Category: Uncategorized Page 5 of 10

By: Lisa Silver

PDF Version: A Lesson in First Year Criminal Law Principles: How The Supreme Court of Canada “Modifies” Objective Mens Rea Offences in R v Javanmardi

Case Commented On: R v Javanmardi, 2019 SCC 54 (CanLII)

As I come to the close of the first half of teaching 1Ls criminal law principles, I review the course syllabus for the second half of the course to revise, delete, and add relevant case readings. Next term, I will discuss those crimes, which require the objective form of liability or objective mens rea. Although this area was once rife with disagreement and fractured alliances at the Supreme Court of Canada level, at the time of formulating last year’s syllabus, objective mens rea offences, such as unlawful act manslaughter and criminal negligence causing death, were well-defined both in terms of actus reus (prohibited act) and mens rea (fault element). However, the law can and does change; either through clarification or modification of accepted legal rules and principles or through the creation of completely new ones. In R v Javanmardi, 2019 SCC 54, the most recent Supreme Court of Canada decision on objective mens rea offences, it appears the Court has done more than clarify and modify what was a settled area of law but has, arguably, radically re-defined the legal tests and principles forobjective mens rea offences in the Criminal Code. This article will attempt to deconstruct the majority decision, authored by Justice Rosalie Abella, in an effort to understand the significance of this decision and the future impact it will have to this area of law.

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By: Kristin McDonald

PDF Version: The Appointment of Supreme Court Justice Nicholas Kaiser

Event Commented On: Nomination of the Honourable Nicholas Kasirer for Appointment to the Supreme Court of Canada

In April of this year, after just 5 years of service, Justice Gascon unexpectedly announced that he will be stepping down from the Supreme Court of Canada (SCC) this September. Justice Gascon was nominated to the SCC by Prime Minister Stephen Harper and appointed on June 9, 2014. Justice Gascon’s announcement and subsequent public struggle with mental health early this spring was met with a mixture of support for the Justice and controversy over the perception and treatment of people with mental illness in Canadian society. Particularly, the treatment of Justice Gascon, given his health issues, has spurred speculation regarding whether his decision to step down was of his own initiative or forced upon him (see news reports from the CBC, The Globe and Mail, and The National Post, and SLAW). More information on the Honorable Justice Gascon can be found here.

Justice Gascon’s announcement presented Prime Minister Justin Trudeau with the opportunity to make his third Supreme Court nomination of his tenure as Prime Minister.

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By: Jeffrey N. Westman

PDF Version: Bill C-77 and the Quiet Revolution in Military Justice

Statute Commented On: Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15

The Governor General might be forgiven for having a touch of writer’s cramp at dinner time on June 21, 2019. In the Upper Chamber that day, Her Excellency gave Royal Assent to 20 bills. Bills C-48 and C-69 got plenty of media attention, but Bill C-77 seemed to pass without much fanfare despite its significance for the future of military justice in Canada.

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By: Admin

PDF Version: Judging Former Colleagues: A Collection of Justice Woolley’s ABlawg Posts

Our former colleague Alice Woolley is being formally sworn in as a Justice of the Alberta Court of Queen’s Bench today. We take this opportunity to highlight Justice Woolley’s contributions to ABlawg over the ten years that she was a contributor, while we still called her “Alice”.

Alice wrote a clean 100 posts for ABlawg between December 2007 and July 2018. Actually, while the number may be clean, the titles were as colourful as Alice’s language, as we noted in our first brief farewell to her in ABlawg’s 2018 year in review post, including Regulating Lawyer-Client Sex, Law Schools’ Dirty Little Secret, and Defending Rapists, to name a few. This is a good time to mention that we are not really judging her, either for leaving us and becoming a judge, or for her posts themselves. We were simply trying to come up with a Woolley-esque title.

Many of Alice’s posts had over 2000 hits on ABlawg – she had a very impressive number of readers. Her most viewed posts were: When Judicial Decisions Go from Wrong to Wrongful – How Should the Legal System Respond? (over 5300 hits); What has Meads v Meads wrought? (cowritten with Jonnette Watson Hamilton, with over 3400 hits); and The Incarcerated Complainant: Submissions to the Minister of Justice (also with over 3400 hits). The Woolley posts that received the most comments were What has Meads v Meads wrought?; What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections; and Defending Rapists.

Alice’s large readership was no doubt sparked by the controversy of the topics she blogged on, as well as her clearly articulated positions on the issues they raised. In addition to the posts noted above on sexual assault, vexatious litigants, and legal education (see also her posts on Trinity Western Law School here, here, here, and here), she blogged on lawyers’ and judges’ ethics in a range of areas (see e.g. Top Ten Legal Ethics posts here, here, here and here), the regulation of the legal profession (see e.g. Ontario’s Law Society: Orwell’s Big Brother or Fuller’s Rex? and A National Code of Conduct?) and administrative law more generally (see e.g. her posts on the legacy of Dunsmuir here, here, here and here). And then there was the Volkswagen Scandal.

Alice also blogged in a regular column for Slaw, which ABlawg regularly cross-posted to reach an even broader range of readers (for Amy Salyzyn’s Slaw post on Alice’s contributions, see here).

We will greatly miss Alice’s ABlawg posts, especially at times like this when the issues of the day call for out analyses of questions like – in relation to Michael Cohen – Is a Bad Lawyer a Bad Person? and – in relation to Jody Wilson Raybould – whether Prosecutors [are] Ministers of Justice? (although Alice had a different spin on that issue). We are looking forward to blogging on Justice Woolley’s decisions, and wish her all the best on this special day.

To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca

Follow us on Twitter @ABlawg

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Right to Support for Adult Children with Disabilities

Case and Bill Commented On: Ryan v Pitchers, 2019 ABQB 19 (CanLII); Bill 28, the Family Statutes Amendment Act 2018

 As Laura Buckingham noted in an ABlawg post in December 2018, Alberta’s Bill 28, the Family Statutes Amendment Act 2018, made three key amendments:

• creating legislated rules for property division for separating common-law couples;
• closing a gap in child support legislation for adult children with disabilities; and
• repealing the Married Women’s Act, RSA 2000, c M-6.

The second of these amendments was recently considered in Ryan v Pitchers, 2019 ABQB 19 (CanLII). In this case, a mother brought a constitutional challenge to the pre-amendment version of the Family Law Act, SA 2003, c F-4.5 (FLA), which did not allow disabled children of unmarried parents to obtain child support once they turned 18 and were not attending school full-time. The mother’s argument was that the definition of child in the FLA violated the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms. The government did not defend the case given the pending legislative amendment in Bill 28, and although the father raised constitutional counter-arguments, the mother’s claim was successful.

Although the decision may seem like a foregone conclusion, the section 15 analysis of Madam Justice Carolyn Phillips has some interesting features that we will comment on in this post.

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