bluuebunny/crossref_metadata_2025 huggingface dataset:
Justice Bertha Wilson: One Woman's Difference, Kim Brooks, Ed (Vancouver: UBC Press, 2009)
Authors: Rowbotham Madam Justice Patricia
Published: December 2018

Justice Bertha Wilson: One Woman’s Difference is a collection of 16 essays which reflect upon Wilson’s contributions as jurist, speaker, chair of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession, mentor, and role model to a generation of lawyers and judges. The authors are all women; fifteen of the essays are written by academics (and a student) from law faculties across Canada, and one essay is authored by a barrister. For the most part the authors write from the perspective of their own considerable expertise in a particular area of law. Their critical analysis of several of Wilson’s judgments from both the Ontario Court of Appeal and the Supreme Court of Canada caused me to reflect upon those judgments in novel ways. Some of the authors tackle the tricky issue of whether Wilson was a “feminist” judge.
The Law of Nuisance in Canada, Gregory S Pun & Margaret I Hall (Markham, Ont: LexisNexis, 2010)
Authors: Brown Russell
Published: December 2018

“There is perhaps no more impenetrable jungle in the entire law,” Dean Page Keeton once wrote, “than that which surrounds the word ‘nuisance.”’ Such impenetrability may explain steps taken in England to subsume nuisance law into the fault-based law of negligence. It does not take much imagination to appreciate why the English would move in that direction. At some point, after all — Dean Keeton’s jungle floor having become impossible to navigate — practitioners and judges must be tempted to join the academic lawyers who gaze down from the treetops. The perspective from the canopy might well persuade them that their problem is not amenable to the small doctrinal fix of cutting a path through a grove or two. Rather, it is more fundamental, going to the very lay of the land. They therefore abandon nuisance law’s tangled thickets  altogether, preferring — to bring the metaphor home now for a decent burial — the broader and more familiar paths of negligence law.
Overlapping Remedies and the Unexpected Termination of Oil and Gas Leases
Authors: Percy David R , McGillivray David
Published: December 2018

The 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.
The Changing Legislation and Regulation of Carbon Capture and Storage: Impacts on Purpose, Policy, and Projects
Authors: Massicotte Michael G , Ross Alan L , Thompson Chidinma B
Published: December 2018

The Government of Alberta is implementing carbon capture and storage (CCS) technology in order to reduce carbon dioxide emissions. With the enactment of the Carbon Capture and Storage Statutes Amendment Act, 2010 in November 2010, Alberta became the first jurisdiction in Canada to have comprehensive CCS legislation. This article describes CCS technology, considers the impact of the new legislation and potential interjurisdictional conflicts, and briefly compares the CCS legislation of other jurisdictions with Alberta’s legislation.
Force Majeure in Canadian Law
Authors: Theroux Michael P , Grosse April D
Published: December 2018

Force majeure clauses are intended to allocate risk for future events that, if they occur, will affect the ability of one party to perform its obligations under the contract. This article undertakes a comprehensive review of the Canadian law of force majeure and its application in the energy sector. The article begins by examining the legal foundations of force majeure found in the common law, Canadian jurisprudence, and other legal regimes. It then describes the operation of a force majeure clause and analyzes how such a clause is likely to be interpreted by the courts. Along with analyzing specific aspects of force majeure, such as triggering events, foreseeability and control, and issues relating to impact and causation, the authors incorporate many practical suggestions that will be useful to drafters of force majeure clauses.
Non-Consensual Security Interests in Personal Property
Authors: Wood Roderick J. , Wylie Michael I.
Published: December 2018

The authors trace the chaotic growth of non-consensual security interests in personal property. Rules governing non-consensual security interests are analyzed and shown to have developed in an inconsistent and unpredictable manner. The authors set out a framework to resolve the priority contests between security interests governed by the Personal Property Security Act and non-consensual security interests. Ultimately, the authors call for reform to this area of the law, similar to that which occurred to chattel security law with the advent of the Personal Property Security Act, so as to create some degree of predictability in the area.
Native Children and the Child Welfare System in Canada
Authors: Davies Christine
Published: December 2018

