ABLawg

ABlawg is pleased to provide this compilation of highlights from 2016, consisting of some statistics and synthesis of our bloggers’ contributions in substantive areas of law this past year.

The Numbers

ABlawg has published one hundred and fifty (150) posts so far in 2016, with more to come before we take our annual holiday hiatus. The post that generated the most hits this year was Nigel Bankes’ The Termination of Power Purchase Arrangements in Alberta: What is the Legal Position and What are the Implications of Termination?, with 6071 views overall, showing the appetite for informed public policy discussions in Alberta. The runners-up were three posts on the Ghomeshi trial: Joshua Sealy-Harrington’s Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform, with 5178 views overall, Jennifer Koshan’s Reflections on Week One of the Ghomeshi Trial, with 3798 views overall, and Alice Woolley’s What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections, with 2827 views overall. “Mastery or Misogyny” also established a new record for daily hits to ABlawg, with 2989 views of our site the day it was posted.

The post that spurred the most comments in 2016 was Martin Olszynski’s Northern Gateway: Federal Court of Appeal Applies Wrong CEAA Provisions and Unwittingly Affirms Regressiveness of 2012 Budget Bills. This post led to an intense debate on the proper interpretation of the Canadian Environmental Assessment Act, 2012, with Martin’s position being recently adopted by both the appellant and respondent before the Supreme Court of Canada, as discussed in his most recent comment on that post.

Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

By Kiran Fatima

On December 15, 2016

In Constitutional, Criminal, Terrorism and Security

By: Kiran Fatima, Meagan Potier, Jordan Szoo and Stephen Armstrong

PDF Version: Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Provision Commented On: Section 83.221 of the Criminal Code, RSC 1985, c C-46

Bill C-51, the Anti-terrorism Act, 2015, sailed through Parliament and received Royal Assent on the 18th of June, 2015, amidst much political debate. One of the more controversial provisions was a new advocating terrorism offence contained in what is now s 83.221 of the Criminal Code, RSC 1985, c C-46. The provision criminalizes knowingly advocating the commission of terrorism offences in general and being reckless as to whether such offences are actually carried out. This post will address the political dynamics and constitutional issues with respect to the new advocating offence and make suggestions for how the Government of Canada should move forward.

Interestingly, our group was divided on the best approach to addressing the issues with respect to the provision. Meagan and Jordan were in favour of repeal, whereas Stephen and Kiran favoured amending the provision. We present the case for both repeal and amendment below and leave it to the reader to reach their own conclusions.

Reviewing Canada’s National Security Framework

By Michael Nesbitt

On December 15, 2016

In Constitutional, Criminal, Terrorism and Security

By: Michael Nesbitt

PDF Version: Reviewing Canada’s National Security Framework

This term, the University of Calgary, Faculty of Law offered for the first time a new Criminal Law & Policy Lab: Terrorism Law & Reform. The idea behind the course was, in part, to follow along with the Government of Canada’s “National Security Framework” public consultations and consider the legal, political and social issues that arose in real-time. (For more background on the Government’s public consultations and its relationship to the course, see my earlier ABlawg post).

Students were split into three groups and asked to negotiate, amongst themselves, three different areas that they thought were of the most importance to Canada’s national security framework review. Put another way, the students chose the three topics that they agreed were most ripe for review and consideration by the government. (For an overview of the course and its broader purpose, see here).

By the end of term, students were asked to produce ABlawg posts on their findings and recommendations on these three topics. The students also submitted research memoranda to the government as part of its public consultations. Today, we release the first of these three posts, Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code.

Freedom of Expression Versus Privacy Rights: Stay of Enforcement of an Interim Mandatory Injunction in the Context of Publication Bans

By Hasna Shireen

On December 14, 2016

In Privacy, Youth and the Law

By: Hasna Shireen

PDF Version: Freedom of Expression Versus Privacy Rights: Stay of Enforcement of an Interim Mandatory Injunction in the Context of Publication Bans

Case Commented On: R v Canadian Broadcasting Corporation, 2016 ABCA 372 (CanLII)

In two previous ABlawg posts (see here and here), I commented on the decisions in R v Canadian Broadcasting Corporation, 2016 ABQB 204, overturned 2016 ABCA 326 (CanLII), in which Alberta courts dealt with the issue of whether the Canadian Broadcasting Corporation (CBC) should be able to retain identifying information about a youthful homicide victim on its website. A majority of the Court of Appeal granted the Crown’s application for a mandatory injunction banning the continued publication of this material. In a follow-up decision, Mr. Justice Berger granted a Stay of Enforcement of the majority judgment pending an application for leave to appeal to the Supreme Court of Canada (see R v Canadian Broadcasting Corporation, 2016 ABCA 372 (CanLII) at para 14).

Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

By Alice Woolley

On December 9, 2016

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

Matter Commented On: Canadian Judicial Council Inquiry Committee Report Regarding Justice Robin Camp

What role should empathy have in a system of laws? What does an empathetic legal system look like? In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more people are prepared to stand defiantly and unapologetically in favour of discrimination, sexism, and racism. I worry that we dismiss the possibility of education and move to punish those who are genuinely remorseful (“For Judge ‘knees together’ Camp: Education is Power”, Globe and Mail, December 1, 2016).

I am not entirely sure what Professor Cossman meant, but I think that her point is that the absence of empathy in those who seek to remove Justice Camp encourages by example the absence of empathy in those who “stand…in favour of discrimination, sexism, and racism”. Our own insufficient empathy creates and empowers the post-empathy culture, which in turn creates the very sexism and discrimination that we seek to prevent.

ABlawg’s Year in Review, 2016

Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Reviewing Canada’s National Security Framework

Freedom of Expression Versus Privacy Rights: Stay of Enforcement of an Interim Mandatory Injunction in the Context of Publication Bans

Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?