ABLawg - - Page 194

By: John-Paul Boyd

PDF Version: Polyamorous Families in Canada: Early Results of New Research from CRILF

Report Commented On: Canadian Research Institute for Law and the Family, Perceptions of Polyamorous Relationships: Preliminary Data

On 20 June 2016, the Canadian Research Institute for Law and the Family began a study on Canadian perceptions of polyamory, advertised with the assistance of the Canadian Polyamory Advocacy Association, gathering preliminary data with a public survey. The information gathered thus far, from the 547 people who answered our survey, paints a nuanced picture of polyamorous individuals and their family arrangements.

The polyamorous families we are looking at are those created by three or more freely consenting adults, in distinction to faith-based, and often patriarchal, forms of polygamy that exist in much of Africa, the Middle East and North America, the latter of which have been popularized in shows like Big Love and Sister Wives. The polyamorous population we are studying places a high value on equality and honesty, and the rights of individuals to leave a relationship when and how they wish.

Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

By Joshua Sealy-Harrington

On August 23, 2016

In Administrative Law, Constitutional, Legal Education

By: Joshua Sealy-Harrington and Marita Zouravlioff

PDF Version: Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)

Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights.

When the Burden of Proving Institutional Bias Rests on a Prisoner

By Amy Matychuk

On August 19, 2016

In Constitutional, Criminal

By: Amy Matychuk

PDF Version: When the Burden of Proving Institutional Bias Rests on a Prisoner

Case Commented On: Canada v Ewert, 2016 FCA 203 (CanLII)

Prisons use psychological tests to determine if inmates are likely to reoffend, but are the tests accurate for Aboriginal inmates? In a recent Federal Court of Appeal case, the court found that there was not enough evidence to prove the tests are biased. However, the analysis overlooked a few important factors.

In Canada v. Ewert, 2016 FCA 203 (CanLII) (Ewert FCA), Justice Dawson overruled a Federal Court decision that Correctional Service Canada’s (CSC’s) tests are unreliable when used to assess Aboriginal inmates. She held that Mr. Ewert, a 53-year-old Métis offender serving two life sentences in federal prison, did not provide enough evidence that the tests generate “false results and conclusions” due to cultural bias against Aboriginal people (at para 34). Mr. Ewert argued that these psychological tests do not take Aboriginal cultural differences into account. He alleged that his test scores affected “[his] eligibility for parole, his security classification and his ability to be granted escorted temporary absences” (at para 7). Because the tests generate inaccurate results for Aboriginal inmates, he said, relying on his scores to restrict his freedom was a violation of his rights. Justice Phelan of the Federal Court agreed, finding a section 7 Charter breach and a breach of the Corrections and Conditional Release Act, SC 1992, c 20 (see 2015 FC 1093 (CanLII) (Ewert FC)). However, the Federal Court of Appeal overturned that decision, and ruled that Mr. Ewert had not established on a balance of probabilities that the tests were unreliable.

Justice Dawson’s main reason for overturning the Federal Court ruling was that Justice Phelan failed to require that Mr. Ewert meet the necessary burden of proof (at para 15), which was to establish his claims on a balance of probabilities (at para 19).

Terrorism and Entrapment in the Era of Increased Scrutiny of Police

By Elliot Holzman

On August 18, 2016

In Criminal, Terrorism and Security

By: Elliot Holzman

PDF Version: Terrorism and Entrapment in the Era of Increased Scrutiny of Police

Case Commented On: R v Nuttall, 2016 BCSC 1404 (CanLII)

On July 1, 2013, John Nuttall and Amanda Korody placed three pressure cooker bombs in the bushes next to the British Columbia Parliament Buildings (“the Legislature”) in Victoria, B.C. The contents of the explosive devices included nuts, bolts, nails, washers and other materials intended to kill or maim people. Luckily, the bombs never detonated. It became public knowledge immediately after the incident that the devices were inert and were manipulated by the RCMP before Nuttall and Korody got their hands on them. The RCMP clarified that while the threat was real the public was never at risk as the threat was detected early and disrupted.

The initial reports indicated that Nuttall and Korody were a couple living in Surrey in the Lower Mainland and were converts to Islam who were self-radicalized. Over the following weeks, more details began to emerge about an elaborate RCMP and CSIS led investigation – Project Souvenir – that had been involved with Nuttall and Korody in the months, weeks, days, and hours leading up to the bombs being planted.

On June 2, 2015, Nuttall and Korody were convicted by a jury of a number of terrorism offences, but their convictions were not entered as they immediately applied for a stay of proceedings based on the conduct of the RCMP during its undercover investigation. This is known as entrapment. As I will describe below, entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud.

Sexual Harassment at the University of Calgary Food Court

By Linda McKay-Panos

On August 15, 2016

In Human Rights

By: Linda McKay-Panos

PDF Version: Sexual Harassment at the University of Calgary Food Court

Case Commented On: Pham v Vu’s Enterprises Ltd, 2016 AHRC 12 (CanLII)

On some occasions, there is an Alberta Human Rights Tribunal (AHRT) case where the respondent may have been far better off settling the complaint in private, instead of steadfastly denying discrimination occurred, or refusing to settle even after an investigation, thereby experiencing what should be embarrassing publicity inherent in a reported AHRT decision against them. This may be one of those cases. The Director of the Alberta Human Rights Commission (AHRC) had carriage of the complaint before the AHRT (at para 6), which indicates that the AHRC had previously determined that the complaint had merit and that the parties were unable to settle or unwilling to accept the terms of a proposed settlement.