This article is comprised of a speech given by Professor Davies at the World Conference of the International Society on Family Law, held in 1991 in Yugoslavia. The professor leads into her discussion by reviewing the dismal statistics that face native people in Canada. The author suggests that the government's past approach, namely that of assimilation, combined with funding squabbles between the federal and provincial governments have been largely responsible for Canada's native child welfare problems. More recently, a new attitude of cooperation has emerged between the government and native leaders. The result has been increased autonomy for native people in the area of child welfare and a greater sensitivity of the government to native concerns and cultural differences. While the author contends these changes are positive, she stresses that the autonomy of the native community must not infringe on the best interests of the child.
The Oral Histories of Canada's Northern People, Anglo-Canadian Evidence Law, and Canada's Fiduciary Duty to First Nations: Breaking Down the Barriers of the Past
Authors: McLeod Clay
Published: December 2018

This article is a call for Canadian Courts to interpret, respect and develop First Nations' rights from the perspective of the aboriginal peoples themselves. McLeod focuses on the First Nations of the North and how their traditional use of oral histories is profoundly affected by the current Canadian rules of evidence. Indeed, the whole concept of the adversarial system, a system based on Western European culture, assumptions, and principles, and its effectiveness in determining the "truth" is shown to be inadequate at addressing the concept of the "truth" as defined by the First Nations. McLeod exposes an inexcusable "cross-cultural clash" occurring within Canadian courtrooms that is causing the rules of evidence to become tools of oppression preventing the oral histories of the First Nations from properly being admitted and given due weight. McLeod continues, however, to suggest ways by which some of the rules of evidence could be utilized so as to effectively allow the aboriginal people the opportunity of presenting their oral histories to the Courts and having them accepted as being valid and trustworthy.
Spatial Data Quality: The Duty to Warn Users of Risks Associated with Using Spatial Data
Authors: Chandler Jennifer A. , Levitt Katherine
Published: December 2018

This article discusses whether and when a private provider of spatial data may be liable to pay for damages resulting from physical injury that occurs due to reliance on erroneous spatial data. The existing case law supports the view that some courts will approach harm due to errors in spatial datasets that give rise to physical harm using principles applicable to defective products, while others regard these errors as negligent misrepresentation. This article analyzes the duty to warn and spatial data in two parts. First, it provides an overview of the general problem of spatial data quality and its growing importance in light of internet dissemination to the public. Second, it sketches out the basic rules in the three main subdivisions of Canadian product liability law (manufacturing defects, design defects, and failures to warn of risks associated with products) and applies them to the context of broadly disseminated spatial data.
Judicial Assessment of the Credibility of Child Witnesses
Authors: Bala Nicholas , Ramakrishnan Karuna , Lindsay Roderick , Lee Kang
Published: December 2018

This article reports on the results of two research studies carried out by the authors that address the questions of how and how well judges assess the honesty and reliability of children's testimony. One study tested the accuracy of judges and other professionals in assessing the honesty of children giving mock testimony. Judges performed at only slightly above chance levels, though the performance of judges was comparable to other justice system professionals, and significantly better than the performance of law students.

The second study, a survey of Canadian judges about their perceptions of child witnesses, reveals that judges believe that compared to adults, children are generally more likely when testifying to make errors due to limitations of their memory or communication skills and due to the effects of suggestive questions. However, children are perceived to generally be more honest than adult witnesses. The survey also revealed that judges believe that children are often asked developmentally inappropriate questions in court, especially by defence counsel. There were no gender differences among the judges in either study.

To put this research in context, the article first discusses the inherent challenges in assessing the credibility of witnesses and provides a review of the psychological literature and leading Canadian jurisprudence on the credibility and evidence of children.
Legislative Reform and Equal Access to the Justice System: An Examination of Alberta's New Minor Injury Cap in the Context of Section 15 of the Canadian Charter of Rights and Freedoms
Authors: Billingsley Barbara
Published: December 2018

This article surveys the provisions in Alberta s new legislation limiting recovery for motor vehicle accident victims suffering from minor injury. author argues that the legislation effectively limits access to the justice system for a class of persons (those suffering minor injury) and this constitutes a violation of the equality guarantee in s. 15 of the Canadian Charter of Rights and Freedoms. She then outlines the practical impact of the legislation and employs the Law Test with reference to Nova Scotia (Workers' Compensation Board) v. Martin and Hernandez v. Palmer. These two cases dealt with situations where legislative distinctions between types of injury sufferers were struck down and upheld, respectively. The author emphasizes notions of fairness and access to the justice system in concluding that Alberta's legislation is an example of poor civil justice reform because it discourages and impedes deserving claims. The article concludes by urging a reconsideration of the legislation even in the absence of a constitutional challenge.
The Civil Justice System and the Public: Highlights of the Alberta Pilot
Authors: Gander Lois , Lowe Diana , Stratton Mary
Published: December 2018

