In R. v. Labaye, the Supreme Court revised the test for Criminal Code offences involving indecency and obscenity, replacing the previous community standards of tolerance test. Despite the Supreme Court’s demand for positive knowledge of (risk of) harm, the Labaye test still largely protects a normative vision of society rather than promoting human sexuality and freedom of expression. The judiciary post-Labaye continue to fill evidentiary vacuums with circumstantial evidence and intangible harms, informed by judicial tastes rather than empirical harm. Labaye has also become a discursive construct that is explicative of harm in other public law arenas. This article reveals the inconsistencies in applications of the Labaye test and considers whether a more principled definition of harm is needed in indecency and obscenity cases and beyond.
在R. v. Labaye案中，最高法院修订了涉及猥亵和淫秽的刑法典罪行的测试，取代了以前的社区容忍测试标准。尽管最高法院要求对伤害(风险)有积极的认识，但Labaye测试仍然在很大程度上保护了社会的规范愿景，而不是促进人类的性行为和言论自由。拉拜案之后的司法部门继续用间接证据和无形伤害来填补证据真空，这些证据是根据司法口味而不是经验伤害来提供的。Labaye也成为了一种阐释其他公法领域伤害的话语结构。本文揭示了Labaye测试应用中的不一致性，并考虑在猥亵和淫秽案件中是否需要一个更有原则的伤害定义。
{"title":"Reconstitutions of Harm: Novel Applications of the Labaye Test Since 2005","authors":"Richard Jochelson, J. Gacek","doi":"10.29173/ALR2543","DOIUrl":"https://doi.org/10.29173/ALR2543","url":null,"abstract":"In R. v. Labaye, the Supreme Court revised the test for Criminal Code offences involving indecency and obscenity, replacing the previous community standards of tolerance test. Despite the Supreme Court’s demand for positive knowledge of (risk of) harm, the Labaye test still largely protects a normative vision of society rather than promoting human sexuality and freedom of expression. The judiciary post-Labaye continue to fill evidentiary vacuums with circumstantial evidence and intangible harms, informed by judicial tastes rather than empirical harm. Labaye has also become a discursive construct that is explicative of harm in other public law arenas. This article reveals the inconsistencies in applications of the Labaye test and considers whether a more principled definition of harm is needed in indecency and obscenity cases and beyond.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41465611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Honouring The Honourable William A. Stevenson","authors":"Theron Brown","doi":"10.29173/alr2541","DOIUrl":"https://doi.org/10.29173/alr2541","url":null,"abstract":" \u0000 ","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44415734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2017, the Liberal government released Bill C-59, which was its update to the national security legislation that was introduced by the previous government via Bill C-51. Bill C-59’s goal was to address the criticisms of its predecessor, including the new “kinetic” powers granted to the Canadian Security and Intelligence Service (CSIS) to actively disrupt threats to the security of Canada. While Bill C-59 made some improvements to ensure that CSIS’s new powers are exercised in accordance with the Charter, there are still deficiencies to be addressed. This article reviews the changes brought in with Bill C-59, examines how those amendments may not avoid constitutional challenge, and outlines what a section 1 Oakes justification may look like. Ultimately, to address the Charter implications of the new legislation, further changes are required, including the use of court-appointed special advocates to ensure an adversarial system and further oversight of CSIS’s new, disruptive authority.
