bluuebunny/crossref_metadata_2025 huggingface dataset:
When Insolvency and Restructuring Law Supercedes Contract
Authors: Greenfield Don , Maguire Pat , Spencer David , Lenz Ken
Published: January 2019

The 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.
Recent Judicial Developments of Interest to Energy Lawyers
Authors: Bright Jeff W. , Burgess And Patrick W.
Published: January 2019

This article provides an overview of recent judicial developments of interest to energy lawyers. The authors summarize and provide commentary on recent Canadian case law in the areas of: Aboriginal law, conflict of laws, contracts, environmental law, securities law, taxation, joint operators, bankruptcy law, freehold leases, administrative law, and rights of first refusal.
Circular Priorities in Secured Transactions Law
Authors: Wood Roderick J.
Published: January 2019

Circular priority problems are endemic in secured transaction law. A circular priority situation arises when there are three or more parties with competing claims to the same asset and there is no clear ranking of priority among them. There are multiple approaches applied by courts or advanced by commentators to resolve circular priority problems. The different mechanisms used by the courts to resolve a circular priority problem are evaluated using criteria that reflect the general values and goals of commercial law, and the mechanism that best accords with this criteria is identified. Although consensus on the best way of breaking a circularity will reduce litigation
costs, it does not provide a complete solution, as it can be undermined by ex post bargaining among creditors. Given this instability, priority rules should be designed so as to limit the occasions when such problems can arise.
The Problematic Revival of Murder Under Section 229(c) of the Criminal Code
Authors: Roach Kent
Published: January 2019

This article examines the increased use of the murder offence under s. 229(c) of the Criminal Code/. It outlines how the objective foresight of death arm of s. 229(c) was struck down by the Supreme Court of Canada in R. v. Martineau, but still has not been repealed by Parliament. Three unfortunate cases are examined where trial judges erred by leaving the jury a copy of s. 229(c) with its unconstitutional objective arm present. The article examines the pre-Charter jurisprudence on s. 229(c) and suggests that the requirement that the accused have an unlawful object that is distinct from the actions that led to the death of the victim is still an important requirement. It then focuses on the second and most important mens rea requirement of s. 229(c), namely the requirement that the accused know that death was likely to occur. This fault requirement is examined and contrasted with recklessness and objective foresight of death, both of which are not constitutionally sufficient for a murder conviction. It is argued that some recent cases have treated accidental deaths during the pursuit of an unlawful object as murder under s. 229(c) and that such a result violates s. 7 of the Charter, including principles of fundamental justice that accidental deaths not be punished as murder and that unintentional harms not be punished as severely as intentional harms.
Intimate Femicide: A Study of Sentencing Trends for Men Who Kill Their Intimate Partners
Authors: Grant Isabel
Published: January 2019

This article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that sentences for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor and changing social attitudes have resulted in increasingly severe sentences for spousal manslaughters. While a large number of the cases in this sample involved the intoxication of the accused and/or the victim, the defence of intoxication rarely reduced murder to manslaughter. Similarly, the number of successful provocation defences was lower than expected.
Serious Occupational Health and Safety Incidents in the Oil and Gas Industry: Legal Issues and Recommendations
Authors: Grier Kelli , Snidell E. Jane
Published: January 2019

Written primarily for in-house counsel, this article addresses some of the complex legal issues that arise in response to a serious incident in the oil and gas industry. The authors review the relevant reporting obligations under the Occupational Health and Safety Act and provide an overview of the legal issues relating to the privacy of medical records, drug and alcohol testing, privilege, and legal holds. The authors conclude by offering their recommendations regarding policies that should be in place before an incident occurs, as well as actions that should be taken in the immediate aftermath of any serious incident.
A Tale of Two Provinces: Imposing Greenhouse Gas Emissions Constraints Through Law and Policy in Alberta and British Columbia
Authors: Meadows Teresa , Crossman Tony
Published: January 2019

In Canada, there has been much discussion regarding the best approach to reducing greenhouse gas emissions. These discussions have moved beyond theory in two provinces that approached the issue from two very different vantage points. Alberta and, more recently, British Columbia have introduced their own legislative responses to reducing emissions on a provincial level. This article provides an overview of the “tale” of two provinces grappling with some of the thorniest greenhouse gas regulatory issues, including the establishment of emission limits, developing frameworks to govern processes and practice for carbon trading, and developing mechanisms to address regulation and funding of carbon capture and sequestration projects. The article concludes with a review of some of the challenges created for the oil and gas sector by the differing visions incorporated in the legislative and policy responses of the two jurisdictions, and identifies key challenges to harmonization of these efforts across Canada.
Matrimonial Property Law: The Movement towards Equality - Separation or Community?
Authors: Stone Olive M.
Published: January 2019