In 1999, the Canadian Forum on Civil Justice initialed the "Civil Justice System and the Public," a research program designed to study the state of communication between the civil justice system and the public and to develop practices to improve communication so that the public can become more involved in civil justice reform. The goal of the project is to make specific and clear recommendations for effective change that will ultimately improve access to the civil justice system by increasing the ability of the system to hear, involve and respond to the public. Researchers from the Canadian Forum on Civil Justice and the University of Alberta are joined by partners from across Canada in academia, the judiciary; the legal profession, court administration, public legal education agencies, community organizations, private consultants and the public in a collaborative and multidisciplinary research alliance. The extensive partnership and our collaborative approach to the research are key to our "action research " design, which involves our partners in the drafting of research questions, data collection, analysis and dissemination. Through the active and engaged participation of our partners, our findings are broadly known, understood and acted upon, ensuring that change is promoted through the process of conducting the research itself. This article outlines the major features of the study and the findings, recommendations and conclusions arising out of the pilot study conducted in Alberta.
Through the Looking Glass: Mediator Conceptions of Philosophy, Process and Power
Authors: Hanycz Colleen M.
Published: December 2018

While a number of civil reforms using mediation emerged across Canada in recent years, of particular interest is the Ontario Mandatory Mediation Program Mediation Program that was first piloted in 1999, deemed successful and then made a permanent feature of the Rules of Civil Procedure in 2001. This article suggests that before we can evaluate the outcomes of mandatory mediation, we must first look more closely at the process being implemented by the mediators in this context. With that in mind, this article considers the ways in which the mediators themselves perceive of the mediation process. It reports on a qualitative study that examined the nature of mediator views on the topics of, inter alia, settlement orientation and
mediator power. This article advances the claim that mediator power Is, in fact, far greater than that held by the disputants or their advocates. This article suggests that this power, in the context of a mandatory mediation scheme, creates mediator self-interest in achieving high rates of settlement, regardless of whether or not settlement is in the best interests of the disputants in every situation.
Rules of Court Project
Authors: Lown Peter J. M.
Published: December 2018

This article describes the Rules Project taken on by the Alberta Law Reform Institute to review and make recommendations for a new set of Alberta Rules of Court. Vie article sets out the project's objectives along with a background on the project’s consultation process and project organization.
Police Use of Conducted Energy Weapons: A Review of the Canadian Jurisprudence
Authors: Zaychenko Vladimir A. , Verdun-Jones Simon N.
Published: December 2018

This article analyzes the current Canadian legal framework that governs the deployment of conducted energy weapons (CEWs), such as tasers, and explores the ongoing public debate concerning its use in Canada. The tragic case of Robert Dziekanski’s death at the Vancouver International Airport raised concerns about the use of CEWs and triggered important changes in the CEW policies across Canada. Both the Kennedy and Braidwood Commission Reports have led to restrictions on the use of CEWs. In light of these reports, this article provides some insight into the nature and scope of criminal and civil litigation involving police use of the CEW. It highlights the perception of the CEW as a weapon reserved for use only in the absence of other less forceful options. This article also identifies the various grounds for bringing criminal charges and/or civil suits against individual officers, local governments, and manufacturers.
Kyoto, Constitutional Law and Alberta's Proposals
Authors: Bankes Nigel , Lucas Alastair R.
Published: December 2018

This article examines Alberta’s Bill 37, a provincial plan to reduce greenhouse gases and climate change, and explores the constitutionality of such legislation. Its main focus revolves around a constitutional analysis of Alberta's proposed legislation and its potential incompatibility with federal initiatives used to meet the Government of Canada's commitments under the Kyoto Protocol. In this discussion, the authors conclude that Bill 37 would likely be constitutionally valid under the provincial subject matter of property and civil rights, and possibly local undertakings and ownership of provincial public lands. However, the authors dismiss the argument that Alberta's legal position over any federal initiative would be bolstered by the Crown's ownership of provincial resources.

