Appeal: Review of Current Law and Law Reform

University of Victoria Law
Publication date:

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  • Preface
  • 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 court decisions, this article finds that Mitchell was operationalized in four of the cases to exclude Indigenous oral history evidence. In its application by trial courts, this article argues that Mitchell does not create opportunities for Indigenous challenges to colonial spatial relationships.

  • 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 sentencing and child protection cases, this paper explores a proposed restructuring of the child protection system focusing on the potential of implementing Gladue-like reports. The paper finds that this restructuring would have lasting and positive impacts on Indigenous children, their families, and communities. It identifies avenues for legal reform that would mandate Gladue-like reports in child protection.

  • 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 are excluded at each of the three stages of the juror selection process. It critiques the Supreme Court of Canada’s ruling on the issue in the 2015 case of R v Kokopenace and concludes with several recommendations including that citizens be allowed to volunteer for jury duty in order to remedy the race-based disparity in representation on juries.

  • 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 wells in other jurisdictions, and shortcomings of British Columbia’s current regulatory framework. It considers the intersection of bankruptcy law and orphan well remediation recently addressed by the Supreme Court of Canada in Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5, and makes the argument for upfront environmental bonds despite the strong environmental stance taken in that decision.

  • 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 civilly liable if students die by suicide, on- or off-campus. In an effort to address this lag, this paper examines the potential consequences of expanding the duty of care owed by universities to their students in tort law. This paper briefly maps the current legal terrain, both in terms of general duties of care that universities owe their students and jurisprudence related to suicide prevention, for example, in the contexts of jails and hospitals. The paper turns to American jurisprudence that has recognized a duty of care for universities to prevent student suicides and considers the potential costs and benefits, for universities and students alike, of adopting such a standard in Canada to create a new and expanded duty.

  • 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 will apply to relocate for reasons that include seeking out emotional support from extended family and new partners, better financial opportunities, and housing affordability and availability. This article charts and analyzes British Columbia court decisions made under the Division 6 Relocation provisions of the Family Law Act. In Division 6, legislators have directed courts to consider the effects of a proposed relocation on a child’s quality of life and that of the guardian who proposed relocation. This article examines how courts have engaged with the many gendered aspects of quality of life following separation. It finds that courts’ recognition of family violence’s repercussions is uneven and recommends the explicit inclusion of family violence in the Division 6 quality of life provision. It identifies the following as areas for further judicial education: first, family violence and its connections to courts’ assessment of female applicants’ credibility and to barriers to accessing housing and, second, potential biases in assessments of new female versus new male partners of applicant parents in heterosexual relationships.

  • 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 sites and lands: the section 35 title option, the section 35 rights option, and the section 2(a) Charter option. This paper suggests that the legal frameworks associated with each option perpetuate colonial values, whether it is the dispossession of land, the belief that land is only a commodity, or the superiority of Christianity over Indigenous spiritualities. By constructing legal frameworks that make the preservation of sacred sites and lands so difficult, Indigenous spiritualities are only further oppressed by the Canadian state.

  • 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 jurisprudence. This paper asks to what extent the thin skull principle in tort embraces a plaintiff’s religiously motivated decision to refuse medical treatment following injury. Ultimately, it is more likely than not that the religious thin skull will be supported by Canadian courts. This is necessary due to Canada’s commitment to Charter values and the realities of living in a multicultural society that values both freedom of religion and equality under the law. However, while it is likely that religious refusal of medical treatment will be treated as a religious thin skull rather than a failure of the duty to mitigate, this would likely be limited to cases where the refusal falls within foreseeable religious requirements that would necessarily exist within a multicultural society.

  • 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). Through an analysis of decisions made by the two review boards in 2015 and 2016, this article concludes that neither review board is consistently giving effect to this provision. It then considers whether there is a need to provide distinct treatment to young people in this context, concluding that there are compelling reasons for giving special consideration to young people found NCRMD, but also that the requirements of section 141(6), even if given their full effect, are insufficient to account for the unique circumstances of this population.

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