Alberta Law Review (ALR)
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Unpacking the Implications of Remand Time Constituting Punishment
Full text linkFor state conduct to constitute “punishment,” it must be a “consequence of conviction” that either furthers the “purpose and principles of sentencing” or qualifies as a “significant deprivation” of an individual’s liberty or security interests. The common practice of deeming time served in remand punishment is inconsistent with this definition. This follows because the consequence is incurred for reasons relating to bail, not conviction. The definition of punishment should therefore be broadened to include any consequence of being charged with an offence. Insisting that sanctions be imposed (or deemed imposed) in furtherance of the purpose and principles of punishment would ensure that this modification of the definition of punishment will not lead to unprincipled results. Bringing remand time within the constitutional definition of punishment would also lend the practice to a more determinate method for assessing the appropriate remedy for offenders who endure undue time on remand. If the time served constitutes grossly disproportionate punishment, I contend that a stay of proceedings ought to follow. In cases where the impugned deprivation of liberty occurred before a guilty verdict, however, a similar analysis can occur under the “treatment” prong of section 12 of the Canadian Charter of Rights and Freedoms. Time served on remand that is not grossly disproportionate might nevertheless still be incurred due to a breach of the accused’s right to reasonable bail. In these circumstances, I maintain that a monetary remedy will be appropriate absent evidence of serious systemic failures in providing reasonable access to bail
Unsettling the Royal Proclamation of 1763: A Substantive Analysis of Section 25 of the Charter
Full text linkThe Canadian Charter of Rights and Freedoms has a significant impact on rights discourses in Canada. Section 25 of the Charter protects Aboriginal rights from infringements of the rights and freedoms endorsed elsewhere in the Charter. Section 25 also protects and codifies rights created by the Royal Proclamation of 1763. Despite this inclusion, Royal Proclamation rights have remained relatively undefined in the history of the Crown- Indigenous relationship. In this article, I investigate the content of Proclamation-based Aboriginal rights protected by section 25 by focusing on the Proclamation, the legislative development of section 25, and recent jurisprudence of section 25. I then take these insights and apply them to two recent Aboriginal rights cases: Rice v. Agence du revenu du Québec and Restoule v. Canada. In doing so, I problematize the argument of section 25 as a savings provision and argue that there is a disconnect created by section 25, as the legislative intent of these rights was for their content to be determined at a later date, and yet, they never were determined. Accordingly, if the settled interpretation of the Proclamation were to become unsettled, there could be an expansion of Aboriginal rights within Canada
The Regulatory Offence Revolution in Criminal Justice: The Choice Architecture of Regulatory Offences
Full text linkCourts, scholars, and lawyers tend to overlook one of the most salient features that differentiate crimes and regulatory offences: choice architecture. The concept of “choice architecture” refers to how the presentation of options shapes decision-making. This article argues that crimes and regulatory offences employ different forms of choice architecture in the criminal justice process. It advances three core arguments. First, in the charging and plea phase, regulatory prosecutions nudge defendants to plead guilty by default, while criminal prosecutions automatically enrol defendants into non-guilty pleas. Second, when assessing culpability (or moral fault), regulatory prosecutions incorporate inculpatory default rules that presume guilt and foster efficiency. In contrast, criminal prosecutions incorporate exculpatory default rules that presume innocence and aim to prevent wrongful convictions. Third, in the context of sentencing, impecunious defendants who are charged with a regulatory offence must often opt in to receive a proportionate sanction. Outside of mandatory minimum sentencing contexts, defendants who are charged with a crime enrol into a sentencing scheme that considers proportionality constraints by default. Ultimately, this article deepens our understanding of the different choice architecture that governs crimes and regulatory offences, and lays the foundation for future scholarship that explores the criminal justice system’s choice architecture more generally
Principled Justice for Indigenous Peoples? An Empirical Analysis of the Application of Gladue Factors in Canadian Lower Courts
Full text linkThis article examines section 718.2(e) of the Criminal Code, which is aimed at reducing the imprisonment of Indigenous offenders and the application of the Supreme Court of Canada’s decision in R. v. Gladue. Using court observation of docket court sentencing, this article demonstrates that the restrictive context of the lower court sentencing environment, along with the complexity of the sentencing task, influences and reduces the number and kinds of Gladue sentencing factors considered and restricts a judge’s ability to appropriately weigh the factors that ought to play a meaningful role in Indigenous sentencing. Drawing from research literature from the fields of behavioural economics and psychology about cognitive bias, heuristics, and the use of stereotypes, the findings of this study suggest that, faced with these circumstances, judges may rely on heuristics and form judgments about a defendant’s character and their potential future behaviour. In this way, stereotypes relating to offenders’ race permeate their sentencing decisions. The findings that Indigenous sentencing principles are not being employed in a principled way have important implications for the legitimacy of our legal institutions