The article then looks to the federal government's Kyoto commitments and analyzes the constitutionality of possible federal initiatives under the federal subject matters of taxation, criminal law, trade and commerce and POGG. With both the Alberta and federal plans analyzed, the authors then discuss the potential incompatibility of the plans through three possible scenarios. The article concludes with a brief discussion of the other cooperative measures, such as equivalency agreements and incorporation by reference, which the federal and provincial governments may use to combat the issue of climate change.
Expert Evidence: The Ethical Responsibility of the Legal Profession
Authors: Bubela Tania M.
Published: December 2018

The author examines the ethical obligations of the legal profession in using expert evidence. The author surveys developments in Canadian and U.S. jurisprudence, procedural and substantive issues, and law reform initiatives on the admissibility and use of expert evidence in civil and criminal litigation. She proposes a "tripartite framework" to address the use of expert evidence: by strengthening professional codes of conduct to address ethical obligations in using experts; by emphasizing lawyers' obligations to improve the justice system; and by clarifying the criteria for admitting expert evidence.
Land Entitlement under Treaty 8
Authors: Metcs Robert , Devlin Christopher G.
Published: December 2018

This article provides an analysis of the land entitlement provisions of Treaty 8 as they relate to current federal treaty land entitlement (TIE) policy and to the judgment in Lac La Ronge. The authors identify and analyze significant textual, contextual, and historical differences between Treaty 8 and the previous seven numbered Treaties. On the basis of that analysis, the authors advance various proposals in support of a principled policy approach to determining the existence and extent of the obligations placed upon the Crown by Treaty 8 and the land entitlement provisions contained therein.
Gene Patents, Human Clones, and Biotechnology Policy: The Challenges Created by Globalization
Authors: Caulfield Timothy
Published: December 2018

In this article, the author explores the implications of globalization on human cloning laws and genetic patent policy, both domestically and internationally. From an international perspective, diverse moral and socio-political positions make cooperation in these areas particularly challenging. As a result, formulating domestic policies becomes challenging as well: should countries try to predict international consensus, or develop strong domestic policies of their own? While there is no clear answer, appreciating the complex issues involved is an essential step in the policy-making process.
Trade and the Environment: Competition, Cooperation or Confusion
Authors: McRae Donald
Published: December 2018

The intersection of international trade law and environmental sustainability has been subject to much scrutiny, both in the media and in internationally constituted bodies. Views on the impact of trade on the environment range from one of mutual benefit to an assertion of real threat. The author assesses the bases upon which criticism of the WTO is commonly levelled, and provides a reasoned analysis of the nature of the trade and environment debate. In addressing this question, the author examines the purview of the WTO pertaining to trade law, and delineates to what extent environmental protection encroaches upon international trade obligations. To this end, the author considers the means by which conflicts between trade and the environment have been reconciled, and draws attention to issues that obstruct resolution. Lastly, concerns central to the trade and environmental regulatory schemes themselves are raised. The author concludes that the long term viability of international trade equally benefiting the developed and developing world is dependent upon corresponding environmental regulation.
Standing to Sue and Multiple Defendant Class Actions in Australia, Canada, and the United States
Authors: Morabito Vince
Published: December 2018

Recent decisions by appellate courts in Australia, Canada, and the United States provide an ideal opportunity to explore an important issue concerning the class action procedure, which has been largely ignored by legal commentators in Australia and Canada and has received, in the author's opinion, inadequate attention in the United States. The issue in question concerns the availability of the class action device where the representative plaintiff is seeking to initiate a class proceeding against more than one defendant but does not have individual standing to sue all of the proposed defendants.
The Snail and the Ginger Beer: The Singular Case of Donoghue v Stevenson, Matthew Chapman (London: Wildy, Simmonds & Hill, 2010)
Authors: Kleefeld John C.
Published: December 2018

When 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.
Civil Procedure and Practice: Recent Developments
Authors: Poelman Glen H. , Godnar Eugene J. , McCallum Wendy K. , Maxwell James F.
Published: December 2018

This article provides an overview of recent leading developments in the law and practice of civil procedure. The focus is on procedural rather than substantive law. The discussion includes recent procedural changes regarding pleadings, discovery, interlocutory applications, evidence, modes of trial and the calculation and apportionment of costs.
In a Poor State: The Long Road to Human Rights Protection on the Basis of Social Condition
Authors: Iding Lynn A.
Published: December 2018

This article examines how poverty in Canada might be alleviated with different forms of human rights protection that include protection from discrimination on the basis of social condition. Social condition discrimination could include denial of goods and services based on stereotypes of poverty, or could include disadvantage resulting from actual inability to pay. If based only on stereotypes, the author argues, social condition would be differentiated from other grounds of discrimination. Poor people need to be protected from the prejudice of others as well as the effects of being poor, and this may be accomplished by incorporating full social condition protection in both human rights legislation and the Canadian Charter of Rights and Freedoms. Canada has international obligations concerning poverty, and those obligations are sometimes recognized by the courts in their decisions. However, economic rights have been consistently rejected as having Charter protection, perhaps out of fear that courts would be commanding the government to create or alter social programs. The author concludes that the Charter might still be the most effective place for economic rights, placing the initial onus more on the public sphere, which would at the same time consequently distribute some of the financial burden in the private sphere.
Introduction
Authors: Napoleon Val
Published: December 2018

