Alberta Law Review (ALR)
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Over a Shadowed Threshold: Supreme Court of British Columbia Litigation Activity 1992-2022
Full text linkThe Supreme Court of British Columbia between 2002 to 2022 published “Annual Reports” that include information and statistics from 1992 to 2022 concerning Court litigation and activities. Compiled Annual Report data and calculations permit the first long-duration survey of different litigation type volumes, specific process activities, and the frequency at which court and judicial resources could not support scheduled proceedings in a provincial superior court of inherent jurisdiction. The resulting observations in this article are strong support for further and expanded quantitative investigation and evaluation of Canadian courts and their operation. While the overall volume of new Supreme Court of British Columbia activity is generally stable, extended timeline data reveals long-duration shifts in the frequency of certain litigation types, and a general decrease in trial volume, with the largest decreases being in criminal subject litigation. However, the volume of “long chambers” interlocutory processes has remained stable
Edmonton Area Black Undergraduate Students\u27 Intentions and Views Regarding Applying to Law School
Full text linkThis research note reports an empirical study of Black undergraduate students from the Edmonton Area who are interested in applying to law school regarding timelines for applying to law school, factors motivating choice of law school to attend, and their impressions of the University of Alberta Faculty of Law. The study aims to contribute missing information to efforts aimed at addressing the severe under-representation of Black students in the Faculty’s entry-level Juris Doctor program. The study findings suggest that the University of Alberta Faculty of Law is not the preferred choice of law school to apply to for Black undergraduate students in the Edmonton Area and highlight various factors that motivate their choice of law school to apply to. These findings ought to spur and guide further engagement with this category of students, as well as efforts to reverse the under-representation of Black students in the Juris Doctor program
Applying Purposive Textualism to Quebec\u27s Codes
No full textThe only approach to statutory interpretation in Canada is Driedger’s Modern Principle, which instructs a court to harmoniously interpret the text, context, and purpose when determining the meaning of a statute. While the Modern Principle provides a valid starting point for statutory interpretation, it has been critiqued as failing to provide a coherent methodology. The question, therefore, turns to methodology and what a harmonious interpretation might mean. Recently, various authors across the fields of both ordinary statutory interpretation and constitutional interpretation have pointed to a new methodological approach coming from the Supreme Court of Canada, where the text holds interpretive weight such that highly abstract purposes do not outweigh text. The Supreme Court has called this approach “purposive textualism” and some academics have called it the “New Canadian Textualism.”
The author explores the extent to which purposive textualism is compatible with Quebec’s codified civil law. Quebec is the only Canadian province to codify its law of general application, or jus commune, which invites the question of whether methods of statutory interpretation born from the common law or constitutional context are compatible with codal interpretation. Through an exploration of the mixed nature of Quebec civil law, history of statutory interpretation in the province, and the textual boundaries in Quebec’s codes, the author concludes that purposive textualism can be compatible with codal interpretation — particularly if the methodology accounts for the way a codal provision is drafted, which might cue the interpreter to look to its spirit
Unfinished Business in Unwritten Justice: Unwritten Constitutional Principles After Toronto (City) v. Ontario (Attorney General)
Full text linkThis article examines unwritten constitutional principles (UCPs) within the context of the Supreme Court of Canada’s 2021 obiter opinion in Toronto (City) v. Ontario (Attorney General). The Supreme Court has traditionally accepted three main arguments in justifying the use of UCPs. The Toronto (City) v. Ontario (Attorney General) majority strictly prescribed a “textual approach,” whereby a court broadly interprets the written Constitution, negating the importance of UCPs as independent legal tools. I respectfully submit that the majority failed to provide a reasoned framework for UCPs. I argue that certain constitutional issues arise that cannot be addressed through explicit constitutional provisions. Relying exclusively on enumerated provisions to invalidate legislation may stress the democratic authority of the Constitution when its provisions have a weak tie to a desired principle that addresses the constitutional threat at hand. In these cases, it is better if constitutional principles and values are openly acknowledged and subjected to careful consideration, analysis, caution, and criticism through structural argumentation. While the written text of the Constitution must always take priority, Canadian courts must sometimes turn to the full legal power of UCPs when faced with novel constitutional issues unforeseen when the Constitution was drafted
California Gas: A Brief History and Recent Events
