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61872.05bThis paper presents an in-depth overview of the Alberta Land and Stewardship Act before discussing its impact on rural property. The author concludes by cautioning that these legal provisions could change what it will mean to own land, conduct business, invest, and carry on a business in Alberta. This paper was presented at the 2013 Rural Property Issues program.
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61860.04After a brief review of the nature and scope of Aboriginal interests, this paper addresses the current state of the law in this area. Specifically, the author investigates the source of the duty to consult, when the duty is triggered, who owes the duty, the nature and content of the duty, who is to be consulted, what it means to accommodate Aboriginal interests, and finally, some practical considerations. This paper was presented at the Aboriginal Issues seminar in November - December 2012.
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61849.04bThis paper examines section 12 of the Charter and its three conflicting elements: first, the long-standing judicial approach requires courts to assess both the actual impact of a sentence on a person before the court, and the potential for that same sentence to impose cruel and unusual punishment on an offender; second, the Conservative government’s policies have enacted minimum mandatory sentences for a wide variety of offenses; and third, a recent decision of the Supreme Court extinguishing the possibility of using the controversial constitutional exemption remedy as a “safety valve” for legislation of this type. The author outlines the nature of the conflict that has emerged and provides analysis of the various approaches that are developing, before concluding with suggestions for mediation for defence counsel. This paper was presented at the Constitutional Law Symposium in September 2012.
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61849.04aThis 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.
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61849.03Consultation 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.
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61849.02cThis 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.
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61849.02bThis 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.
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61849.02aThis 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.
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61849.01cThis 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.
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61849.01bUsing 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.
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61849.01aThis 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.
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61854.04This paper begins with a brief overview of the social media websites that employment lawyers should have a working knowledge of, and explores the nature of potentially relevant evidence found on these websites. The author outlines of how social media evidence can be preserved before and throughout the litigation process by providing an overview of spoliation and preservation orders. The paper concludes with a discussion of how lawyers must ‘click with caution’ when gathering social media evidence due to privacy and ethical issues. The admissibility of social media evidence obtained through improper means is also discussed. This paper was presented at the Employment Law Update program held in October and November of 2012.