The influence of the common law on the development of matrimonial property law in Canada is discussed in this historical view of the subject. Separation of property and community property are explained, with illustrations from Commonwealth cases. In conclusion, the author compares the legislation which has been enacted in selected foreign jurisdictions with that which exists in Canada, and suggests personal view of the main principles to be considered in any current legislation.
Statutory Limitation Periods in Alberta Statutes: 1976 Update
Authors: Of the Alberta Law Review The Editorial Board
Published: January 2019

In the third issue of its 1974 volume the Alberta Law Review presented the first comprehensive compilation of limitation periods in Alberta statutes done since 1962. The materials presented in the current volume are an effort to continue this project on an annual basis. As was the case with the 1974 compilation, these materials were prepared by the Institute of Law Research and Reform at the request of the current editor of the Alberta Law Review. While every effort at thoroughness has been made, the Institute of Law Research and Reform does not represent the absolute accuracy or absolute coverage of the limitation periods in the 1975 Statutes of Alberta. Again, it should be noted that no reference has been made to the Alberta Regulations with respect to limitation periods, and the reader is advised tohave regard to the provisions of the Interpretation Act, R.S.A. 1970, c. 189 with respecttothe computation of time.
Government Management of Oil and Gas in Alberta
Authors: Crommelin Michael
Published: January 2019

The author surveys, in considerable detail, the broad spectrum of provincial legislation and regulations relating to the exploration, development, and marketing of conventional Crown-owned oil and natural gas in Alberta. He evaluates and criticizes government management of these resources by reference to two criteria. The first such criterion is that of optimum "efficiency", which the author describes as being such allocation of labour and capital at such time as will result in the maximum possible net benefit to society. The se cond criterion is that of "equity", by which is meant distribution of benefits between government and private enterprise such that those revenues, in excess of necessary costs incurred and adequate compensation for risk-taking by private enterprise, accrue to the government. In applying these criteria, the author develops several criticisms of the excisting management system. He concludes by proposing several specific changes.
The Professional Athlete: Liberty or Peonage
Authors: Shapiro Daniel I.
Published: January 2019

A close scrutiny of the contractual relationship of the North American professional athlete with his team reveals serious restraints on the player's ability to freely choose his employer. The author presents detailed analysis of the four basic restrictions used in the major professional sports: the reserve system, the player draft, blacklisting, and the registration list. He then dis cusses current and proposed antitrust legislation in Canada and the United States, all of which appears to have little serious effect on the restraints which, the author suggests, violate antitrust law. In conclusion the author comments on the soundness of traditional arguments used to support such restrictions, and suggests that presently the only means available to athletes to challenge the stranglehold of clubs and leagues is through negotiation and possibly player strikes.
The Participatory Environment in Alberta
Authors: Elder P. S.
Published: January 2019

The compiled materials on Statutory Limitation Periods in Alberta Statutes which appear in this edition of the Alberta Law Review were prepared by the Institute of Law Research and Reform pursuant to proposal made by Mr. Gerald Masuch, the editor of the Alberta Law Review in 1973-1974. Whereas the materials gathered represent an attempt to be as thorough as possible in locating the limitation periods contained in the Revised Statutes of Alberta 1970 and the subsequent yearly volumes of the Alberta Statutes through 1973, the Institute of Law Research and Reform does not represent the absolute accuracy or absolute coverage of this material which should, in this event, not be considered as exhaustive. It is to be noted in this regard, that no perusal was made of the Alberta Regulations to determine, inter alia, the existence or otherwise of any limitation periods which might affect the viability of cause of action or the jurisdiction of an ad ministrative board or tribunal. It is hoped that this compilation of limitation periods will serve as han dy reference to members of the legal profession in the Province as well as others who may have dealings which require the strict compliance with statutory procedures. The use of such reference should not, of course, be a substitute for direct reference to the statute(s) in question.
A Proper Law of Torts in the Conflict of Laws
Authors: Lown Peter J. M.
Published: January 2019