Val Napoleon is the Coordinator for this Special Issue of the Alberta Law Review on Restorative Justice. In this issue, we present a range of articles that explore some of the many critical questions in the contested and dynamic field of restorative justice. We set out to provide a space for a deep and critical engagement with the complex questions and issues in the field and, with this issue, we have succeeded in creating just such a space where these challenging conversations can take place. This issue brings together an interesting and diverse group of nine authors who bring different perspectives, experiences, and wide-ranging approaches to both the practice and theory of restorative justice.
Advocacy in the New Millennium
Authors: Ferguson Fred
Published: December 2018

Practicing good advocacy in the new millennium may not be that different than it was in the century just past. What is different are some of the new challenges to be faced in becoming and remaining an effective and successful advocate. The foundations of skillful advocacy are best set down at the outset of one's legal career, and the development of the art must at all times be considered from its human, legal, and ethical sides. While the evolution of the practice of law is built upon the careful and steady historical ascendancy of precedent, there are practices and rules in our age that need to be critically examined. In this lecture, delivered before an audience comprised mainly of people newly entering the legal profession, the author shares his thoughts on the contemporary practice and ethical strictures of good advocacy. He draws on a wide body of knowledge, personal experience, and established practices in the legal profession, and imparts lessons on a thorough range of advocacy topics, including the importance of preparation and presentation, the art of examination and cross examination of witnesses, and tactics for addressing juries.
Necessity and Death: Lessons from Latimer and the Case of the Conjoined Twins
Authors: Trotter Gary T.
Published: December 2018

The availability of the defence of necessity in cases of homicide is a complex issue in both Canadian and British jurisprudence. This article examines the divergent judicial and academic views and argues that, while necessity may be available for certain kinds of homicide, it should be rejected as a legitimate defence to intentional killings. The author looks closely at two recent cases in which the question arose as to whether or not killing a human being is ever justifiable or excusable on the basis of necessity: the Canadian case of R. v. Latimer and the British case of Re A (Children). The author argues that the approach of the Latimer court is preferable, advancing this position from a number of angles. Underlying rationales for the defence of necessity in Anglo-Canadian jurisprudence are examined, as well as the conceptually similar defence of duress, both at common law and in s. 17 of the Criminal Code. Both of these points are reinforced and analyzed via a discusion of the sanctity-of-life principle in Canadian criminal law. Tlie article makes clear the essential nature of the issues raised in both Latimer and Re A (Children), as they engage fundamental questions of value for our society.
Loyalty and Distinctiveness: A New Approach to the Crown's Fiduciary Duty toward Aboriginal Peoples
Authors: Coyle Michael
Published: December 2018

As a tool to protect the distinctive elements of Aboriginal cultures, the Supreme Court's current approach to s. 35 of the Charter has significant limitations. The judgments of the majority and of the minority in R. v. Mitchell illustrate these limitations, but also hint at the possibility of a fuller, more coherent protection of Aboriginal rights. This article argues that the Court should recognize that the Crown has a fiduciary duty to negotiate in good faith a "protected space" for those Aboriginal institutions necessary for cultural survival.
Preventing an Agunah Crisis in the Wake of the World Trade Center Disaster by Establishing Death through Various Forms of Evidence
Authors: Nathan Leora
Published: December 2018

According to Jewish law, specific evidence confirming the death of a man is needed before his widow is able to remarry. In situations such as the attacks on the World Trade Center, where many victims could not be identified on the basis of their remains alone, evidence traditionally tendered to establish death was largely unavailable. This meant that a relaxation of some of the more stringent requirements for proof of death was required, and that some additional, novel categories of evidence had to be considered in establishing death. DNA fingerprinting and dental records are among the evidence that rabbis now consider to have some probative value in establishing death. In addition, telephone calls made and e-mails sent by the victims just prior to the attacks could be used as proof of presence within the towers. When considered in conjunction with assessments of the probability of escape from a given location within the towers, this evidence is given greater weight. The combination of traditional identification signs, processes and principles of proving death and the more recently acceptable methods has the effect of decreasing the waiting period before which a Jewish woman can conclude that her husband has perished, and can thus effectively bring some closure to a tragic circumstance.
Toward Animal Liberation - The New Anti-Cruelty Provisions in Canada and Their Impact on the Status of Animals
Authors: Letourneau Lyne
Published: December 2018

