Appeal: Review of Current Law and Law Reform
- University of Victoria Law
- Publication date:
- Nbr. 26, January 2021
- Nbr. 25, January 2020
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- 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.
- 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 departments have historically justified these racial disparities by framing street checks as a proactive policing tool, but in recent years, the rhetoric around street checks has shifted. Now, street checks are a way for officers to check in on the "well-being" of marginalized community members. In Vancouver, the VPD has framed this practice as promoting a social good, but this article contends that well-being checks are another manifestation of arbitrary street checks. This article first examines how street checks and the discourse surrounding them have evolved in Toronto, leading to the current moment, where departments face mounting pressure to justify racial disparities in their data. Next, this article shifts its focus to the Downtown East Side (DTES) of Vancouver, where police are facing a similar public reckoning, and have responded with one specific, novel justification: street checks are justifiable as a proactive policing tool that protects the interests of society’s most vulnerable. This article concludes by arguing that well-being checks may function as a new manifestation of discriminatory policing, one that responds to a specific history and context but duplicates the experience of an arbitrary street check.
- 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 labour. This paper asks if Canada should seek to regulate after-hours communications between employers and employees by conducting an international analysis of approaches taken by other jurisdictions. Three potential methods of reform are examined, and a recommendation is made for Canada to implement a "right to disconnect." The right to disconnect means that employees cannot be penalized for ignoring communications received after-hours. The right to disconnect could be legislated through the Employment Standards Act and the Canada Labour Code to provide additional protections to employees.
- 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...
- 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...
- 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...
- The Stories We Tell: Site-C, Treaty 8, and the Duty to Consult and Accommodate
- 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
- Public Procurement and the Charbonneau Commission: Challenges in Preventing and Controlling Corruption
- Using Section 24(1) Charter Damages to Remedy Racial Discrimination in the Criminal Justice System
- Reasonableness as Proportionality: Towards a Better Constructive Interpretation of the Law on Searching Computers in Canada