The subject examined by this thesis is the conflicts rules which should be applied to determine liability in tort actions, and the question of whether or not "proper law" approach could be adopted in this particular area. It is submitted, in Section I, that changing circumstances and changing theoretical bases for conflict of laws, are reasons for fresh look at the area of torts in the conflict of laws. Moreover it is submitted, in Section II, that such fresh look should be firmly based on funda mental policies of conflict of laws generally, such as the absence of forum-shopping, the convenience of the parties and the achieving of uniform result whatever the forum of particular action. The existing rules are examined in the light of their application to the varying circumstances which can arise in tort actions. In addition critical examination of the existing rules is attempted, in respect of the require ments of identifying the locus delicti, and whether the existing rules relate to choice of law or jurisdictional questions. The "proper law" concept is suggested as solution to the problems arising from this critical examination, and is buttressed by the operation and use of such a concept in other areas of the law, such as contracts and recognition of foreign divorce decrees. Since the "proper law" approach has been adopted in the United States, it is necessary to examine the experience in those jurisdictions. This examination deals with the "proper law" aspect generally, and more particularly, its application in specific areas such as contributory negligence and vicarious liability. It is suggested that selective borrowing from the United States experience, excluding the policy gloss which has been placed upon the "proper law" approach in that country, would be profitable in Canada. Finally, it is suggested that "proper law" approach would be an appropriate solution and is supported by present judicial attitudes.
Sunday Observance Legislation in Alberta
Authors: Curtis Robert
Published: January 2019

With the increasing emphasis ofsecularization in our society, and the declining importance of religious activities, Sunday observance legislation may have lost its original impetus. Mr. Curtis, in this article, examines the historical development and the present state of Sunday observance legislation in terms of its continued validity. By analyzing the recent cases ofBoardwalk Merchant's MartandRobertson&Rosetanniv.The Queen,he raises important questions as to whether such legislation is constitutionally valid Dominion Legislation, either as criminal legislation, or in view of the Canadian Bill of Rights. But even though he concludes that the decline of religious significance of the legislation and its resulting secularization may have removed it from the domainoffederal power, Mr. Curtis suggests that such legislation may not be either appropriate provincial legislation in this "day and age", or even value in terms of the Alberta BillofRights.
The Very Model of a Modern Law Society
Authors: Hurlburt, Q.C. W. H.
Published: January 2019

At time in which the nature of self-governing professions, particularly the legal profession, is the subject of considerable public and legislative concern, it is increasingly important that decisive statement of the present situation be made. Mr. Hurlburt explains the organization and functions of the Alberta Law Society, and while mentioning possible areas for improvement, stresses that the present system is operating substantially to the benefit of the general public. Further, he concludes that the existing organization, judging from its past accomplishments, is best equipped to meet the challenges that will face the profession, and the society, in the coming years.
The Legal Aid Trade
Authors: Evans Christopher Dudley
Published: January 2019

Members of the Law Society of Alberta have undertaken to provide compre hensive legal aid service in order to enable Albertans of insufficient means to be represented by counsel in court. Mr. Evans feels the present legal aid system, while founded on strong theoretical basis, has not accomplished its objectives. The author points out that the system has experienced rising costs coupled with diminishing quality in the legal aid provided. Various abuses of the legal aid system are presented and Mr. Evans notes that the essential weakness of the system lies in its failure to provide defence counsel "approximating the ability of the Crown Prosecutor". To alleviate this inequity the author submits that Public Defenders Office should be established to operate on much the same basis as the Crown Prosecutors Office. This would consistently provide competent defence counsel who are acceptable to the court. Mr. Evans suggests, after review of the costs of the present system and of several Public Defender systems in the United States, that such counsel can be provided at less expense than the current legal aid system.
The B.N.A. Act and the Near Banks: A Case Study in Federalism
Authors: McDonald Patrick N.
Published: January 2019

The achievement of national economic goals through the management of our monetary system is a complex task. The regulation of banking is fundamental to that task and appropriately banking and the incorporation of banks have been placed within the exclusive legislative authority of the Parliament of Canada. However, the question of regulation does not end there as there exist numerous provincially incorporated entities whose functions correspond in varying degrees to those of chartered banks, but are neither called banks nor subject to federal legislative control. Professor McDonald attributes the escape of these institutions from federal influence, not to any confusion as to which level of government has authority to enact banking legislation but rather to the lack of "clear concept of the banking function". The author goes on to distinguish and examine the basic concepts of banking and assess the assistance which they may offer in clarifying the "banking function" for constitutional purposes. Through this analysis certain similarities or "common denominators" between the chartered banks and "near" banks are discovered. However, it is the lack of concrete distinctions between the two which leads Professor McDonald to call for the integration of "specialist" banks into national banking system. The present hybrid system of regulation of financial "intermediaries" is confusing, and in many cases inadequate. Further, the uncontrolled competition which it allows between chartered banks and the "near" banks may seriously hamper Canadian monetary policy.
Law and the Thin Veneer of Civilization
Authors: Morrow Justice W. G.
Published: January 2019

