Legal Feeds Blog
Amber Alert issued for five-year-old girl abducted in Aurora, Canadian Press
Hearing continues for B.C. couple accused in terrorism plot, Canadian Press
Body of missing First Nations teen found in Kenora, Canadian Press
The Supreme Court of Canada today struck down two so-called tough-on-crime measures introduced by the former Conservative government, ruling the changes to sentencing practices were unconstitutional.
|The SCC struck down two Harper-era tough-on-crime laws.|
Mandatory minimum sentences for non-violent drug offenders were enacted in 2012, part of changes to the criminal law made by the Conservatives.
“The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional,” said the majority ruling written by Chief Justice Beverly McLachlin for justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis, and Suzanne Côté”
“If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment,” said the majority.
In the second case, R. v. Safarzadeh‑Markhali, the court voted unanimously against denying enhanced credit for pre-sentence time spent in custody to those that had been denied bail primarily due to a prior conviction.
Reforms in 2009 made those that had been denied bail primarily because of a previous conviction ineligible for enhanced credit, limiting the credit for pre-sentence time served to a one-to-one basis, rather than one-and-a-half days.
The court ruled that the denial of enhanced credit was overly broad.
“The denial of enhanced credit for pre-sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with the legislative purpose of s. 719(3.1) of the Code, which is to enhance public safety and security. Section 719(3.1) thus violates s. 7 of the Charter,” said the unanimous ruling, also penned by McLachlin.
There are two new law deans on the scene.
|Christopher Waters is the new dean of law at the University of Windsor.|
Waters, a member of Windsor’s faculty of law since 2007 and associate dean from 2009-12, has been acting dean since last September. Now that he’s been confirmed for a five-year term he can “really sink my teeth into some of the big items,” he says. He intends to “champion some of the things that make Windsor unique.”
First on his list: attending an Anishnabe Law Camp with the Walpole Island First Nation with a dozen faculty members.
The camp will be led by the First Nation’s elders and the agenda includes a historical overview of the land and learning from water and rocks, among other things.
“I can’t think of a better way to start my deanship,” he says. “It’s a pretty cool agenda.”
A priority for Waters during his deanship is “responding meaningfully” to the Truth and Reconciliation Report.
The report, which came out last year, made recommendations aimed specifically at law schools encouraging them to not only teach aboriginal law or Canadian law on aboriginal peoples, but also indigenous legal traditions.
“It’s important the faculty learn from the elders themselves about what the indigenous legal traditions of people in Southwestern Ontario are,” says Waters.
“We’ve hired two indigenous law professors who are starting with us in July. We hope that in addition to teaching about the common law and the civil law, we hope students will also understand that there’s a basket of legal indigenous traditions across the land.”
Moving from Canadian legal traditions to our neighbour to the south, Waters is also planning on taking “full advantage” of Windsor’s border location.
Windsor already offers an integrated dual-JD program with the University of Detroit Mercy but Waters says he would “like to expand as well, for example fully participate in a trans-boundary environmental law clinic with Wayne State University in Detroit.”
“There are lots of collaborations we can do with our partners and I think our border location gives a really unique opportunity to show international and transnational law in action.”
Another goal for Waters it to enhance experiential learning opportunities at the law school. He says he wants to look at other ways of doing experiential learning in and out of the classroom.
“I have to pitch it to faculty council but I’d like to see every student graduating from Windsor Law having had a meaningful experiential learning opportunity,” he explains, adding that the admissions process welcomes rounded students who have the ability to excel in the study of law but also contribute to their community.
“Next year or the year after we’ll be hiring a professor specifically to help lead us in that regard.”
From lofty aspirations, to more housekeeping aspects of the job, Waters says one of the challenges he’s inheriting is that the law school is outgrowing its current building. He will be looking at moving the faculty or a “significant renovations” involving a capital campaign.
Black-Branch, who was a teacher before beginning his academic law career, is currently a professor and chair in international law, as well as associate dean of education at Royal Holloway, University of London.