There has been a progressive change in western philosophical thought regarding animals. While animals were once regarded as objects, valuable solely in relation to their use to humans, there is now a substantial movement to recognize animals as inherently valuable and deserving of the same moral status as humans. Thus change in attitude is not reflected in amendments to the Criminal Code anti-cruelty provisions. Vie new provisions recognize that animals have the capacity to feel pain. However, the provisions do not protect animals independently of the benefits that animals provide to humans. Still categorized as property, animals do not share the moral status of humans. Further, under the new provisions, animals do not have legal rights. Therefore, despite changes in the law regarding animals, no animal liberation is taking place.
Crafting Youth Sentences: The Roles of Rehabilitation, Proportionality, Restraint, Restorative Justice, and Race under the Youth Criminal Justice Act
Authors: Anand Sanjeev
Published: December 2018

The author examines the scope and direction of legislative guidance in assessing youth sentences under the Youth Criminal Justice Act is contended that the Act does not support a reduction in otherwise proportional youth sentences on the basis of rehabilitative concerns. Proportionality of sentences is a primary concern, but considerations such as restraint, rehabilitation, and restorative justice may affect a sentence's conditions or form. The Youth Criminal Justice Act contains clear direction to limit the over-use of custody for youth. Aboriginal offenders are subject to a different methodology for determining sentences, with proportionality considered one of many concerns, rather than the principal one as it is for non-Aboriginal offenders. The author suggests that the judiciary will determine whether the Act's provisions will succeed in altering youth sentencing patterns, and that those efforts may be hindered by a lack of alternatives if provincial and federal governments do not invest in non-custodial sentencing options
The Role of Crime Victims under the Youth Criminal Justice Act
Authors: Roach Kent
Published: December 2018

The author analyzes the role of victim involvement in extrajudicial and judicial measures under the Youth Criminal Justice Act and the overall direction of victim involvement and its possible impact on the development of youth justice. Unlike the Young Offenders Act, victim concerns are specifically recognized throughout the Youth Criminal Justice Act. With respect to judicial measures, reparation should be interpreted broadly to include young offenders' genuine attempts to make good the harms they have caused. The concept of reparation should provide an equal opportunity to pay the costs of crime. With respect to extrajudicial measures, the role of victims is difficult to assess. Tlie author encourages greater utilization of family conferences, as this extrajudicial measure has enjoyed success in New Zealand in reducing youth imprisonment and producing significant levels of victim satisfaction. Victims may well play an increased role under the Youth Criminal Justice Act but the actual effect of both punitive and non-punitive forms of victim involvement will depend on how the new Act is administered.
The Role of Counsel in the Youth Criminal Justice Act
Authors: Wilson Larry C.
Published: December 2018

The proper role of counsel in youth court has always been somewhat uncertain. Historically, there was resistance to the idea of active participation by counsel. This began to change with the introduction of the Young Offenders Act and the process continues with the Youth Criminal Justice Act Counsel are under a legislated and ethical duly to take instructions from their clients and advocate their behalf in the same fashion as with adult clients. However, the Youth Criminal Justice Act does not address two fundamental issues: I) who pays for the provision of legal services; and 2) from whom does counsel receive instructions. These unanswered questions, and the complex nature of the legislation, further complicate the role of counsel in youth court.
The Rest of the Story of R. v. Stinchcombe: A Case Study in Disclosure Issues
Authors: Phillips John Kingman
Published: December 2018

Stinchcombe is a decision which is oft-quoted but not well understood or properly interpreted by the courts. This article reviews the facts of the Stinchcombe litigation and suggests that the Courts have failed to properly apply the principles enunciated therein. In the initial Supreme Court decision Sopinka J. suggested the adoption of the civil model of pretrial disclosure in the criminal context: the Crown, he suggested, should err on the side of inclusion and consider it a constitutional duty to disclose everything that could be relevant to the case. The courts have failed to properly apply this decision, as evidenced by the judicial interpretation of "relevance," the expectation that defence counsel will police prosecutors' compliance with the disclosure obligation, and the failure of the courts to apply appropriate remedies or sanctions where disclosure obligations have not been properly met. The author suggests that practitioners should reconsider the principles of Stinchcombe, especially in light of proposed changes to the Alberta Rules of Court which might make disclosure requirements in the civil process less stringent.
The Frayed and Tarnished Silver Thread: Stinchcome and the Role of Crown Counsel in Alberta
Authors: Luther Glen E.
Published: December 2018

The Supreme Court of Canada has repeatedly stressed that, in their roles as Crown prosecutors, Crown counsel must act as ministers of justice in order to protect against wrongful convictions. Historically this obligation has been referred to as a silver thread woven into "the web of Canadian criminal law."