Mr. Justice Morrow employs his sympathetic understanding of the North and it's native inhabitants in revealing discussion of the sudden, ap parent metamorphosis which has occurred as result of the recent advent of Canadian law and society in the Northwest Territories. The author con tends that although the physical attributes of Canadian society have been effectively superimposed upon the native culture, the experience of the Northwest Territory Courts suggests that the effect is merely superficial. Although uniformity of Canadian law is desirable, Mr. Justice Morrow argues that it is difficult and perhaps meaningless to achieve such uniformity through the arbitrary application of laws and penalties which are foreign to time honored native customs and cultures.
Rescuers and Good Samaritans
Authors: Linden Allen M.
Published: January 2019

In the past, tort law has displayed reluctance to impose a duty to rescue or to compensate rescuers injured during a rescue attempt Furthermore, tort liability has been imposed upon would-be rescuers whose incompetence has led to an abortive attempt. Professor Linden argues that this reluctance to promote rescue is out-dated in modern society which espouses humani tarian ideals. The author examines Canadian and English jurisprudence to demonstrate the recent recognition of the need to encourage and compensate Good Samaritans. New tort duties to render aid, which have been fashioned by analogy to criminal legislation, are analysed as well as the rescuer's duty which arises once the rescue has been undertaken. Professor Linden also dis cusses the applicability of the principle of voluntary assumption of risk to res cuer's claim for compensation for injuries sustained during the course of the res cue. The author concludes by suggesting that the concept of contributory negligence be used to dissuade rash rescue attempts in place of the current judicial practice of complete denial of compensation.
Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract
Authors: Marinett Matthew
Published: January 2019

This article puts forward a unifying principle for the exceptions to contractual enforcement, including unconscionability, undue influence, duress, and mistake. In coming to a unified analysis, this article explains and defends three general premises. First, contract law should be understood as operating to maximize societal welfare in the aggregate. Second, contractual enforcement encourages and enforces welfare-enhancing agreements, but only if we can assume that each party is able to rationally consider her own self-interest. Third, agreements that were rationally welfare-enhancing when made should be enforced later even in cases of regret. Based on these premises, the analysis of unenforceability of unfair contracts can be reduced to two questions: whether, in the circumstances, parties to a contract were rationally able to consider and protect their self-interest, and, if not, whether the other side knew or ought to have known this.
Access to Justice Online: Are Canadian Court Websites Accessible for Users With Visual Impairments?
Authors: Rei-Anderson Cody , Reynolds Graham , Wood Jayde , Wood Natasha
Published: January 2019

Steps taken to make legal information available online have resulted in access to justice benefits for many. However, these benefits may not extend to everyone equally. As scholars have cautioned, the adoption of new technologies that purport to improve access to justice may perpetuate the exclusion of vulnerable and marginalized individuals and groups from the justice system. This article applies this insight to legal information made available online by Canadian court websites and CanLII.It does so through a two-part study. First, we used an automated testing tool to determine whether the websites noted above comply with accessibility standards. Second, after having secured research ethics approval, we worked with Access & Diversity at the University of British Columbia to recruit persons with visual impairments; these participants evaluated the same websites and provided feedback. Our results showed that while largely accessible, the tested websites fall short of best practices, presenting challenges to users with visual impairments. We recommend that Canadian courts correct the deficiencies identified by our study, that other online legal resources be tested for accessibility issues, and that future research focus on the extent to which online legal resources are accessible to other vulnerable or marginalized individuals or groups. Implementing these recommendations will ensure that the access to justice benefits of online legal information are extended to everyone.
Introductions
Authors: Stevenson W.A. , Bowker Wilbur F.
Published: January 2019

Introductions
Novel Uses of the Charter Following Doré and Loyola
Authors: Cottrill Edward J.
Published: January 2019