As well as holding multiple academic leadership roles, Black-Branch is also involved in the legal profession. From experience gained through chairing committees, launching roundtable forums, and co-editing journals and a peer-reviewed book series,
“I believe the faculty of law can look forward to a very promising future under his leadership,” said Joanne Keselman, provost and vice president, academic, at Robson Hall in a news release announcing Black-Branch’s appointment.
History today was made as the Supreme Court of Canada declared all non-status and Métis Indians to be, without exception, “Indians” under the Constitution — and afforded all rights therein.
|Lawyer Jason Madden says he was pleasantly surprised at how far the court was willing to go to bring Métis and non-status Indians into the fold.|
The ruling, Daniels v. Canada, is the fruit of a legal battle initiated more than a decade ago by the late Métis leader Harry Daniels, who sought on behalf of Métis and non-status Indians a three-part declaration:
1. that Métis and non-status Indians are “Indians” as the term is used in s 91(24) of the Constitution Act, 1867,
2. that the Queen owes a fiduciary duty to them as such,
3. and that they have the right to be consulted by the federal government on a collective basis, respecting their rights, interests and needs as Aboriginal people.
At trial, the court dismissed the second and third declarations, but ruled that Métis and non-status aboriginals were indeed Indians under the Constitution.
The Federal Court of Appeal, however, narrowed that definition last year, excluding non-status Indians outright and ruling that only Métis who met certain criteria under the SCC’s 2003 decision in R. v. Powley could be deemed “Indian.”
Today, a unanimous panel of nine judges set aside the appeal court’s narrow definition and granted constitutional rights to all Métis and non-status Indians. And while the decision, written by Justice Rosalie Abella, similarly dismisses the second and third declarations, it does so only because fiduciary and consultative duties are presumptive under the first declaration.
“There is no need to delineate which mixed ancestry communities are Métis and which are non status Indians. They are all ‘Indians’ under s. 91(24) by virtue of the fact that they are all Aboriginal peoples,” the decision states.
“The historical, philosophical, and linguistic contexts establish that ‘Indians’ in s. 91(24) includes all Aboriginal peoples, including non status Indians and Métis. The first declaration should accordingly be granted.”
Jason Madden, who represented the Métis National Council, says he was pleasantly surprised by the emphatic language used by Justice Abella, and how far the court was willing to go to bring Métis and non-status Indians into the fold.
“We got the trifecta today, and we weren’t expecting it,” he says. “We were clearly expecting number one, which was inclusion, but they went even further to say, ‘On fiduciary relationships, we will reaffirm what we’ve already said, and on the duty to negotiate . . . we’ve already recognized it.”
Madden calls the decision “elegant” in the way it “walks around” the issue of whether non-status and Métis aboriginals should be forced to meet criteria before being deemed Indian enough to demand consultation and negotiation.
As the decision explains, s. 91(24) and s. 35 in the Constitution play different roles: the former sets out jurisdictional obligations owed to aboriginals; the second creates a framework for land claims and treaty negotiations.
So, while Métis and non-status aboriginals are all collectively “Indians” under s. 91(24) of the Constitution, individual native bands, along with Métis and non-status Indians, must be assessed on a case-by-case basis — employing the framework set out under s. 35 and the criteria under Powley — when pressing cases around land claims and treaties.
That may not sound like a substantial victory, but until now Métis and non-status Indians have been denied jurisdictional responsibility or even a seat at the table.
“Because of the lack of accountability and the lack of certainty, these people have fallen through the cracks,” says Madden. “And the court is saying, ‘No longer . . . You cannot sit on your hands when you know there are rights and claims there and there is a positive obligation to negotiate.’”
Perhaps more importantly, Madden says the decision opens the door to wider reconciliation with Métis and non-status Indians, who’ve historically been disenfranchised and disregarded by both government and aboriginal groups.
“I actually like the way Abella starts it. She says that the curtains are opening wider on the stage, because previously Métis have been shuffled off the stage, and what she is saying is that reconciliation is about all aboriginal people, and that they need to be included on the stage.”
The Liberal government unveiled draft legislation today on doctor-assisted death which would apply to adults suffering incurable illness or disability but stopped short of extending it to minors or the mentally ill for now.
|Parliament will vote on the draft assisted-dying law by June 6. (Photo: Gail J. Cohen)|
The Supreme Court of Canada overturned a ban on physician-assisted dying last year but gave the new government of Prime Minister Justin Trudeau extra time to pass legislation, adding Canada to the handful of Western countries that allow the practice.
