Like A House of Cards: Sentencing McKnight

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Case Commented On: R v McKnight, 2020 ABQB 443 (CanLII)

Law abhors a vacuum; to be meaningful, legal rules and principles must be tethered to reality. This means the law is animated by the factual circumstances of each particular case. Law garners gravitas or weight in the application of the law to the facts. In short, the law needs context. This basic proposition is particularly important in sentencing an offender after conviction by a jury. Once the jury trial ends, the trial judge is no longer the “judge of the law” (R v Pan; R v Sawyer, 2001 SCC 42 (CanLII) at para 43) but transforms into the sentencing judge, who must work with both fact and law. The recent Alberta Queen’s Bench sentencing decision by Justice Sulyma in R v McKnight, 2020 ABQB 443 (CanLII), highlights the difficulties inherent in this judicial transition and the need for clarification in this area. Not unlike the metaphorical “house of cards”, the decision also demonstrates the importance of the foundational facts to the integrity of the entire sentencing process.

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The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

By: Fraser Gordon

PDF Version: The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

Bill Commented On: Bill 17, the Mental Health Amendment Act, 2020, 2nd Sess, 20th Leg, Alberta, 2020

Bill 17, the Mental Health Amendment Act (MHAA) was introduced to the legislature on June 4, 2020, with an anticipated proclamation date set for September, 2020. While presented by Tyler Shandro, the Minister of Health, as aimed at “strengthening the rights of these patients and assuring their rights are provided for and respected while they receive care” (Alberta Hansard, June 4, 2020 at 1125), this Bill also represents the province’s response to JH v Alberta Health Services, 2019 ABQB 540 (CanLII), which found several provisions of Alberta’s Mental Health Act, RSA 2000, c M-13 (MHA) an infringement on a person’s rights under sections 7, 8, 10(a) and (b) of the Canadian Charter of Rights of Freedoms.

In particular, the legislature recognized the Court’s concern in JH as to the suitability of the MHA’s provisions for involuntary detention and treatment for persons suffering from mental disorders that are untreatable, and has sought, in the MHAA, to refocus, and perhaps narrow, these provisions upon persons who are suffering from severe mental illness that are capable of being resolved by treatment. This change finds expression in the MHAA’s change to the definition of a “mental disorder”, which now excludes “a disorder in which the resulting impairment is persistent and caused solely by an acquired or congenital irreversible injury.” In this post, I want to consider the potential effects of this change in caring for persons now excluded under the MHAA’s definition. My concern is that this new definition may create a gap in the current legislative scheme for the care of persons suffering from “persistent” mental health disorders, and place such persons – and others – at risk. This would certainly be an ironic – and I am sure unintended – outcome of legislation which has as its aim the strengthening of the rights of persons suffering from mental disorders.

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Offers to Settle and The Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

By: Drew Yewchuk & Sarah Shibley

PDF Version: Offers To Settle and the Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

Case Commented On: Stewart v Toronto (Police Services Board), 2020 ONCA 460 (CanLII)

Stewart v Toronto (Police Services Board), 2020 ONCA 460 (CanLII) is a costs decision that concludes a ten-year legal battle about the power of police to stop and search protestors. Mr. Stewart was successful in obtaining a court decision that the Toronto Police Service (TPS) had violated the Charter by searching him without lawful justification and interfering with his freedom of speech. Despite his success, because of the Toronto Police Service’s $10,000 settlement offer to Mr. Stewart in 2017 and Ontario’s rules for litigation costs and offers to settle, it ultimately cost Mr. Stewart more than $60,000 to successfully enforce his constitutional rights. This post argues that the normal cost rules relating to offers to settle are ill suited to public interest litigation against government bodies.

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Final Strategic Assessment on Climate Change: Zero Net Effect?

By: David V. Wright

PDF Version: Final Strategic Assessment on Climate Change: Zero Net Effect?

Document Commented On: Environment and Climate Change Canada, Final Strategic Assessment of Climate Change (Gatineau: ECCC, 2020)

The federal government recently released the final version of its Strategic Assessment of Climate Change (SACC). This represents a potentially important step in the implementation of the new federal Impact Assessment Act, SC 2019, c 28, s 1 (IAA or the Act). This post builds on my previous posts (here and here) by setting out key differences between the final and draft SACC and providing associated commentary. Overall, the final SACC does take steps in the right direction in several ways, such as integrating the new 2050 net-zero emissions commitment throughout all phases of the assessment. However, as further discussed below, there are several features that are problematic or ambiguous, particularly the persisting lack of detail regarding how the Impact Assessment Agency of Canada (IACC or the Agency) will assess project-specific emissions information against Canada’s climate change commitments and how such an assessment will inform final decisions under the new Act. Further, the entire SACC initiative represents a relatively narrow approach to using the new federal impact assessment (IA) regime as a tool for achieving Canada’s climate change commitments. Ultimately, it is unclear whether the path the SACC sets for implementation of the new IAA regime’s climate change requirements will have any net effect on Canada achieving its commitments in respect of climate change.

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The Expansion of Unconscionability – The Supreme Court’s Uber Reach

By: Jassmine Girgis

PDF Version: The Expansion of Unconscionability – The Supreme Court’s Uber Reach

Case Commented On: Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII)

Contracts of adhesion, or standard form agreements (SFAs) are oftentimes unfair. They are drafted by the stronger parties. Their provisions are dense and difficult to understand. The party signing does not have a say in their contents – they are take-it-or-leave-it agreements. They are usually lengthy and cannot feasibly be read in the short time it takes the parties to transact. Some of the more onerous terms are deeply embedded (hidden?) in the document. The contracts more often than not limit the liability of the drafting party at the expense of the other party. They ensure occupiers are not liable for negligence, including their own. And the list goes on.

We are not powerless against these contracts – common law and equitable doctrines protect weaker parties from harsh or onerous provisions. Is this enough? Probably not. Certainly the Supreme Court of Canada thought more should be done to protect weaker parties against SFAs in the case of Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII). But instead of leaving this job to the legislature, as it should have, it expanded the reach of the doctrine of unconscionability without providing any substantial guidance or principles, thereby furnishing lower courts with an enormously powerful weapon to use against SFAs.

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