Doré and Loyola affirmed that administrative decision-makers have a duty to balance statutory aims and values protected by the Charter. In several cases, decision-makers have weighed Charter protections and values on both sides of a contested issue. Sometimes this is a matter of a genuine conflict between different Charter restraints on the state. In other situations, Charter values or even Charter rights have been found to weigh on the side of state action, providing support and justification for an otherwise Charter-infringing state act. Such cases challenge an orthodox understanding of the Charter’s nature and role. In this article, the author describes the orthodox view of the Charter within a broadly classical liberal model; that is, as being a restraint on the state, as affecting government rather than private conduct, and as being a source of few free-standing positive entitlements. The author then describes the pre-Doré exceptions to these basic precepts and contrasts the uses made of the Charter by administrative decision-makers via the balancing prescribed in Doré and Loyola, noting where the outcome or analysis has challenged an orthodox conception of our Charter. The article then situates these developments within contemporary discussions of the relevance of orthodox liberal constitutionalism in Canada.
Keep Calm and ... Understand Cannibis: What Employers in the Energy Sector Want to Know About Legalized Cannabis in the Workplace
Authors: Wolch Shana , Lindner Justine , Demers Dan , Ratelband Ben
Published: January 2019

With the recent legalization of recreational cannabis in Canada, employers, particularly those with safety sensitive operations, are forced to evaluate the impact that cannabis will have on their workplaces. This article argues that the law has not yet fully evolved with the advances in scientific understanding of the effects of cannabis or the advances in the technology for testing methodologies. The article explores the current legal framework for workplace drug testing and provides best practices regarding drug testing programs and related workplace policies. It cautions that unless carefully designed, these policies may be found to be contrary to human rights or privacy legislation, or, in the case of unionized employers, unreasonable and outside the scope of the collective agreement.
The Legislature Strikes Back: The Effect of Ontario’s Bill 152 on the Statutory Duty of Care in the Peoples Decision
Authors: MacPherson Darcy L.
Published: January 2019

In this article, the author critically analyzes the
Supreme Court of Canada’s decision in Peoples
Department Stores Inc. v. Wise. This decision
interpreted s. 122(1) of the Canada Business
Corporations Act in a way so as to declare that it was
“obvious” that the duty of care placed on directors
and officers is owed to a broad range of beneficiaries,
including creditors. The author argues that the
decision, while defensible, was neither “obvious” nor
was it appropriate. The amendments to the Ontario
Business Corporations Act may come closer to the
intentions of Parliament in passing the Canada
Business Corporations Act. Furthermore, the rules of
statutory interpretation are employed to demonstrate
that the broadened duty of care found by the Supreme
Court may actually cause directors and officers to be
more self-interested, rather than putting the interests
of the corporation ahead of their own. Such a change
in approach may lead to statutory absurdity or a
violation of the presumption against tautology.
Therefore, a narrower duty of care, owed only to the
corporation, as enacted by the Ontario legislature,
should be recognized.
Doing “Practical Justice” for Duress in Contract Law
Authors: Ogilvie M.H.
Published: January 2019

Cases of duress in contract law are few and far between. Most are concerned with
improper threats or taking advantage of a weaker party to procure a contract rather than with
actual physical threats of the “[y]our money or your life” variety, which are more likely to
be controlled by the criminal law.
A recent decision on a preliminary issue of law in
relation to duress in the English Court of Appeal answered an interesting question that
appears never to have been raised in earlier cases about duress, that is, whether rescission
of a contract can be granted where restitution is impossible because one of the parties has
destroyed documents relating to the contract as required by the contract so that they could
not be restored. The trial judge found that rescission could not be granted and that no other
remedy was available in the common law for duress,
but the Court of Appeal reversed that
finding by assimilating the fact situation with those in which equity has done “practical
justice,” thereby further fusing the common law and equity relating to duress and undue
influence, and possibly also fraud as well.
The facts of this highly complex case, which also
involved conflict of laws, mistake, frustration, and uncertainty have yet to be resolved at trial,
but the Court of Appeal entertained two preliminary questions of law, duress, and conflict
of laws before sending the case to trial. This comment is focused on the duress point.
Lawyers as Quasi-Public Actors
Authors: Wendel W. Bradley
Published: January 2019

American lawyers are often conceived of as agents of the client (mere hired guns or mouthpieces for their client) who can select specific categories of clients at their discretion. However, the law governing lawyers as a whole is not purely private in nature as it does place some public duties on lawyers. An example of this is the rule in the American Bar Association’s Model Rules of Professional Conduct that imposes a duty on lawyers to provide pro bono legal services to those who need it. Although this duty is not enforceable through the disciplinary process, this responsibility will nevertheless continue to fall on individual lawyers due to the political realities in the United States. The author provides a justification for this unenforceable requirement by conceptualizing lawyers as quasi-public officials, thereby imbuing the lawyer’s role with responsibilities to both the client and to the legal system. Rather than being soley private actors, lawyers have a duty to act in the interests of justice, thereby ensuring “access to justice.”
An Introduction to the Use of Publicly Available Information in Assessing and Managing Aboriginal Risks
Authors: Carpenter A.W. (Sandy) , Feldberg Peter D.
Published: January 2019

