Areas of Law
Areas of Law
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  • 61849.04a
    This paper considers the sexual assault decision of the Supreme Court of Canada, R. v J.A., to assess whether it continues to reflect the same commitment to understanding sexual assault as a practice of sex inequality. This paper argues that two forces threaten to undermine this understanding: first, the elision of women’s equality with individual autonomy and the concomitant impoverishment of the concept of autonomy into “choice” and, second, the disappearance of gendered violence through its normalization. This paper was presented at the Constitutional Law Symposium in September 2012.
  • 61849.03
    Consultation Update: Emerging & Persistent Issues Using Haida Nation v British Columbia’s vision of the duty to consult as existing along-side the negotiation process (aiming at a more fulsome settlement of aboriginal rights claims), this paper first provides an overview of the duty to consult and the state of the law. The author then considers the particular issues of the role of tribunals, agencies, and the identification of parties to a consultation. In conclusion, the author discusses the theme of reconciliation that continues to evolve around the duty to consult. Section 35(1) of the Constitution Act, 1982, the Duty to Consult, and the Government of Alberta’s First Nations Consultation Policy This paper argues that Alberta’s approach to First Nation consultation falls short of fulfilling the province’s constitutional obligation in this regard, but the development and management of public lands and resources appears to operate smoothly and efficiently, without any serious legal challenges or significant delays in this process. After a thorough summary of the current state of Canadian law regarding consultation and accommodation as well as Alberta’s policy and procedures, this paper evaluates Alberta’s policy and practices in light of the state of the law, the current operation of land and resource dispositions, and regulatory processes. Finally, this paper addresses the question of whether the conceptual failings of Alberta’s approach regarding consultation and accommodation should be a matter of serious concern given the absence of significant practical problems in the regulatory system. These papers were presented at the Constitutional Law Symposium in September 2012.  
  • 61849.02c
    This paper examines the Supreme Court of Canada’s decision in Reference Re Securities Act that the draft legislation, proposing a single federal regulator, was unconstitutional. After briefly outlining the reasons behind the Supreme Court’s ruling followed by an overview of the draft legislation and the Court’s methodology for testing the validity of federal power, this paper concludes by explaining the Court’s rationale for deciding against the draft and proposing three immediate lessons from this particular case. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • 61849.02b
    This paper grounds its argument in the new requirement born from Reference re Assisted Human Reproduction Act, which regulates Parliament’s power to enact criminal law with respect to health matters. The author argues that this new requirement provides a useful demarcation between federal and provincial interests in health, and, at a minimum, marks a move towards finding a principled solution to federalism disputes over health regulation. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • 61849.02a
    This paper proposes that the decision of the Supreme Court of Canada in Canada (Attorney General) v PHS Community Services Society to base its decision on section 7 of the Charter rather than on federalism arguments in the case was the incorrect tactic for reaching the end result. After explaining how the section 7 reasoning was problematic and did not engage fully in the federalism analysis involved in the case, the author concludes his position with a practitioner-focused objective by offering suggestions for constitutional law argumentation and advocacy after the PHS decision. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • 61849.01c
    This paper examines related trends regarding approaches to equality rights and their successes in the claims of vulnerable individuals and groups seeking to redress the harms of government action or inaction in the case law on sections 7 and 15 of the Charter. After a thorough analysis of these sections in various case studies, this paper concludes with a comparison between sections 7 and 15, cautioning Canadian courts to give the harms of discrimination equal respect and recognition under section 15 of the Charter. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • 61849.01b
    Using Pridgen v University of Calgary to ground its analysis, this paper seeks to address the following question: “What is the appropriate approach when a judge is presented with a Charter issue?” In dialogue with this question, this paper provides a brief outline of the decisions in Pridgen, describes both the American debate over judicial minimalism and the more limited Canadian scholarship, and concludes by evaluating the methodologies of the judges in Pridgen and the role of judicial minimalism in Canadian judicial decision-making. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • 61849.01a
    This paper provides a brief canvass of the history and rationale for the theory of stare decisis, distinguishes its variants of precedent (horizontal and vertical), and highlights the role precedent played in Canada v Bedford and Carter v Canada, among other recent cases. The author concludes with some observations of the factors which appear to drive courts to overturn previously settled jurisprudence. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • 61853.04
    This paper provides an update on law office searches, focusing on the legal requirements necessary to conduct searches of law office paper files and electronically stored information. The author reviews the guidelines established by the Supreme Court of Canada in R v Lavallee, Rackel & Heinz et al. and analyzes how the Lavallee guidelines apply to law office searches. This paper was presented at the Privacy & Litigation program held in October of 2012.  
  • 61847.04d
    This paper analyzes sections 9 and 12 of the Charter in the context of impaired driving law. The author provides a detailed discussion on arbitrary detention under the Charter and includes case law on traffic regulation vehicle stops, police power to affect a traffic stop, random vehicle stops and vehicle stops to investigate other offences. This paper was presented at the Impaired Driving – The Changing Landscape seminar held in September 2012. This document is an electronic product in Adobe PDF format. Shortly after your purchase, you will receive an e-mail with instructions on how to download the complete PDF. Click here to view some sample pages.
  • 61847.04b
    This paper discusses the recent co-mingling of the common law rule of voluntariness with section 7 of the Charter by the Supreme Court of Canada. The author analyzes the impact of the “Interrogation Trilogy”, R v Oickle, R v Singh and R v Sinclair, on impaired driving law. Decisions relating specifically to impaired driving, including R v White and R v Flores, are also examined in detail. This paper was presented at the Impaired Driving – The Changing Landscape seminar held in September 2012. This document is an electronic product in Adobe PDF format. Shortly after your purchase, you will receive an e-mail with instructions on how to download the complete PDF. Click here to view some sample pages.
  • 61847.04a
    This paper analyzes decisions from the Alberta Court of Queen’s Bench and the Court of Appeal regarding the right to counsel. Issues discussed include the right to counsel when a traffic stop evolves into a criminal investigation, the comprehension of section 10(b) and wavier by the accused and police interference. This paper was presented at the Impaired Driving – The Changing Landscape seminar held in September 2012. This document is an electronic product in Adobe PDF format. Shortly after your purchase, you will receive an e-mail with instructions on how to download the complete PDF. Click here to view some sample pages.