Central to this quasi-judicial Crown obligation is disclosure. In this article, the author contends that the Supreme Court ideal of Crown prosecutors acting as ministers of justice and making full disclosure does not correspond with reality. Rather, it is asserted that the Crown delegates disclosure duties to the police, does not take disclosure obligations seriously, and is not held responsible by the courts for failure to disclose. The author argues that until the Supreme Court clarifies the required scope of disclosure, especially as regards Charter defences; until Crown prosecution offices are prepared and equipped to take the disclosure role seriously; and until the courts enforce this role; there will continue to be wrongful convictions due to lack of disclosure.
The Devil Is in the Disclosure: The Role of R. v. Stinchcombe in Establishing Appropriate Disclosure Rules for Administrative Tribunals
Authors: Woolley Alice
Published: December 2018

This article examines disclosure rules for administrative tribunals in light of the decision of the Supreme Court of Canada in R. v. Stinchcombe. The pre- and post-Stinchcombe administrative law cases relating to document disclosure are discussed with a view to determining the effect that Stinchcombe has had on the administrative process. It is argued that Stinchcombe has had a significant impact on judicial and legislative opinions regarding the importance of document disclosure on procedural fairness in administrative decision-making. However, the application of Stinchcombe in administrative law cases has been neither complete nor unanimous. The appropriateness of the principles of Stinchcombe in the context of proceedings before an administrative tribunal are discussed with specific regard to proceedings before the Alberta Energy and Utilities Board.
A Triumph of Liberalism: The Supreme Court of Canada and the Exclusion of Evidence
Authors: Parfett Julianne
Published: December 2018

The common law has historically defined self- incrimination narrowly. Using Packer's models of the criminal justice system as a framework, the article examines the Supreme Court of Canada's interpretations of s. 24(2) of the Charter. The Court has expanded the definitions of both self incrimination and remoteness. The author argues that s. 24(2) has ceased to be a remedy requiring the balancing of interests and has become a quasi- automatic rule of exclusion, which promotes individual rights at the cost of victim's rights. Further, in the Court's zeal to protect the integrity of the system, there is no allowance made for the seriousness of the breach, the consequences of the exclusion, or the causal connection between the breach and any evidence obtained. The author argues that this has resulted in a justice system more concerned with police behaviour than with the pursuit of truth. Instead, either the exclusionary rule must be used to foster a balance of individual and communitarian rights, or other more imaginative remedies should be crafted from s. 24(2) to protect the integrity of the legal system.
Searching for Truth but Missing the Point
Authors: Kilback Keith D. , Tochor Michael D.
Published: December 2018

This article explores the shift from the traditional conceptualization of a criminal trial as an independent testing of facts to the standard of proof beyond a reasonable doubt, to a more recent view of the trial as a search for the truth. perception

The authors contend that the "search for truth " approach imports two major flaws into the judicial process. First, it is impossible for a trier off act to actually know the truth; and second, because the concept has never been judicially defined, its use allows courts to justify whatever policy decision is being made.

The authors conclude that the traditional view remains the better view, because the fundamental point of a criminal trial is not to determine what is true, but rather to determine whether the accused is guilty beyond a reasonable doubt.
Environmental Protection and Oil and Gas Production in the Nova Scotia Offshore: A Guidelines Approach to Operational Discharges
Authors: Manolis Mikis
Published: December 2018

This article examines and describes the regulatory framework governing the production of oil and gas in the Nova Scotia offshore. Specific attention is given to the ecological dangers posed by operational discharges into the marine environment by the oil and gas industry. The regulation of operational discharges under the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the role of guidelines in this regard is discussed. It is argued that the attempted use of guidelines by the Canada-Nova Scotia Offshore Petroleum Board to impose binding requirements on operators is beyond its statutory authority. The administrative problems associated with these "mandatory" guidelines are also discussed.
Expressive Harms and the Strands of Charter Equality: Drawing out Parallel Coherent Approaches to Discrimination
Authors: Levy Ron
Published: December 2018