The authors examine different strategies that oil and gas companies can use in assessing and managing the risks associated with the obligations owed to Canada's First Nations. The authors provide an introduction tothe use of publicly available information that can assist informulating risk strategies. After an overview of Treaty 8, the authors highlight information that is available with respect to certain First Nations in the Treaty 8 area.
Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers
Authors: Gruber John
Published: January 2019

This article canvasses significant regulatory and legislative development in oil and gas law during the period April 2004 to March 2005. Selected contributions of courts (the Federal Court of Appeal, Alberta Court of Appeal, and Alberta Court of Queen's Bench), regulatory bodies (the National Energy Board, the Alberta Energy and Utilities Board, and the Alberta Environmental Appeals Board), and legislators (at the federal and provincial levels) are summarized and analyzed, followed by a discussion of policy initiatives. The article deals with a variety of developments, highlighting themes of considerable importance to oil and gas Iaw.  These include: the continuing effects of GB 2003-028 on gas/bitumen conservation policy, the consequences of the recent regulatory decisions of the National Energy Board on TransCanada Pipelines Limited tolls on upstream and midstream companies and, more generally, changes to energy legislation in Alberta and British Columbia.
Recent Judicial Developments of Interest to Oil and Gas Lawyers
Authors: Stanford David J. , Smyth Sean S.
Published: January 2019

This article is intended to provide a brief review of recent Canadian judicial decisions of interest to oil and gas lawyers. The authors have surveyed Canadian case law in the areas of government regulation, contract, employment, rights of first refusal, royalties,injunctions, freehold leases, and other areas.
Will the Circle be Unbroken? Aboriginal Communities, Restora tive Justice, and the Challenges of Conflictand Change, Jane Dickson-Gilmore & Carol La Prairie
Authors: Cameron Angela
Published: January 2019

Book review of Will the Circle be Unbroken? Aboriginal Communities, Restora tive Justice, and the Challenges of Conflictand Change, Jane Dickson-Gilmore & Carol La Prairie (Toronto: University of Toronto Press, 2005).
Forging Alberta's Constitutional Framework, Richard Connors & John M. Law, eds.
Authors: Barrie Doreen
Published: January 2019

Book review of Forging Alberta's Constitutional Framework, Richard Connors & John M. Law, eds. (Edmonton: University of Alberta Press, 2005).
Public Video Surveillance by the State: Policy, Privacy Legislation, and the Charter
Authors: Lai Derek
Published: January 2019

This article explores the growing phenomenon of public video surveillance and how the law should protect an individual's right to privacy while providing for effective law enforcement. The author considers the positive and negative effects of surveillance and recent technological advancements that currently challenge courts, legislatures, and police forces. Canadian case studies from Kelowna and Edmonton are utilized to examine the role of federal and provincial privacy legislation, while the Supreme Court of Canada's evolving interpretation of s. 8 of the Charter is canvassed through an examination of jurisprudence involving public surveillance technology. Ultimately, the author concludes that public video surveillance is necessary but the law must control its use. Video surveillance via automated collection would resolve the "effectiveness versus privacy" policy debate by minimizing the potential for abuse.
Tessling, Brown, and A.M.: Towards a Principled Approach to Section 8
Authors: MacKinnon William
Published: January 2019

This article analyzes the Supreme Court of Canada's search-and-seizure jurisprudence in anticipation of the Court's forthcoming decisions on the admissibility of evidence obtained by police dog searches in Brown and A.M. After reviewing the historical development of s. 8, the author then goes on to discuss the strengths and weaknesses of the Court's analysis of sense-enhancing aids and the reasonable expectation of privacy' in Tessling. The article ultimately argues that the Court ought to eschew a case-by-case model for establishing the existence of areasonable expectation of privacy, and go beyond the facts of Brown and A.M. in order to adopt a more principled approach to s. 8. The author maintains that a more principled approach is necessary because stale actors need clearer guidance if they are to successfully balance individual privacy with the use of sense enhancing aids.
Improving Wrongful Conviction Review: Lessons from a Comparative Analysis of Continental Criminal Procedure
Authors: Saguil Paul J
Published: January 2019

