Challenges to the existing constitutional order in Canada are not new. My use of the phrase “constitutional order” highlights that one of the reasons (although not the only one) for these challenges has been to create chaos or (more mildly) to disrupt the constitutional status quo. Here I refer to several recent examples of the how governments and individuals and groups may challenge the constitutional order and consider where the amended Alberta Sovereignty Within a United Canada (see amendments here) fits along the continuum. . . . [more]

Every semester, upper-year law students in the University of Victoria Faculty of Law’s Business Law Clinic provide free legal information on a variety of business law issues that include, but are not limited to: incorporation, financing, charitable registration, intellectual property protection, partnerships, shareholder agreements, contracts, business liability, taxation, employment relationships, and government regulation.

The Clinic’s services are available to anyone in British Columbia who needs information related to a business law question, regardless of their income or business experience. Each client has one or two students assigned to their file. The students interview the client, help identify the client’s legal . . . [more]

There is a small army of immigration lawyers who battle in the Federal Court of Canada. Most practitioners have the sense to dedicate themselves to the solicitor side of this practice. In Part 1, I will focus on issues with the current system based on my experiences with the Court over the past 10+ years. I will be posting subsequent parts based on recent (creative) approaches that address, or get around, some of the issues below. This is not a review of substantive law or decisions from the Court. This critique is focused on the system as a whole. . . . [more]

INTRODUCTION

The Ford Government’s invocation of section 33 of the Canadian Charter of Rights and Freedoms in Bill 28 prohibiting education workers from striking and imposing a contract on them has once again raised cries of “this isn’t what the notwithstanding clause is for”. Really? What exactly did everyone expect to happen? Here I explain why I think section.33 has always been a ticking time bomb — and that there’s nothing that can be done about it except through strength of public opinion. . . . [more]

“Let’s Return Good Governance to the LSO” – Slogan of the Good Governance Coalition.

Sparked by the outrage over the Statement of Principles, lawyers formed the STOPSop group (STOP the compelled Statement of Principles) during the last Bencher election. In response, to the success in getting benchers elected, another group has formed this year. This has led to the creation of a two party system: the StopSOP and the Good Governance parties.

The StopSop party and the Good Governance party could loosely be compared to the Republicans versus the Democrats. This two party system, positions Benchers against each other.

The . . . [more]

In the article “Should Canada Implement a Flat-Rate Reimbursement Model for Surrogacy Arrangements” (Chapter 5 of Surrogacy in Canada, 2018), law professors Vanessa Gruben, Angel Petropanagos, and Angela Cameron discuss reforming the current system. Presently, donors and surrogates are reimbursed for receipted expenses (see regulation SOR/ 2019-193). This is based on the guiding principle of the Assisted Human Reproduction Act that “commercial ends raise health and ethical concerns that justify their prohibition”. In line with this guiding principle, the authors recommend the adoption of a new model, the flat-rate model.

They argue that the flat-fee model is an . . . [more]

On 13 June 2022 the UK government introduced a Bill that will authorize it to unilaterally re-write key terms of the Northern Ireland Protocol (“Protocol“) which is part of the Withdrawal Agreement it made with the EU on Brexit, less than 3 years ago.

Although trade intricacies between Northern Ireland and the rest of Britain may not be high on our priorities here in Canada, the fact that this Bill has been introduced at all should be of concern to those who believe in commitment to international law.

Let me explain why I say this.

What the Protocol . . . [more]

Lately, there has been an explosion of court documents being rejected from filing. Reasons for rejection are numerous. There is almost no discernible pattern. Reasons include, but are not limited to:

• failure to provide a back page,
• submitting documents separately when they should be combined,
• failing to have a witness to an electronic signature (not to be confused with a commissioned document),
• a form is missing,
• information is missing on the form,
• disapproving of the affiant’s signature, and so forth.

It is speculated that the change in staffing at the courts is the cause for the increase in rejections. (E.g. . . . [more]

Thoughts on the BCCA's decision in Trial Lawyers Association of British Columbia v. British Columbia (A-G), 2022 BCCA 163 on the jurisdiction of the Civil Resolution Tribunal of BC.

David Milgaard is reported to have passed away this weekend at the age of 69. He spent 23 years in prison for a rape and murder he did not commit. Milgaard was convicted in 1970, and spent the ages of 16 to 39 in prison, following the discovery of a nurse’s body in the snowbank. His appeal to the Saskatchewan Court of Appeal was dismissed the following year, and the Supreme Court of Canada refused him leave to appeal. That same year, a pattern of sexual assaults committed by Larry Fisher came to light, which matched the offence in question. . . . [more]

The Charter‘s right to counsel under s. 10(b) is an often misunderstood and confused right by many members of the public. This confusion likely emerges from unintentional analogies to the commonly cited American case Miranda v. Arizona, 86 S. Ct. 1602 (1966) in television and movies. The Court did adopt elements that mirrored Miranda rights in the early Charter case of R. v. Brydges, 1990 CanLII 123 (SCC). The Court found that s. 10(b) meant that police have a duty to informed individuals who are detained or arrested of their right to retain and instruct counsel, and . . . [more]

In the article, “Measuring Improvements in Access to Justice“, the authors Brea Lowenberger et al, expertly write about measuring the effectiveness of access to justice initiatives. A quick summary is outlined in the table below: In measuring initiatives, we should also be mindful on how they address litigants’ traumas. Many areas of litigation arise from or involve some sort of trauma.  In the book “Trauma: the invisible epidemic”, Dr. Paul Conti explains that “Trauma comes in various forms, frequencies, and intensities…” As a general rule, “the worst the trauma, the worse the cascade of harm that follows”. To . . . [more]