ABLawg

The Crown has neither the power nor the duty to invest Indian monies: The use of legislation to limit trust duties

The “money management” part of the long-running Samson\Ermineskin Case has now come to a close. A unanimous seven person panel of the Supreme Court of Canada in a judgement authored by Justice Marshall Rothstein has ruled that the Government of Canada is not liable when it fails to invest First Nation royalty monies and instead deposits those monies to the credit of the Consolidated Revenue Fund (CRF) and pays the First Nations interest on those monies. In fact, the Court has ruled that the Indian Act makes it illegal for the Crown to invest Indian capital monies. The Court also ruled that the provisions of the Act which require this conclusion do not constitute discrimination within the meaning of s.15 of the Charter.

Co-Ownership is a Messy Business (Even with an Operating Agreement)

By Nigel Bankes

On February 15, 2009

In Bankruptcy and Insolvency, Oil & Gas, Property

Cases Considered: San Juan Resources Inc (Re) 2009 ABQB 55 (Registrar in Bankruptcy).

PDF Version: Co-ownership is a messy business (even with an operating agreement)

Co-ownership is a legal relationship for parties who are able to get along together. For those who cannot the court will order partition or sale under the Law of Property Act, R.S.A. 2000, c. L-7. But co-ownership is also the typical foundation for oil and gas operations in this province and elsewhere since oil and gas companies will typically be tenants in common (working interest owners) of their title documents (the freehold and Crown leases) on which their operations rely.

Using the Coercive Power of the State to Deal with Child Prostitution and Drug Abuse

By Linda McKay-Panos

On February 12, 2009

In Youth and the Law

Considered: Protection of Children Abusing Drugs Act, S.A. 2005, c. P-27.5;
Protection of Sexually Exploited Children Act, R.S.A. 2000, c. P-30.3PDF Version: Using the Coercive Power of the State to Deal with Child Prostitution and Drug Abuse

Canada’s laws dealing with problems experienced by children and youth seem to reflect a tension in philosophy between protecting children, and recognizing them as rights-holders who will soon be fully participating members of our society. This post seeks to set out the general procedures provided in these laws and to examine whether these laws actually are successful in using a protectionist coercive model to deal with two serious problems: prostitution and drug abuse by children and youth.

Interim Costs Order Upheld in Language Rights Case

By Jennifer Koshan

On February 10, 2009

In Access to Justice, Constitutional

Cases considered: R. v. Caron, 2009 ABCA 34.

PDF Version: Interim Costs Order Upheld in Language Rights Case

Gilles Caron was awarded interim costs in relation to expert and legal fees for a language rights claim that was eventually allowed by the Alberta Provincial Court (see my previous posts La Belle Province? Developments in Alberta Language Rights Cases, Special Enough? Interim Costs and Access to Justice). Caron’s language rights claim is now before the Alberta Court of Appeal, but in the meantime the Court upheld the interim costs order to Caron and clarified the jurisdiction of superior courts to grant such orders in quasi-criminal proceedings in provincial court.

Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

By Jennifer Koshan

On February 6, 2009

In Constitutional, Criminal, State Responses to Violence

Cases Considered: R. v. Warren, 2008 ABCA 436;
R. v. Schultz, 2008 ABQB 679;
R. v. Owusu, 2008 ABQB 715.

PDF Version: Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

The Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA“) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA‘s retroactive application was granted.