Erosion of University Autonomy: Judicial Supervision of University Conduct
Full text linkThe university was once envisaged as an autonomous, self-governing institution where academic endeavours could flourish sans outside interference. It is a vision with diminishing correspondence to reality. This article explores the degree of autonomy afforded to universities when the university visitor was given a prominent role to play in adjudicating disputes in contrast to contemporary times when universities find themselves increasingly — and inconsistently — under the supervision of the judiciary. By examining university focused jurisprudence involving judicial review, civil litigation, and Canadian Charter of Rights and Freedoms challenges, the article highlights instances where universities have fallen under the scrutiny of judicial oversight, and circumstances where the courts have chosen not to intervene. The article concludes that today’s universities are subject to both public and private law as administrative decision-makers and quasi-public institutions
The Contractual Basis of the Assignment of Contractual Rights
Full text linkThere exist two popular conceptions of the assignment of contractual rights in common law jurisdictions. On the first view, the assignment operates as a conveyance of contractual rights from the assignor to the assignee. Under the second, the assignment is analogized to a trust. The original parties to the contract remain the same, but the assignee acquires an equitable or beneficial interest in the contract. This article examines the limits of these two conceptualizations, and proposes that assignments should instead be viewed as a separate contract to assign the rights owed under the initial contract. This approach provides both a normative grounding for the law of assignment in the principles governing the enforcement of contracts, and accounts for the unique effects generated by this type of transaction
Strawberry Fields Forever? Some Observations About Restrictive Covenants and Zoning
Full text linkRestrictive covenants and statutory land use controls are both capable of promoting private or public interests, but there is tension surrounding their use. This article explores the relationship between the two devices and discusses the courts’ evolving approach to resolving conflicts between restrictive covenants and restrictive land use controls that apply to the same property. Controversy arises with these devices when they are used to restrict land use for undesirable exclusionary practices, such as limiting access to property ownership based on socioeconomic status or race, or when covenants conflict with municipal planning schemes. The author examines specific restrictive covenants and statutory land use controls used in Albertan cities to discuss a potential change in attitude toward large-scale restrictive covenants that impede municipal policies
Richard Riegert Memorial Lecture: The Canadian Critical Minerals Strategy: Unearthing Energy Security in Canada
Full text linkCanada’s economy has historically been built on natural resources. In response to the risk of climate change, energy security, and environmental and social governance pressures, Canada has begun to transition towards a net zero economy. Canada has pledged to be net zero by 2050. Critical minerals are vital to the new green and digital economy and key to energy security moving forward. Canada, like many other countries, is in a race to secure and develop critical minerals. Canada’s national critical minerals strategy aims to develop critical minerals and associated value chains, while also creating opportunities for investment and entrepreneurship. This article highlights and discusses Canada’s strategy, the Canadian regulatory environment, and the strategies of Canada’s global competitors
Resurrecting “She Asked for It”: The Rough Sex Defence in Canada
No full textInternationally, the “rough sex defence” appears to be on the rise. Used to suggest that women enjoy violence as part of “sex play,” it invites judges and jurors to find either consent to acts causing bodily harm or an honest but mistaken belief in consent. Our review of the Canadian case law from 1988–2021 examines how courts approach this defence. We found that the defence is gendered, with only men as perpetrators and overwhelmingly women on the receiving end. We explore themes from the cases including the role of pornography, the trivialization of bodily harm, the mischaracterization of strangulation, and how consent to some sexual activity undermines women’s credibility. We conclude that consent should be barred as a defence to causing bodily harm unless that harm was unforeseeable when inflicted
Tending Gardens, Ploughing Fields, and the Unexamined Drift to Constructive Takings at Common Law
Full text linkExpropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings or de facto takings. This article sets out the earlier consensus, documents the drift to constructive takings at common law, and presents the implications