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The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

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Case considered: West Moberly First Nations v. British Columbia, 2011 BCCA 247

Summer at the law school provides faculty members with the opportunity to get on with some research and writing and, in particular, the larger projects that there isn’t the opportunity to tackle during the teaching terms. Law school is also a quieter place at this time with fewer LLB/ JD students around. But there is always a good number of summer students – some employed by Student Legal Assistance (SLA) for clinical duties and others employed by faculty members, the Alberta Law Reform Institute, the Alberta Civil Liberties Research Centre and Canadian Institute of Resources Law on various research projects. One of the other things that we try and do over the summer to enrich the research environment for summer students, graduate students and faculty members alike is to hold a number of roundtable discussions on recent important judicial decisions. Last year, for example, we had a discussion of Supreme Court of Canada freedom of expression decisions (R. v. National Post, 2010 SCC 16; Toronto Star v. Canada, 2010 SCC 21; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23) and a discussion of the Advisory Opinion of the International Court of Justice on Kosovo. Our first roundtable discussion this year focused on the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia, 2011 BCCA 247, a recent Treaty 8 consultation case which also deals with a SARA (Species at Risk Act, SC 2002, c 29) listed species (woodland caribou). The Attorney General of Alberta appeared as an intervenor on the appeal, undoubtedly because much of northern Alberta is covered by Treaty 8.

JSS Barristers and The New Rules of Court

ABlawg readers may have noticed that we have not posted any comments lately on the new Alberta Rules of Court, Alta. Reg. 124/2010. We have decided to leave that task to our colleagues at JSS Barristers, who released the first issue of its JSS Rules newsletter in April, 2011. You can subscribe to JSS Rules here. Sabri Shawa, who has taught Civil Procedure as a sessional instructor in the Faculty of Law since 2003, advises that JSS Rules will be released quarterly (first in paper and eventually, on-line only) and JSS Barristers will provide updates on new rules cases to subscribers between newsletters. ABlawg may still provide commentary on some new rules cases that intersect with other areas we are blogging, but in the meantime we are pleased to wish our colleagues at JSS Barristers success with their comprehensive new rules initiative.

Consciousness and Consent in Sexual Assault Cases

PDF version: Consciousness and Consent in Sexual Assault Cases

Case considered: R. v. J.A., 2011 SCC 28

Can a person consent in advance to sexual activity that occurs while she is unconscious? A majority of the Supreme Court of Canada recently answered this question in the negative in R. v. J.A., 2011 SCC 28, taking the same approach as a majority of the Alberta Court of Appeal in R. v. Ashlee, 2006 ABCA 244. There were strong dissents in each case, however, indicating that the resolution of this issue is far from obvious for some judges. Also interesting is that judges on both sides of the issue frame their analyses in terms of the sexual autonomy of the complainant, and see their decisions as consistent (or at least not inconsistent) with the leading Supreme Court of Canada authority on consent, R. v. Ewanchuk, [1999] 1 S.C.R. 330. This comment will discuss the J.A. and Ashlee decisions and assess the merits of the different reasons for decision in light of the applicable statutory provisions and case law and the courts’ attention (or lack thereof) to context.

Confidentiality and Context: Lawyers’ obligations of confidentiality and loyalty when acting in both lawyer and non-lawyer roles for a client

PDF version: Confidentiality and Context: Lawyers’ obligations of confidentiality and loyalty when acting in both lawyer and non-lawyer roles for a client 

Case considered: Kent v. Martin, 2011 ABQB 298

Lawyers owe clients a duty of confidentiality, and also a fiduciary obligation to act in furtherance of their clients’ legal interests. The duty of confidentiality and the duty of loyalty are related. Breach of a client’s confidences without the client’s consent obviously has the potential to undermine accomplishment of the client’s legal objectives. The ability of a client to repose confidence in her lawyer has been identified by the Supreme Court as important to permit the lawyer to provide “sound legal advice” to that client (Smith v. Jones [1999] S.C.J. No. 15 at para. 46).

The specific obligations arising from lawyer duties of confidentiality and loyalty can be complex, however, particularly when a lawyer acts in more than one capacity for a client, and where the client’s interests may be both legal and non-legal. A recent Alberta case highlights these issues.

Specific Performance of Contracts for the Sale and Purchase of Land: Is Deeming Land to be Unique Enough to Return to Pre-Semelhago Days?

PDF version: Specific Performance of Contracts for the Sale and Purchase of Land: Is Deeming Land to be Unique Enough to Return to Pre-Semelhago Days? 

Case commented on: Raymond v. Raymond Estate, 2011 SKCA 58

Fifteen years ago, before the Supreme Court of Canada decision in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 1996 CanLII 209 (S.C.C.), it was taken for granted that land is inherently unique and therefore, as a matter of course, the equitable remedy of specific performance would be awarded for breaches of contracts for the sale of real property. However, in Semelhago, Justice Sopinka questioned those assumptions, stating in obiter dicta on behalf of the majority that specific performance should “not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available” (at para. 22). Subsequent confusion in the case law about under what circumstances specific performance is available and the unforeseen consequences of the loss of automatic grants of specific performance in a Torrens land titles system attracted the attention of the Alberta Law Reform Institute (ALRI). Its October 2009 Final Report No. 97 on Contract for the Sale and Purchase of Land: Purchasers’ Remedies recommended (at paras. 8, 61) that “for the purpose of determining whether a purchaser under a contract for the sale of land is entitled to specific performance of the contract, the land that is the subject of the contract be conclusively deemed to be unique at all material times, and legislation should be enacted to that effect”. However, no such legislation has been tabled in the Alberta legislature in the past 18 months. Now, the May 2011 decision of the Saskatchewan Court of Appeal in Raymond v. Raymond Estate suggests that ALRI’s recommendation, even if enacted, may not be enough to return the law to its pre-Semelhago state. It does so by holding that Semelhago introduced a two part test for the granting of specific performance, with an objective component and a subjective one. It appears that the ALRI recommendation only addresses the objective component.

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