"Expressive harms " are rights violations that may arise from governmental expression through laws or state action, even absent material or otherwise tangible harms. Same-sex marriage provides an example: having won rights to most marriage- related economic benefits in M. v. H., gays and lesbians nevertheless fought for state recognition of their marriages in Halpern v. Canada The author delineates three conceptions of expressive harms. Among these are what may be termed "direct dignity harms"; on this conception, some forms of state expression exert effects upon human dignity without intermediate steps (for example, stereotyping) or ultimate material consequences (for example, exclusion from benefits). The author provides, in particular, an account of direct-dignity expressive harms and relates this account to the equality jurisprudence of s. 15 of the Charter. Finally, the author shows how the Supreme Court of Canada has implicitly incorporated expressive insights within s. 15, but suggests that the Court has done so with some incoherence. By failing to make explicit its reliance on several expressive and other rationales, the Court has produced an equality test with requirements derived from various conflated equality approaches, rendering the test unnecessarily onerous for some claimants.
Economic Instruments and the Kyoto Protocol: Can Parliament Implement Emissions Trading without Provincial Co-operation
Authors: Barton Philip
Published: December 2018

The ability of the federal government to ratify the Kyoto Protocol — the international treaty to reduce greenhouse gas emissions — is uncontested by provincial governments. However, the recent provincial opposition to this treaty could result in a constitutional challenge to Parliament's domestic implementation of the binding emission targets. This potential challenge is a result of the uncertainty in Parliament's authority to implement the necessary legislation. This article examines the federal authority to implement emissions trading — an economic instrument into which the federal government has invested a considerable amount of research in recent years. As possible reliance for Parliament's jurisdiction over trading, three federal powers are investigated: the peace, order and good government power, the criminal law power and the trade and commerce power. While there are difficulties with reliance on each of these powers, the peace, order and good government power is likely to provide the strongest argument for federal jurisdiction. Given the federal government's lack of clear legislative authority for trading, this article finishes by examining the alternative economic instrument of emissions taxation, concluding that Parliament's power to implement taxes is much more certain.
The Admissibility of Young People's Statements under the Proposed Youth Criminal Justice Act
Authors: Anand Sanjeev , Robb James
Published: December 2018

This article examines the impact of Bill C-7, the Youth Criminal Justice Act, on the admissibility of young people s statements. Although the proposed reforms appear to leave admissibility within the discretion of youth court judges, the authors argue that the YCJA significantly curtails the types of factors that judges can consider when assessing the admissibility of youth statements. The three sources of law applicable to young offender statements are examined: the legislative provisions, the common law rules of voluntariness, and ss. 7, 9, and 10 of the Charter. The authors analyze s. 146 of the YCJA, the applicable section to youth statements, and compare it to the previous version of the Bill and to the current provisions of the Young Offenders Act The case law concerning voluntariness and Charter rights are also discussed, as well as the potential interrelationship between the three sources of law. In addition, the article explores when youth statements made to a person not in authority will be inadmissible.
Directing Traffic at the Crossroads of Criminal Justice and Mental Health: Conditional Sentencing after the Judgment in Knoblauch
Authors: Roberts Julian V. , Verdun-Jones Simon
Published: December 2018

The issue of conditional sentencing in relation to mentally disordered offenders was recently addressed by the Supreme Court of Canada in R. v. Knoblauch. This article examines the context in which the Knoblauch decision was made by reviewing the incidence of mental disorders in correctional populations and the criminal justice system s response. The authors explore Knoblauch's implications on the conditional sentencing regime as a whole and its use as a sentencing tool for dealing with mentally disordered offenders.
A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity
Authors: Berger Benjamin L.
Published: December 2018

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.
Liability for Suspension/Discontinuation, Abandonment and Reclamation in Alberta: An Update
Authors: Vlavianos Nickie
Published: December 2018

This article outlines the current regulatory framework for suspension/discontinuation, abandonment, and reclamation liabilities in Alberta. The focus is on the recent amendments introduced by the Energy Statutes Amendment Act, 2000. First, jurisdictional issues that arise regarding these liabilities are discussed. Then the current liability regime for the suspension and abandonment of oil and gas wells and other upstream facilities is reviewed. A similar review is conducted of liabilities associated with discontinuing and abandoning pipelines in Alberta. The liability regime applicable to the reclamation of wells, facilities, and pipelines is then considered. The article concludes with a review of the Energy Statutes Amendment Act's, 2000 amendments to the Orphan Fund.