University of Victoria Law (Books and Journals)
- Appeal: Review of Current Law and Law Reform From Nbr. 26, January 2021 to Nbr. 26, January 2021 University of Victoria Law, 2021
The Challenges of Indigenous Oral History Since Mitchell v Minister of National Revenue
This article answers two questions: How has the Supreme Court of Canada’s Mitchell v Minister of National Revenue decision been operationalized by trial-level courts? Based on these findings, does this decision make room for Aboriginal title and rights claimants to contest dominant understandings of Indigenous presence in the Canadian settler state? Examining the reasoning of six trial-level...
Expanding the Reach of Gladue: Exploring the Use of Gladue Reports in Child Protection
This paper explores the potential of the legislature or courts using Gladue-like reports in British Columbia's child protection laws and policies. It first lays out the current provincial legal frameworks and illustrates its shortcomings by comparing them with Indigenous legal orders; to argue that the Indigenous communities should control their child protection systems. Drawing parallels between
Seeing Justice Done: Increasing Indigenous Representation on Canadian Juries
The underrepresentation of Indigenous people on Canadian juries threatens public confidence in the criminal justice system, particularly in cases involving Indigenous accused or defendants. Despite being the subject of many high-profile legal cases, inquiries, and reports, the problem endures today, and meaningful reform has been elusive. This paper considers the ways in which Indigenous people...
Drilling to the Bottom of the Orphan Well Problem: Suggestions for a Better Regulatory Framework for Preventing and Remediating Orphaned Oil Wells in British Columbia
When an oil firm goes bankrupt, its non-productive oil wells are classified as "orphans" and must be plugged and remediated by provincial regulatory bodies. The number of orphan oil wells has increased significantly in the western oil-producing provinces in the past several years. This paper examines the scope of the orphan well problem in British Columbia, policy tools used to address orphan...
Student Suicide On-Campus: Tort Liability of Canadian Universities and Determining a Duty of Care
Suicide is a devastating issue that is increasingly affecting post-secondary students across Canadian university campuses. Despite growing awareness of this problem, research shows that mental health supports for post-secondary students in Canada remain insufficient and inaccessible. This paper argues that the law is also lagging behind. Currently, no legal recourse exists to find universities...
A Gendered Approach to 'Quality of Life' after Separation under the British Columbia Family Law Act Relocation Regime
As established in existing literature, the separation of spouses has gendered consequences. Women are likely to suffer more severely, financially, from the dissolution of a relationship and are more likely to experience family violence. Mothers in heterosexual relationships are more likely to have care of children after separation than are fathers. In the face of those challenges, many guardians...
A Rose by Any Other Name: Well-Being Checks, a New Manifestation of Discriminatory Policing?
Citizens and advocacy groups across Canada have called for an end to street checks, a practice that involves the police stopping and questioning people on the street, absent grounds for arrest or detention, to collect identifying information. Across jurisdictions, the data reveals that street checks disproportionately target Black, Indigenous, and other racialized and marginalized persons. Police
From Ringing to Impinging: The Intrusion of Technology into the Employment Relationship
Technology has fundamentally altered how individuals contact and connect with each other. This has troubling ramifications for the employment sector, as employees may receive electronic communications from their employer outside of their scheduled work hours. Employees may feel various professional or societal pressures to answer these communications, resulting in the employee engaging in unpaid...
Fundamental Rights for All: Toward Equality as a Principle of Fundamental Justice under Section 7 of the Charter
Section 7 of the Canadian Charter of Rights and Freedoms has led to some groundbreaking wins for Canadians. However, its life, liberty, and security of the person guarantees are not currently expansive enough to truly protect the interests of marginalized claimants. Furthermore, the equality protections guaranteed by section 15 of the Charter are often insufficient for marginalized claimants due...
Social Science Evidence in Poverty-Related Charter Claims: An Example in Bedford v Canada
Social science can be a useful tool for courts when deciding upon issues relating to poverty, as it can provide information about the societal realities of the matter in question. This paper explores the use of social science evidence in poverty law-related Charter claims, looking at the specific example of Bedford v Canada (Attorney General). Bedford was a Charter application that ultimately...
Indigenous Sacred Sites & Lands: Pursuing Preservation Through Colonial Constitutional Frameworks
Sacred sites and lands are vital to the spiritualities of many Indigenous peoples in Canada. However, colonial conceptions of land ownership, land use, and religion have worked in concert to stifle the preservation of Indigenous sacred sites and lands. This article examines three options, based in the Constitution Act, 1982, that Indigenous peoples in Canada may pursue to preserve their sacred...
