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Fisheries Act Review Should Be Evidence-Based

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On September 26, 2016

In Environmental, Fisheries Regulation, Protection of Species

By: Martin Olszynski

PDF Version: Fisheries Act Review Should Be Evidence-Based

Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.

Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful.

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International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

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On September 20, 2016

In Conflict of Laws, International Law

By: Rudiger Tscherning

PDF Version: International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

Case Commented On: Balev v Baggott, 2016 ONCA 680 (CanLII)

Introduction

The issues arising from international family disputes involving the non-consensual relocation of children abroad is perhaps one of the more difficult areas of private international law, in that the mechanical aspects of the conflict of laws (as set out in the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501) interact with the more personal aspects of international family life.

This post will examine the issue of international child abduction under the Hague Convention regime from the perspective of ‘time-limited consent’, namely whether the ‘habitual residence’ of a child can unilaterally be changed during a time-limited consent period when one parent wrongfully removes or retains a child in another contracting state.

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Does Judicial Review Apply to Decisions Made by Religious Groups?

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On September 15, 2016

In Administrative Law

By: Shaun Fluker

PDF Version: Does Judicial Review Apply to Decisions Made by Religious Groups?

Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)

September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis, [1959] SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point.

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Myths, Stereotypes, and Credibility in Sexual Offence Trials

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On September 13, 2016

In Criminal

By: Drew Yewchuk

PDF Version: Myths, Stereotypes, and Credibility in Sexual Offence Trials

Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)

R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written.

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Taking Proportionality Seriously in Charter Adjudication: R v KRJ

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On September 9, 2016

In Constitutional, Supreme Court of Canada

By: Stephen Armstrong

PDF Version: Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)

Introduction

The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.

In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.

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