Trudeau, whose father declined treatment for cancer before his 2000 death, said Canadians were “extremely seized with this issue.”
“It’s a deeply personal issue that affects all of us and our families and all of us individually as we approach the end of our lives,” he told a news conference in London, Ont.
“The plan we have put forward is one that respects Canadians’ choices while putting in place the kinds of safeguards needed.”
Under the law, patients would have to make a written request for medical assistance in dying or have a designated person do so if they are unable. There would be a mandatory waiting period of at least 15 days in many cases, and patients would be able to withdraw a request at any time.
Patients would also have to be experiencing “enduring and intolerable suffering” and death would have to be reasonably foreseeable. Only those eligible for Canadian health services are eligible, eliminating the prospect of “suicide tourism.”
Critics are already calling out some aspects of the law. Toronto health law practitioner Mark Handleman says the draft law flies in the face of the Supreme Court’s decision in Carter v. Canada (Attorney General), which recognized that there are people who have conditions such as multiple sclerosis, which is debilitating but not terminal.
“There is a requirement that the patient’s death is ‘reasonably foreseeable,’ says Handleman. “What does that mean? Everyone’s death is ‘reasonably foreseeable.’ What isn’t foreseeable is the timeline, certainly for healthy patients but also for many people with terminal conditions. Medical complications, effective cures, and even a person’s will to live (or lack thereof) will affect the time line. What if death is ‘reasonably foreseeable” within five years? Ten years?”
The Supreme Court stipulated that a patient need not accept a particular, or any, treatment, notes Handleman. The legislation requires that the illness, disease, or disability also be “incurable.”
But “what if it is curable, but with a treatment the patient does not wish to accept?” he asks.
The government did not adopt suggestions from a parliamentary committee that had suggested the law should also apply to those who suffer only from mental illness, or those who put forward advance requests. It said those issues needed more study.
Polls show physician-assisted suicide has broad support in Canada but the issue has divided politicians in Parliament as they grapple with how to protect vulnerable Canadians while respecting their rights and choices at the end of life.
The Liberals will allow a free vote on the issue and not require its legislators to back it.
Handleman notes the government did not table the regulations setting out when and how reports of medical assisted death must be made, or to whom. He says, “if these are not available when the legislation is passed, what assurances of consistent application of the law, of protection of the vulnerable, of access to assisted death for all Canadians equally, do the people of Canada have?”
He also suggests that there will likely be court challenges to the legislation from those under the age of 18 who wish aid to die; persons with intolerable conditions that are not terminal — including people with serious mental disorders.
In December, a Quebec court ruled the province can implement Canada’s first law permitting physician-assisted death while the federal government decides on a framework for how to handle the issue.
The Quebec legislation recognizes the need for access to palliative care, says Handleman, while this federal legislation “does not address this valid concern about a significant shortage of this resource everywhere in Canada.”
With files from Reuters.
Assisted-dying law to be unveiled today, Canadian Press
Supreme Court to rule today on Metis, non-status Indian rights, Canadian Press
NEW YORK — The complex duties of today’s corporate counsel can be such a tightrope act — carefully walking among the board, the CEO and the law — that it’s surprising leotards and long balance poles aren’t given as part of the employment package.
|'There has been a revolution of GC’s role within their companies that has transformed both law and business,' says Ben Heineman. (Photo: Gregg Wirth)|
“There has been a revolution of GC’s role within their companies that has transformed both law and business,” said Heineman.
His comments came at an event sponsored by Thomson Reuters and the Harvard Law School, highlighting the public launch of his new book, The Inside Counsel Revolution: Resolving the Partner-Guardian Tension, published by the American Bar Association.
Indeed, the four main framework ideas Heineman described are not some dry, guiding principles; rather, they are the bedrock on which all day-to-day activities and interactions in the corporate legal department should be built. The four framework ideas for GCs include:
1. Fusing together high performance, high integrity, and sound risk management
Heineman said that successfully fusing these elements together at the corporate level not only mitigates risk but also achieves positive benefits within the company, the marketplace, and broader society. Think of it as a “corporation-specific optimization” that creates value for key stakeholders — from shareholders to employees and customers.
