Author Archives: Admin

A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

By: Admin

PDF Version: A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

Case Commented On: R v Boisjoli, 2018 ABQB 410 (CanLII)

The decision of Justice Eldon J. Simpson in R v Boisjoli is unusual. On April 5, 2018, the Crown and the accused, Mr. Boisjoli, appeared before Justice Simpson to select jurors for a trial scheduled for the week of April 9. The charge (or one of the charges) was one of intimidation of a justice system participant, contrary to section 423.1 of the Criminal Code, RSC 1985, c C-46. However, no jury was selected on April 5. Instead, Justice Simpson, by his own motion and under the claimed authority of the court’s inherent jurisdiction, ordered that Mr. Boisjoli’s trial go ahead as a trial by judge alone. Justice Simpson’s order was made because of the anticipated behavior of Mr. Boisjoli, i.e. that he intended to “artificially frustrate the jury selection process” (at para 24) and “disrupt and sabotage” the jury trial (at para 37). There was only a brief mention of Mr. Boisjoli’s Charter right to a trial by jury, and no Charter analysis. Instead, Justice Simpson relied upon an analogy to a section in the Criminal Code that equated an accused’s non-appearance with a waiver of a jury trial.

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Proposed Security of Canada Information Sharing Act Amendments

By: Ben Allison, Lindsay Kvellestad, and Wajeeha Sattar

PDF Version: Proposed Security of Canada Information Sharing Act Amendments

Policy Commented On: Bill C-59, An Act Respecting National Security Matters

Executive Summary

On August 1st, 2015, the Security of Canada Information Sharing Act, SC 2015, c 20 (SCISA) came into force by Bill C-51, 2nd Sess, 41st Parl, 2015 (assented to 18 June 2015). SCISA gave Government of Canada Institutions the power to share information in their possession with listed receiving institutions. Bill C-59, An Act Respecting National Security, 1st Sess, 42nd Parl, 2017 (first reading 20 June 2017) is currently in Committee (SECU). Among a host of other national security changes, this Bill proposes to make amendments to SCISA, which will become the Security of Canada Information Disclosure Act (SCIDA), Bill C-59, s 114. Experts in the field of national security law in Canada have pointed to weaknesses that are not being addressed in the SCISA (see Craig Forcese and Kent Roach, A report card on the national security bill). The majority of the criticisms that are associated with Bill C-59 and SCISA/SCIDA in particular are the threshold for sharing information, the overbreadth of the exception, circularity, and a lack of review. This post does not intend to canvass the issues afresh. Rather, our focus is on novel problems with the SCISA and the proposed amendments in Bill C-59 that have largely gone unaddressed. Beyond the existing critiques, the proposed amendments in Bill C-59 still do not address significant problems. We discuss some of these problems in three parts. Part I argues that treating all types of information as the same, as the SCISA does, is problematic. Part II addresses concerns related to disclosing institutions and how they function with regard to information sharing. Similar areas of concern are mentioned in Part III relating to recipient institutions. Each part of this post includes not only critiques but also proposed solutions to the various problems surveyed. Continue reading →

Letter of Support

PDF Version: Letter of Support

Editor’s note

This letter of support is endorsed by concerned faculty members at the University of Calgary Faculty of Law.

Letter of Support

As professors at the University of Calgary Faculty of Law we are concerned regarding the recent incident that occurred in one of our classes. A sitting judge of the Alberta Court of Queen’s Bench and our then Judge in Residence, Justice Kristine Eidsvik, made comments to our second-year students that reflected racist myths and stereotypes about people, and particularly men, of colour.

Justice Eidsvik’s remarks are now being considered by the Canadian Judicial Council.  We appreciate that further facts may to come to light through that process, and that it will serve to identify the appropriate response to Justice Eidsvik’s comments in relation to ensuring public respect for the administration of justice. We also note that Justice Eidsvik has resigned her position as Judge in Residence.

Nonetheless, over the past week we have assessed how best to respond to Justice Eidsvik’s reported remarks, and have reflected on our responsibilities as professors in light of what occurred in one of our classrooms.

Based on that assessment and reflection, as faculty members we believe it is important to emphasize the following:

  • Racist attitudes, including explicit and implicit bias, are an ongoing problem in our legal system.
  • Every actor in the legal system has a responsibility to work positively to redress racism, and to improve the justice and fairness of the law and how it is applied.
  • Judges bear a particular responsibility to ensure that they make decisions free of bias and in accordance with the values and principles enshrined in the Canadian Charter of Rights and Freedoms, including the right to equality.
  • Legal educators are responsible to ensure that law school admissions and classrooms redress rather than reinforce inequality.
  • The judiciary, the legal profession and the legal academy ought to reflect and respect race, class and other forms of diversity.

We note Justice Eidsvik’s apology for her comments, but believe it essential to identify her initial remarks as categorically inconsistent with our core values, both institutionally and personally, as lawyers and legal educators. We express support for our students and colleagues who are personally impacted by the comments and thank those who came forward to express their concerns. We welcome dialogue with the students as we move forward.

As legal educators we are committed to ensuring that our classrooms reflect and reinforce equality as a core legal, constitutional and professional value. We are grateful for the steps taken by the two professors in this course, both of whom are new to the University of Calgary, to address this challenging situation swiftly and empathetically.

As concerned faculty members, we commit to taking our own steps to learn from this. We recommend that the Faculty include seminars on equality and bias in our annual teaching workshops, including strategies for dealing with racist and other comments reflective of inequality in the classroom.

Regardless of the outcome of the Canadian Judicial Council complaint, we encourage the Alberta Courts, along with the National Judicial Institute, to adopt educational initiatives to ensure that judges understand the problems of inequality and racialization in our legal system, and the central role of judges in redressing rather than reinforcing those inequalities.

This letter is written in support of our students and colleagues and we will not be speaking to the media about it.

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ABlawg Inducted into Clawbie Hall of Fame

ABlawg is thrilled to have been inducted into the Canadian Law Blog Award (Clawbie) Hall of Fame today. The awards committee noted that “The blog of the University of Calgary’s Faculty of Law has long set the standard for legal academic blogging in Canada”, which is welcome encouragement as we approach our 10-year anniversary in February 2018.

We also congratulate our colleague and contributor Lisa Silver, whose Ideablawg won the Clawbie in the Best Law School/Law Professor Blog Award category.

Congratulations to all the Clawbie winners and finalists, and thanks to our readers for your continued support and commentary.

ABlawg: Year in Review, 2017

By: ABlawg Writers

PDF Version: ABlawg: Year in Review, 2017

As we take stock of the year that was, ABlawg is pleased to provide our highlights from 2017, consisting of some statistics and a roundup of our bloggers’ contributions in substantive areas of law this past year.

The Numbers

ABlawg has published 156 posts so far in 2017. The post that generated the most hits this year was Alice Woolley’s The Incarcerated Complainant: Submissions to the Minister of Justice, with 2539 views overall (and see a second post on the same case here). Close behind were Jennifer Koshan’s post Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers with 2290 views, and Martin Olszynski’s post In the Growing Wave of Climate Litigation, Could the Automobile Industry be Next? with 2183 views. Overall, six ABlawg posts had more than 2000 views in 2017 (see also Drew Yewchuk, R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay, Jennifer Koshan, Sexual Assault, Starting Points, and Court of Appeal Panel Composition: A Chilling Effect on Individualized Sentencing? and Jonnette Watson Hamilton, When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?).  Continue reading →