Represented Adults and Solicitor-Client Privilege

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Case considered: Wayne v Wayne, 2012 ABQB 763.

The Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (AGTA), applies to persons over the age of 18 who are unable to make personal or financial decisions for themselves, a person the statute calls a “represented adult.” There has not been much judicial consideration of the statute which came into force on October 30, 2009; there appears to be fewer than a dozen cases interpreting only a relatively small number of the statute’s provisions. That is one reason why Wayne v Wayne is of interest. Another reason is that the issue in Wayne v Wayne is intrinsically interesting, at least to the legal profession, because it is about the ability of a trustee appointed to manage the financial affairs of a represented adult to gain access to information otherwise protected by solicitor-client privilege from the file of a represented adult to whom a lawyer gave legal advice.

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The Legality of Legal Advising

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Matter considered: Edgar Schmidt v Canada (AG) Federal Court File #T-2225-12.

Introduction

On December 13, 2012 Edgar Schmidt, a Department of Justice lawyer, filed a Statement of Claim in Federal Court naming the federal Attorney General as Defendant. The Statement of Claim alleges that the Minister of Justice and the Deputy Minister of Justice have violated their obligations under various pieces of legislation that impose duties on the Minister of Justice to examine proposed legislation to determine if it is “inconsistent with the purposes and provisions” of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms, and to advise the House of Commons if it is so (see in particular: section 3 of the Canadian Bill of Rights, SC 1960, c 44; section 4.1 of the Department of Justice Act, RSC 1985 c J-2; section 3(2) and (3) of the Statutory Instruments Act, RSC 1985 c S-22).

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ABlawg News

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ABlawg is thrilled to have been awarded the Clawbie for Best Law School / Law Professor Blog for 2012. Thanks again to our indefatigable bloggers and enthusiastic readers, commenters, and nominators. ABlawg’s winning the Clawbie makes for an auspicious beginning to our 5th anniversary celebrations, which will kick off in February. The ABlawg dates back to November 2007, and went live in February 2008. Here are some exciting ABlawg celebratory events readers can look forward to in the coming weeks:

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Domestic Violence and Duress: In Search of a Contextual Approach

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Case commented on: R v Ryan, 2013 SCC 3.

 On Friday January 18, the Supreme Court released its decision in R v Ryan.  In a decision written by Justices LeBel and Cromwell, the Court held that Nicole Doucet (formerly Ryan) could not avail herself of the defence of duress in circumstances where she attempted to hire someone to kill her abusive husband.  This ruling followed Ms Doucet’s acquittal for counselling murder at trial, which was upheld by the Nova Scotia Court of Appeal. Although the Supreme Court paid some attention to Ms Doucet’s circumstances by ultimately staying the proceedings against her (with Fish, J dissenting on this point), its analysis of the defence of duress was sorely lacking in context.

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When does aggressive panhandling become robbery?

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Case commented on: R v Ajang, 2012 ABCA 364.

 This case addresses the relationship between members of society who are homeless or poor, and those who are uncomfortable and/or threatened by homeless or poor people, when they are asking for money. Mr. Ajang was charged with robbery under section 343(c) of the Criminal Code, RSC 1985 c C-46, which states that everyone commits robbery who assaults a person with intent to steal. The Trial Judge (Judge P.M. McIlhargey) found Ajang guilty of assault, but acquitted him of robbery. The Crown appealed this acquittal and the matter was heard by Justices Connie Hunt, Patricia Rowbotham and Brian O’Ferrall. The Court of Appeal overturned the acquittal and found that there was sufficient evidence of an intent to steal to support a conviction for robbery.

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