The Price of God: Understanding Reason and Religion in the Duty to Mitigate
Tortfeasors have a responsibility to take their victim as they find them, and victims of tort have a duty to mitigate their damages. Nestled between these two legal principles is a situation where a victim of tort refuses medical treatment following injury on the basis of religious conviction. This paper addresses and predicts possible legal outcomes in this undetermined area of Canadian legal...
Misspent Youth: The (Mis)application of the Youth Criminal Justice Act by the Criminal Code Review Boards of British Columbia and Ontario
This article examines the treatment of young people, as defined in the Youth Criminal Justice Act (YCJA), by the Criminal Code review boards of British Columbia and Ontario. Section 141(6) of the YCJA requires provincial review boards to give special consideration in making disposition decisions applicable to young people found not criminally responsible on account of mental disorder (NCRMD)....
Indigenous Settlement Trusts: Recharacterizing the Nature of Taxation
This article examines how Indigenous Settlement Trusts (2Settlement Trusts"), established for the benefit of First Nations, are affected by the Income Tax Act ("Tax Act"). I argue that Settlement Trusts should be taxed differently than other personal trusts under the Tax Act. Currently, a Settlement Trust is taxed just as any other trust-as an individual pursuant to section 104(2) of the Tax Act-r
Promoting the Long-Term Management of Public Corporations Through a Reform of Canadian Corporate Law
Short-termism, a tendency to overemphasize strategies that generate immediate financial results at the expense of long-term profits, is a serious issue that the business community faces. Short-term market pressures and the responsive behaviour of corporate boards undermine long-term economic prosperity and social welfare. While select investors and executives may benefit financially from this...
The Human Right to Property in International Investment Law
This article seeks to address part of the "legitimacy crisis" currently underway in the international investment regime. It identifies shortcomings in the jurisprudential coherence of investor-state arbitral awards in expropriation cases where the state defends its actions by invoking human rights considerations. This article suggests the interpretation of the scope and characteristics of...
Expanding the Constitutional Right to State-Funded Legal Counsel to Address the British Columbia Housing Crisis
During the 2017 British Columbia provincial election campaign, the housing affordability crisis emerged as one of the top issues for voters. The housing crisis represents a much larger issue of affordability in British Columbia. The civil justice system is another realm in which the gap is widening between the "haves" and the "have nots" in the province. This paper focuses on the inadequate...
Historical Infringements of Aboriginal Rights: Sui Generis as a Tool to Ignore the Past
The sui generis conception of Aboriginal rights provides tremendous opportunity for those rights to be defined by Aboriginal perspectives. Unfortunately, recent decisions from the Supreme Court of Canada exemplify a prejudicial use of this concept. In Tsilhqot in, the Court seemed to suggest that the unique nature of Aboriginal title meant a declaration of title does not operate retroactively....
Smart Devices in Criminal Investigations: How Section 8 of the Canadian Charter of Rights and Freedoms Can Better Protect Privacy in the Search of Technology and Seizure of Information
Technology has changed our world, including how crimes are committed and how law enforcement investigate them. Many of our daily activities, criminal or otherwise, leave behind digital data. Vast amounts of specific and accurate information is collected through our intentional uses of technology and our inadvertent interactions with it. This paper examines how section 8 of the Charter is adapting
(You're) Having My Baby: Surrogacy Fees as a Cost of Future Care Award in Canadian Tort Law
In April 2017, the BC Supreme Court released its decision in Wilhelmson v Dumma. After a horrific motor vehicle collision in which she was critically injured, the plaintiff was left unable to bear children. Justice Sharma, in a precedent-setting decision, awarded the plaintiff $100,000 for future surrogacy fees under the head of cost of future care. With this award, Justice Sharma attempted to...
The Ship is Not the Only Vessel on the River: Revisiting First Nations' Mobility Rights under Article III of the 1794 Jay Treaty
In 1794, the Treaty of Amity, Commerce and Navigation ("Jay Treaty") was concluded between the United States of America and the British Crown. This treaty came on the heels of the British-American imposition of an international border, dividing the Haudenosaunee Confederacy in half without their consent. But while the Jay Treaty bears the signatures of only the two above-mentioned settler...
- A Review of Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession
- The Stories We Tell: Site-C, Treaty 8, and the Duty to Consult and Accommodate
- The Water Sustainability Act, Groundwater Regulation, and Indigenous Rights to Water: Missed Opportunities and Future Challenges
- A Minor Issue? The Shortcomings of the Eligibility Requirements for Medically Assisted Death in Canada
- No Matter How Small: Child Witnesses in Canadian Criminal Trials
- Cruel, Unusual, and Constitutionally Infirm: Mandatory Minimum Sentences in Canada