Full text linkThe author discusses recent developments and ongoing issues related to regulatory authorities, contracts and pipeline matters affecting the gas industry in California, in comparison to elsewhere in the United States and Canada. Included is a review of some of the more important decisions of the Federal Energy Regulatory Commission, the California Public Utilities Commission and the National Energy Board. This paper is solely the work of the author. The views expressed herein do not necessarily represent the views of the author\u27s firm or any client of that firm
Where the Wild Things Are (and Have Been): An Archeology of Legal Discourses on Animals in Quebec
Full text linkAre animals mere things in the eyes of the law? Public discourse suggests so. However, the history of legal discourses about animals reveals another story. For better or for worse, animals have not been considered as mere things in law. It was long recognized that animals possess certain characteristics that are observable in beings, such as agency, sentience, and sociability. Together, agency, sentience, and sociability constitute a cluster of being-like characteristics sketching, through time, a portrait of the animal that is distanced from the image of a mere object of property. To support this conclusion, we ask where the “wild things” are and have been in our legal history. We relocate animals in the history of legal discourses surrounding them in the territory of Quebec, beginning slightly before codification. As many individuals worldwide would like to see their own jurisdiction explicitly recognize that animals are not things but beings, Quebec provides a fruitful case study for international readers on the impact that such a change may have on legal norms and discourses
A Missed Opportunity: How the British Columbia Court of Appeal Could Have Helped Reform Sentencing in the Opioid Crisis
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Beyond Charter Applicability: Exploring Challenges and Opportunities for Indigenous Jurisdiction in McCarthy v. Whitefish Lake First Nation
Full text linkThe Karen McCarthy and Lorna Jackson-Littlewolfe v. Whitefish Lake First Nation #128 case develops doctrine in two related areas in Aboriginal law. One area is the nature of the relationship between Aboriginal governments and the Canadian Charter of Rights and Freedoms, including the relevance of the question of the source of self-government authority (delegated, constitutional, or inherency) to the application of the Charter. The second area of development flows from the first. It relates to the application of section 25 — specifically, what categories of rights are included in the protection of section 25 and the parameters of its “shielding” function in the context of a challenge to an internal restriction by a member of a self-governing First Nation. The development of doctrine in this area is needed. However, there are concerns about how the courts are moving to apply section 32(1) to Indigenous governments from the perspective of constitutional reconciliation. This concern corresponds to further issues regarding the application of section 25 and the question of the relationship between the Charter and Indigenous jurisdiction more generally. This comment explores these issues in the context of the case
Understanding Choices of Legal Forms: Empirical Evidence From Private Indigenous Businesses in Canada
Full text linkThe present study takes up the challenge of the Truth and Reconciliation Commission Report Call to Action 27 to provide “appropriate cultural competency training” for lawyers dealing with Indigenous persons. Specifically, we look at how private Indigenous business owners take up private law forms of business organization, namely: sole proprietorship, partnership, and corporation. We use survey data from representative samples of Indigenous entrepreneurs in Canada in 2010 and 2015, and we also employ the report of the 2020 Ontario Aboriginal Business Survey developed by the Canadian Council for Aboriginal Business. Findings reveal that Indigenous entrepreneurs’ higher education levels, business training and experience, as well as the age and size of the business positively influence the selection of the corporation legal form of business. Business location on a reserve has a positive influence on the selection of sole proprietorship or partnership forms. These conclusions, based on empirical evidence, answer a need identified in the study of Indigenous business enterprises and allow legal practitioners to understand the reasons why private Indigenous entrepreneurs prefer one form of legal business organization over others
Parental Rights Over Transgender Youth: Furthering a Pressing and Substantial Objective?
Full text linkParental rights are increasingly being invoked to oppose the growing inclusion of trans youth in education. Recently, some provinces have proposed or adopted laws and policies predicated on the belief that parents have a right to be informed of their child’s choice of name and pronouns at schools and that trans youth should not be allowed to change the names and pronouns they use at school without parental consent, which I term “blanket veto and disclosure laws.” In this article, I explore whether blanket veto and disclosure laws can be justified under two dominant conceptions of parental rights — parental authority and parental entitlement. Using the framework provided by section 1 of the Canadian Charter of Rights and Freedoms, I argue that blanket disclosure and veto laws cannot be justified under either conception of parental rights. Conceived as protection of parental authority, blanket veto and disclosure laws are unjustified because they are not rationally or narrowly tailored to their objective. Conceived as protection of parental entitlement, the laws are unjustified because their objective is inconsistent with the values of a free and democratic society. Regardless of the conception of parental rights we adopt, blanket veto and disclosure laws are constitutionally and politically deficient