2. Becoming the needed lawyer/statesman
Today’s GCs are expected to be outstanding legal experts, wise counselors, and accountable leaders for the company, said Heineman, but that has to be balanced with a strict responsibility to the higher tenants of the law. “The first question should always be, ‘Is it legal?’” he said. “And the last should always be, ‘Is it right?’”
3. Resolving the partner/guardian tension
This is where the tightrope walk gets really tricky. GCs have to balance their duties to the company as an employee and stakeholder with their duty to guard the company from any legal missteps that could damage it. Heineman pointed out that GCs battle a lot of negative perceptions in this area, and attitudes about “company lawyers” as naysayers, being overly cautious, and hurting business are common and must be battled back. “As a GC, you owe it to the board to speak up, even though that may put you cross-ways with your CEO.”
4. Creating and maintaining an ‘integrity culture’
Heineman described this framework idea as one of the most important. The ability to articulate and define shared principles and practices throughout not only the corporate legal department but the company as a whole is vital, he explained, and management walking the walk is key. “It is this culture that will influence how people will feel, think and work,” he explained. “But the leaders have to live it.”
Heineman said instilling these framework ideas within a company have become more important — and more possible — as general counsel have become more “sophisticated, capable, and influential” within a company.
“They are now a core member of top management, participating in discussions beyond risk and the law, to include opportunities and business development,” he said.
University of Calgary law professor Alice Woolley has been appointed Calgary’s first ethics adviser. Woolley takes the role alongside Allen Sulatycky, a former associate chief justice of the Court of Queen’s Bench of Alberta, who has been appointed as the city’s independent integrity commissioner.
|Alice Woolley says her new job is to help city councillors navigate the ethical boundaries of their roles.|
Woolley, an outspoken academic who writes about legal ethics and professionalism, also has a background in administrative law. Her new role will be helping city councillors navigate the legality and ethics of their individual actions, she says.
“City council discharges a statutory function. They have a specific role that they occupy and there are things they should do in that role and things they shouldn’t do in that role,” says Woolley. “My job is just to help them navigate that boundary to the extent there are issues that they’re worried about.
“It’s not about helping them be good, upstanding citizens of the city of Calgary; they’re more than capable of doing that on their own. It’s just a question of in this role, there are things you ought to do and things you ought not do, and sometimes, like in all roles, the difference between those is not always obvious,” Woolley adds.
If complaints about members of city council can be resolved by an apology or via mediation, it would fall into Woolley’s role. Sulatycky would handle more complex complaints requiring full investigations and hearings.
Woolley will remain a full-time professor of law at the University of Calgary.
“I’m not leaving; I’m still going to be at the university and I’m still going to be writing things that get under the skin of people,” she says with a chuckle.
“It will be complicated to make it work time-wise but it’s not taking away my university job and I’d never have taken it if it was,” she adds.
According to Nenshi’s office, Sulatycky will be the first city integrity commissioner in western Canada. A former MP for Rocky Mountains, he previously served on various House of Commons committees and as parliamentary secretary to both the ministers of Energy, Mines and Resources and Indian Affairs and Northern Development.
Sulatycky was appointed to the Court’s Queen’s Bench of Alberta in 1982. He later became a judge of the appeal courts in Alberta and Nunavut before his appointment as associate chief justice of the Court of Queen’s Bench of Alberta. Sulatycky retired as a judge in 2013.
By June, Sulatycky and Woolley are to provide city council with a report with enhanced definition and scope of their roles. They’re also to present a plan to transition responsibility for the city’s whistle-blower program (as it relates to council members) from the city auditor’s office to the newly created integrity and ethics office.
Subscribe to Legal Feeds
- David Dias
- Patricia Cancilla
- Mallory Hendry
- Jennifer Brown
- Yamri Taddese
- Gabrielle Giroday
- Gail J. Cohen
- Jim Middlemiss
- Karen Lorimer