFThis articles examines the current Canadian legal approach to euthanasia and assisted suicide, highlights some of the problems with it, and offers a novel alternative to the current traditionally criminalized prohibitive regime. The authors first describe a restorative justice approach and explain the differences between such an approach and the traditional approach currently in use. They then explain how a restorative justice approach could be implemented in the arena of assisted death, acknowledging the potential challenges in implementation. The authors conclude that taking a restorative justice approach to euthanasia and assisted suicide could enable movement in the seeminly intractable public policy debates about these issues, lead to more effective and compassionate responses to cases of euthanasia and assisted suicide, and prompt policy and practice reform that enables society to better care for individuals at the end of life