ABLawg

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.

The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

By Alice Woolley

On December 7, 2016

In Administrative Law, Ethics and the Legal Profession, Supreme Court of Canada

By: Alice Woolley

PDF Version: The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

Case Commented On: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII)

I can’t decide whether I am more excited that the Supreme Court issued a decision dealing with two legal issues of great interest to me – administrative law standard of review and statutory incursions into solicitor-client privilege – or irritated that the Court’s handling of both issues is so annoying. Because it is the end of term, and I’m as grumpy as any other professor at the end of term, I am mostly irritated. Irritated because on standard of review the Court seems literally incapable of a consistent and practical approach, while on solicitor-client privilege the Court has been so consistent that it risks fetishizing the significance of solicitor-client confidentiality to the point of jeopardizing other important legal interests.

On standard of review the Court needs to stop. It needs to stop trying to articulate and apply a set of rules for judicial deference to administrative decision-makers. It should instead let administrative judicial review be a matter of practice and the appropriate judicial attitude, one of respectful attention to any decision-maker’s reasons for a particular decision, while recognizing that judges provide a sober second thought through judicial review, particularly on matters of legal interpretation. Along with significantly shifting every decade or so, the rules identified end up being misleading at best and unhelpful at worst, failing to capture the basic and in the end relatively straightforward idea that standard of review reflects. The Court’s attempt to articulate rules governing standard of review is like a baseball coach trying to develop a set of rules for players to use when deciding whether to swing, when the appropriate advice is both simple and incapable of more precise articulation: swing at a strike; don’t swing at a ball (or, alternately, swing at a pitch you have the skill to hit, and leave the rest alone).

On solicitor-client privilege, the Supreme Court can certainly claim to have been consistent: solicitor-client privilege is generously defined and strenuously protected. On the whole, that seems to me a good thing. But this decision raises the possibility that that consistent and vigorous protection may go beyond what is necessary for protection of the privilege, and may occur at the expense of other values of importance to the legal system.