Yearly Archives: 2015

R v Borowiec On Infanticide: Does the Crime Fit the Times?

By: Lisa Silver

PDF Version: R v Borowiec On Infanticide: Does the Crime Fit the Times?

Case Commented On: R v Borowiec, 2015 ABCA 232

In a few weeks the law school will be humming with activity as the newly admitted 1L students start learning the Law both in doctrine and in practice. One of the core first year courses is criminal law, which provides the future lawyer a realistic snapshot of the complexities of both areas. Here, in criminal law, they will not only gain knowledge of the prohibitions, rules, and procedures as found in the Criminal Code but also the interpretations and practices as found in Common Law. They will discover that criminal law is not about cut and dry legalese but is, at its core, about how we as a nation see ourselves and the kind of society we want to live in. It is also about ordinary people who are impacted by the decisions made by courts every day.

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Observations on the Fact/Opinion Distinction in Expert Opinion Evidence

By: Michael Nesbitt

PDF Version: Observations on the Fact/Opinion Distinction in Expert Opinion Evidence

Case Commented On: Dow Chemical Canada ULC v Nova Chemicals Corporation, 2015 ABQB 401 (CanLII)

This decision of the Court of Queen’s Bench concerns the admissibility of evidence given by a “lay witness” at trial and whether that evidence falls within an exception to the general rule that such a witness cannot give opinion evidence.

A central issue at trial was whether Nova failed to run at maximum capacity the ethylene production facility (E3) that it jointly owned with Dow. Nova’s defence was that there was a shortage of ethane – “the feedstock for E3” (at para 3) – which in turn meant that it could not run the E3 facility at full capacity.

Nova stated that it would call employees at E3 to offer testimony both about how E3 was operated and about the mechanical and operational constraints that may have limited the ability for E3 to run a full capacity. In other words, Nova wanted the employees to testify about the constraints they faced and why these would have prevented them from failing to run at maximum capacity. The dispute relevant to this comment arises out of the questioning of the first witness, a Mr. Ron Just, who was the optimizing engineer at E3 for much of the period at issue in the trial, and whether his testimony constituted fact evidence or inadmissible opinion evidence.

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Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious

By: Jonnette Watson Hamilton

PDF Version: Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious

Case Commented On: Sikora Estate (Re), 2015 ABQB 467 (CanLII)

This decision indirectly raises a question about the jurisdiction of Alberta’s Court of Queen’s Bench and Court of Appeal to declare that a person cannot start or continue court proceedings without first obtaining the court’s permission, i.e., to declare that a person is a vexatious litigant. Section 23.1 of the Judicature Act, RSA 2000, c J-2 grants the courts that authority, whether on their own motion or on an application by a party to the proceedings, if notice is given to the Minister of Justice and Solicitor General. But what if notice has not been given to the Minister of Justice and Solicitor General? Does the court have inherent jurisdiction to make such a declaration? If they do, how far does it extend? Can the court enjoin only further applications without its permission in the case before it, or can the court prohibit any and all future court actions in the province without its leave? This issue was explicitly raised, but not decided, by the Alberta Court of Appeal in Pawlus v Pope, 2004 ABCA 396 (CanLII), and the issue does not appear to have been resolved in the intervening ten years. The decision in Re Sikora Estate suggests it needs to be.

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The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

By: Seamus Ryder

PDF Version: The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

Matter Commented On: The Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

On 16 July, 2015, Ambassadorial-level representatives from all five Arctic Ocean coastal states – Canada, Denmark, Norway, Russia and the United States (the Arctic Five) – met in Oslo to sign the Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean (the Declaration). The Declaration follows up on the substantive outcome of the February 2014 Nuuk Meeting on Central Arctic Ocean Fisheries and builds upon discussions toward the development and implementation of interim measures to prevent unregulated fishing in the high seas portion of the central Arctic Ocean and related scientific matters. In this sense, the Declaration can be seen as the latest development in a so-called “Arctic Ocean coastal state process” on the regulation and management of Arctic Ocean fisheries. This blog post looks at the substantive output of this latest development and makes some initial observations regarding the contribution of the Declaration to the legal and policy framework for Arctic fisheries (background information and discussions on both the Nuuk meeting and the Arctic Ocean coastal state process on Arctic Ocean fisheries can be found in an earlier blog post). If nothing else, this post aims to clarify a number of apparent misconceptions and inaccuracies in media reports on the Declaration.

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Bill C-24: Strengthening Canadian Citizenship – Weakening Global Security

By: Hannah Buckley

PDF Version: Bill C-24: Strengthening Canadian Citizenship – Weakening Global Security

Statute Commented On: Strengthening Canadian Citizenship Act, SC 2014 c 22

On June 11, 2015 the final host of amendments created under the Strengthening Canadian Citizenship Act (Bill C-24) came into force. Among those were amendments to section 10 of the Citizenship Act, RSC 1985 c C-29 greatly expanding the government’s ability to revoke Canadian citizenship. The amendments apply to naturalized Canadians, dual citizens and Canadian-born citizens who are eligible to obtain dual citizenship. Prior to Bill C-24, only naturalized citizenship could be revoked, and revocation was limited to cases where citizenship was obtained by means of fraud or false pretenses (See Parliamentary Information and Research Service, Legislative Summary of Bill C-24: An Act to amend the Citizenship Act and to make consequential amendments to other Acts by Julie Béchard, Penny Becklumb, & Sandra Elgersma (Ottawa: Library of Parliament, 2014) available here). Now treason, terrorism, aiding the enemy, espionage, and communicating safeguarded or operational information have been added to the list of exile-worthy offences.

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