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R v Hills and R v Hilbach and Section 12 of the Charter: The Twelfth Dimension of Sentencing

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On February 9, 2023

In Criminal, Equity, Diversity, and Inclusion, Indigenous, Sentencing

By: Lisa Silver

Cases commented on: R v Hills, 2023 SCC 2 (CanLII); R v Hilbach, 2023 SCC 3 (CanLII)

PDF Version: R v Hills and R v Hilbach and Section 12 of the Charter: The Twelfth Dimension of Sentencing

Editors’ Note: This is the third in our series of posts to mark Equity, Diversity, and Inclusion Week at the University of Calgary, which deals with the impact of mandatory minimums sentences on the Charter rights of Indigenous persons.

 

We live in four dimensions of space, famously described by the space-time continuum imagined by Albert Einstein. In legal terms, a courtroom is an example of this kind of space we perceive when practicing law. If we look outside of law and further into the field of physics, even more dimensions are possible – upwards of 26 according to the Closed Unoriented Bosonic String Theory. This article is concerned with a previously unacknowledged dimension of the law, found within the confines of the sentencing hearing. In the recent Supreme Court of Canada decisions of R v Hills, 2023 SCC 2 (CanLII) and R v Hilbach, 2023 SCC 3 (CanLII) a new dimension of the sentencing hearing is revealed through the application of s 12 of the Charter, which protects the right “not to be subjected to any cruel and unusual treatment or punishment”. Specifically, in Hills and Hilbach this section is engaged by the minimum terms of imprisonment mandated by the offence provisions, both of which involve firearms. The subsequent s 12 inquiry is, like the dimensions conjured by string theory, not necessarily perceived by everyone in every sentencing hearing but is an ever-present reminder of core sentencing principles, like proportionality and parity, which ensure the continual presence of human dignity in the sentencing process. Although this twelfth dimension has been revealed by virtue of the Hills and Hilbach decisions, the s 12 inquiry itself reveals much about the limits of sentencing and the frailties of our system of justice.

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Racial Bullying in Schools

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On February 8, 2023

In Equity, Diversity, and Inclusion

By: Myrna El Fakhry Tuttle

PDF Version: Racial Bullying in Schools

Editors’ Note: This is the second in our series of posts on equity, diversity and inclusion issues to mark Equity, Diversity, and Inclusion Week at the University of Calgary. For more on the Faculty of Law’s commitment to taking action on EDI issues, see here.

 

Studies show a majority of students have witnessed or experienced racism at school, with implications for both students and teachers.

A majority of students in Canada have either witnessed or experienced racism at their schools, according to a 2021 survey by the Angus Reid Institute in partnership with the University of British Columbia (ARI/UBC Survey). In this context, racism likely means racial discrimination as opposed to systemic racism.

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There’s No Place Like Home: Why the Dower Act Remains Relevant

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On February 7, 2023

In Equity, Diversity, and Inclusion, Property

By: Laura Buckingham

Case Commented On: James v Belanger, 2023 ABKB 34 (CanLII)

PDF Version: There’s No Place Like Home: Why the Dower Act Remains Relevant

Editors’ Note: February 6 to 10 is Equity, Diversity, and Inclusion Week at the University of Calgary. We will be publishing a number of posts this week that touch on EDI issues. This first post deals with dower rights and the inequalities experienced by unmarried spouses. For more on the Faculty of Law’s commitment to taking action on EDI issues, see here.

James v Belanger, 2023 ABKB 34 is interesting because of something that isn’t mentioned in the decision. The case is not about the Dower Act, RSA 2000, c D-15. If the Dower Act applied, the whole dispute might have been avoided. A retired man would be able to stay in the home he shared with his partner for more than 15 years.

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Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

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On February 6, 2023

In Administrative Law, Conflict of Laws

By: Shaun Fluker

Cases Commented On: Auer v Auer, 2022 ABCA 375 (CanLII) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII)

PDF Version: Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

This comment examines two decisions issued concurrently by the Alberta Court of Appeal in late November 2022 that reject the application of a standard of review analysis when reviewing the vires (aka legality) of a ‘true’ regulation, (the need for the modifier is explained below). This is a topic that I have casually followed for some time. In 2016 I wrote Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? and in 2018 I wrote Judicial Review on the Vires of Subordinate Legislation. Together these earlier posts describe an uncertainty that has reigned for years over whether a standard of review analysis applies to the vires determination of subordinate legislation. In its overhaul on standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov), the Supreme Court of Canada did not explicitly address this question (for my overview on standard of review under Vavilov see Vavilov on Standard of Review in Canadian Administrative Law). The uncertainty has evolved into a jurisprudential conflict. In Portnov v Canada (Attorney General), 2021 FCA 171 (CanLII) (Portnov), the Federal Court of Appeal ruled that a Vavilov standard of review analysis applies to the vires determination of regulations (Portnov at paras 23 – 28; see more recently Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 (CanLII)). In Auer v Auer, 2022 ABCA 375 (CanLII) (Auer) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII) (TransAlta Generation) the Court of Appeal rules that Vavilov may partially apply to some regulations but not ‘true’ regulations (Justice Feehan departs from the majority in Auer on this point: Auer at para 117)).

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Law Society of Alberta to Hold a Special Meeting to Debate its Power to Mandate Indigenous Cultural Competency Training

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On February 3, 2023

In Aboriginal, Announcements, Legal Education

By: Koren Lightning-Earle, Hadley Friedland, Anna Lund, Sarah N Kriekle, Heather (Hero) Laird

Matter commented on: Notice of a Special Meeting of the Law Society of Alberta dated January 26, 2023

PDF Version: Law Society of Alberta to Hold a Special Meeting to Debate its Power to Mandate Indigenous Cultural Competency Training

Editor’s Note: This is a guest post from our colleagues at the University of Alberta and in the legal profession in Alberta. A number of members of the University of Calgary Faculty of Law have signed the open letter referenced later in this post, a copy of which can be found here.

This post provides background information about the Special Meeting of the Law Society of Alberta, which will be held on Monday February 6, 2023. At Monday’s meeting, practicing lawyers in the Province of Alberta will be asked to vote on whether their self-governing organization should be able to mandate training on specific topics to ensure that lawyers in the province are minimally competent.

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