The study of wrongfuil conviction has yielded much evidence outlining that factors such as mistaken identification, false confessions, unsavoury informants, and misconduct on the part of the prosecution, defence, and police, inter alia, are causes of wrongfuil conviction common to most, if not all, criminal justice systems. Despite the resurgence of scholarly and popular interest in the phenomenon of wrongful conviction, there are a number of gaps in our knowledge and there is little scholarship available that addresses the subject of this article.In this article, the author addresses the question posed by Professor and Dean of Social Ecology (University of California — Irvine) C. Ronald Huff: "Are some criminal justice systems more likely to produce wrongful convictions than others?" The author undertakes a comparative study of criminal procedure in France and Germany in order to critique and appraise the Canadian approach to wrongful conviction review. He argues that incorporating specific elements of Continental practice into our domestic procedures would substantially increase and improve the opportunities for correcting miscarriages of justice in Canada.
Through the Looking Glass, Darkly: Resurfice Corp. v. Hanke
Authors: Black Vaughan , Cheifetz David
Published: January 2019

No Abstract
Digging Below and Looking Beside the Wall of Ministerial Discretion: Licences after Saulnier
Authors: Weisenburger Christian
Published: January 2019

No Abstract
Corporate Governance in the Canadian Resource and Energy Sectors
Authors: Sarra Janis , King Vivian
Published: January 2019

This article reports the results of a qualitative empirical study of the corporate governance practices of 23 resource and energy sector firms in Canada. The authors examine public disclosure and other documents filed by subject firms in each ofthe oil and energy, oil and gas trust, precious metal and forestry sectors and compare the firms' governance practices against ten indicia of effective governance advocated by regulators and stock exchanges. The working hypothesis ofthe article is that due to the global scope of the subject sectors, the sample firms may be better developed than, or have unique qualities compared to, firms in other sectors. The authors conclude that the sample firms perform reasonably well against the ten indicia. However there are significant sectoral differences.The authors note nearly all subjects have adopted codes of corporate conduct and an overall commitment to comply with new, more rigorous audit committee standards. Weaknesses include a lack of board diversity as one indicator of board independence, lack of formalized continuing education and uneven evaluation processes for corporate boards. Although this study provides insight into Canadian resource and energy sector governance practices, the authors note the need to dedicate more resources to developing consistent and independent standards to use as benchmarks in evaluating corporate governance practices.
Privacy in the Age of the Internet: Lawful Access Provisions and Access to ISP and OSP Subscriber Information
Authors: Mayeda Graham
Published: January 2019

Bill C-30 (the Protecting Children from Internet Predators Act) and the Protecting Canadians from Online Crime Act are two recent attempts by the Canadian government to create incentives for Internet Service Providers (ISPs) and Online Service Providers (OSPs) to disclose the subscriber information of Internet users to government agencies. In this article, the author argues that while such provisions may not violate section 8 of the Charter based on current judicial interpretation, they ought to be found unconstitutional. To date, the Supreme Court of Canada’s search and seizure jurisprudence uses a normative framework that does not distinguish between defining the right to privacy and justifying limitations to it. This approach is not consistent with that taken for other Charter rights. The recent decisions of the Supreme Court in R v. Spencer and R v. Fearon may signal a slight shift, but they do not go far enough. If courts defined privacy interests more broadly than under current law and required the government to justify restrictions on these interests under section 1, this would create a legal regime that achieves a better balance between competing privacy and security interests.
Introduction
Authors: Robertson Gerald B.
Published: January 2019

None
Do We Really Need the Anns Test for Duty of Care in Negligence?
Authors: Blom Joost
Published: January 2019

Since its formal adoption in 1984, the Supreme Court of Canada has applied the Anns test31 times. This article uses those decisions to assess the test’s value in negligence law. Basedon that analysis, the Anns test has two disadvantages: (1) it treats dissimilar duty questionsas if they were alike; and (2) it can divert courts into an Anns analysis when a more directapproach to duty of care would be better. However, despite its disadvantages, three decadesof continued use by the Supreme Court makes it unlikely that the Anns test will beabandoned anytime soon.
Compliance with Canada's Trade and Investment Treaty Obligations: Addressing the Gap Between Provincial Action and Federal Responsibility
Authors: VanDuzer J. Anthony , Mallet Melanie
Published: January 2019

Provincial compliance with trade and investment treaty commitments is increasingly important. However, Canada’s federal system makes negotiating treaty obligations in the areas of provincial jurisdiction particularly difficult. This article analyzes the challenges related to treaty commitments in areas of provincial jurisdiction, revisits the Canadian constitutional allocation of responsibility for treaty negotiation, ratification, implementation, and compliance, and explores the prospects for using intergovernmental agreement to address concerns about provincial compliance.
Opportunities for Public Participation in the Regulation of Hydraulic Fracturing Operations in Alberta
Authors: Lucas Alastair , Lilles Heather
Published: January 2019

As the “anti-frack” movement gains momentum in society and the media, the oil and gas industry is faced with increasing demand for public participation and consultation in hydraulic fracturing operations. In Alberta, public participation has taken a number of forms, occurring during both the regulatory process and hydraulic fracturing operations themselves. This article analyzes the adequacy of these public participation opportunities by outlining the current opportunities for participation and the Alberta Court of Appeal’s rulings regarding the adequacy of notification and consultation. Ultimately, the article concludes that despite a number of new regulatory initiatives, opportunities for public participation in hydraulic fracturing operations have not increased. However, the article remains optimistic that changes can and should occur, increasing opportunities for public participation and improving the timing and quality of such consultation.
Inadequate Reasons: The Need for Tribunal Participation in Judicial Review Litigation
Authors: Neudorf Lorne
Published: January 2019

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Table of Contents
Authors: Ogbogu Ubaka , Hardcastle Lorian , Flood Colleen M
Published: January 2019

None.
Legal Mechanisms to Improve Quality of Care in Canadian Hospitals
Authors: Hardcastle Lorian
Published: January 2019

Tens of thousands of Canadians die each year as a result of preventable injuries sustained in hospitals. The patient safety literature suggests that we must implement systems and processes designed to prevent errors, rather than focusing on the mistakes of individual health professionals. Although the law tends to reinforce the provider-centric approach to errors, several law reforms have the potential to catalyze a systems-centric approach that finds support in the patient safety literature: shifting some liability from physicians to hospitals, reforming hospital governance practices, and reconsidering the legal relationship between physicians and hospitals.
The Case for a New Compassionate Release Statutory Provision
Authors: Iftene Adelina
Published: January 2019

In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present a low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not really exist in Canada. Section 121 of the Corrections and Conditional Release Act — parole by exception — is the closest Canada has to release on humanitarian grounds, but it fails to fulfill this role. The second purpose is to argue that the lack of a functional compassionate release provision is unacceptable, particularly in the context of the increase among the prison population of medical conditions associated with aging. I maintain that a system which is not flexible enough to consider extreme post-incarceration circumstances of an offender, and does not allow for a modification of the place where individuals serve their sentence based on these circumstances, is disconnected from any medical, penological, humanitarian, or constitutional requirements. Finally, I provide a set of recommendations for the redrafting of section 121.
Modernizing Judicial Review of the Exercise of Prerogative Powers in Canada
Authors: Klinck Jennifer A.
Published: January 2019

Despite judicial pronouncements that the source of government power, whether statutory or prerogative, should not affect judicial review, Canadian courts respond much more tentatively when asked to review exercises of prerogative powers than exercises of statutory powers. Courts (1) define prerogative powers in a way that makes it difficult to precisely articulate their existence and scope; (2) frequently avoid judicially reviewing exercises of prerogative powers by applying peculiar justiciability tests; and (3) when they do engage in judicial review, generally limit themselves to a conservative form of procedural review. This article proposes that courts reform judicial review of the exercise of prerogative powers by (1) adopting a principled approach to defining prerogative powers that starts with distinguishing the Crown’s prerogative powers from its natural person powers; (2) abandoning peculiar interest-based and subject matter justiciability tests in favour of a test that turns on the nature of the question, and maintaining a subject matter justiciability test only for exercises of prerogative powers that are integral to the democratic process; and (3) applying standard principles of administrative law to judicial review of the existence, scope, and exercise of prerogative powers.
Trinity Western University Law: The Boundary and Ethos of the Legal Community
Authors: Major Blair A.
Published: January 2019

The 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.
Finding Ourselves in a Predicament: Now What Do I Do?
Authors: Thompson Terrie Lynn
Published: January 2019

Situations unfold around us every day in our professional and personal lives. We make decisions and move on, often acting out of routine or instinct. But sometimes we encounter an overwhelming sense of not knowing what to say or do and yet having to act. We are in a predicament. In this phenomenological inquiry, I explore the lived experience of a predicament, an experience that resonates with being stopped in our tracks, the illusion of using logic, indecision while in-decision, and drawing on knowledge of the moment. Experiential data in this study is integrated with Heidegger’s notions of Befindlichkeit and Dasein, Ricoeur’s writings on choice, and Gadamer’s ideas about moral knowledge. Insights suggest that a predicament can provide a window for discovering something about whom and how we are. A predicament may be a self-conscious way of learning: a way of bringing ourselves to ourselves.