{"title":"Bill C-59 and CSIS’s “New” Powers to Disrupt Terrorists Threats: Holding the Charter-Limiting Regime to (Constitutional) Account","authors":"Michael E Nesbitt","doi":"10.29173/alr2575","DOIUrl":"https://doi.org/10.29173/alr2575","url":null,"abstract":"In 2017, the Liberal government released Bill C-59, which was its update to the national security legislation that was introduced by the previous government via Bill C-51. Bill C-59’s goal was to address the criticisms of its predecessor, including the new “kinetic” powers granted to the Canadian Security and Intelligence Service (CSIS) to actively disrupt threats to the security of Canada. While Bill C-59 made some improvements to ensure that CSIS’s new powers are exercised in accordance with the Charter, there are still deficiencies to be addressed. This article reviews the changes brought in with Bill C-59, examines how those amendments may not avoid constitutional challenge, and outlines what a section 1 Oakes justification may look like. Ultimately, to address the Charter implications of the new legislation, further changes are required, including the use of court-appointed special advocates to ensure an adversarial system and further oversight of CSIS’s new, disruptive authority.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47594049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness.
{"title":"Instrumental Rationality and General Deterrence","authors":"Colton Fehr","doi":"10.29173/ALR2564","DOIUrl":"https://doi.org/10.29173/ALR2564","url":null,"abstract":"The Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43756893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The settler colonial justice system of the Canadian state continues to inflict immense harm on Indigenous people. One response to these harms could be the creation of urban Indigenous courts in line with the Truth and Reconciliation’s call for Indigenous justice systems that are expressions of self-determination. While any initiative that operates within the confines of the mainstream justice system has significant limitations, the practices of existing courts that avoid convictions, apply Indigenous legal principles, and cede genuine control to Indigenous people and communities demonstrate the potential for a meaningful break from the status quo. The creation of an urban court could facilitate a resurgence of Indigenous justice while mitigating the harm caused by the settler colonial justice system.
{"title":"Urban Indigenous Courts: Possibilities for Increasing Community Control Over Justice","authors":"Gabe Boothroyd","doi":"10.29173/ALR2529","DOIUrl":"https://doi.org/10.29173/ALR2529","url":null,"abstract":"The settler colonial justice system of the Canadian state continues to inflict immense harm on Indigenous people. One response to these harms could be the creation of urban Indigenous courts in line with the Truth and Reconciliation’s call for Indigenous justice systems that are expressions of self-determination. While any initiative that operates within the confines of the mainstream justice system has significant limitations, the practices of existing courts that avoid convictions, apply Indigenous legal principles, and cede genuine control to Indigenous people and communities demonstrate the potential for a meaningful break from the status quo. The creation of an urban court could facilitate a resurgence of Indigenous justice while mitigating the harm caused by the settler colonial justice system.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47918253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis. Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.
{"title":"The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult","authors":"R. Hamilton, J. Nichols","doi":"10.29173/ALR2520","DOIUrl":"https://doi.org/10.29173/ALR2520","url":null,"abstract":"The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis. \u0000Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43573855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores familial jurisdiction over citizenship, using the study of Anishinaabe citizenship practices in the Fort William First Nation, through the lens of adoption stories. The author highlights how families are able to use adoption to regulate citizenship, bringing new citizens into the nation, while also selecting those who do not belong. The familial system of affirmation is different than a Certificate of Indian Registration and requires collective action, rather than individual self-determination. Belonging at Fort William is further argued to not depend solely on blood quantum, Indian status, or band membership but, rather, depends on active community determination and accountability to the community on an on-going basis. Seen this way, adoption narratives reveal a citizenship order that challenges Canada’s claimed jurisdiction to discern who belongs with First Nations.
本文通过收养故事的视角，通过对威廉堡第一民族(Fort William First Nation)的阿尼什纳贝人(Anishinaabe)公民身份实践的研究，探讨了家庭对公民身份的管辖权。作者强调了家庭如何能够通过收养来规范公民身份，将新公民带入国家，同时也选择那些不属于这个国家的人。家族确认制度不同于印第安人登记证书，它需要集体行动，而不是个人自决。在威廉堡的归属不仅取决于血统数量、印第安人身份或乐队成员，而是取决于积极的社区决心和对社区的持续负责。从这个角度看，收养叙事揭示了一种公民秩序，挑战了加拿大声称的区分谁属于第一民族的管辖权。
{"title":"Adoption Constitutionalism: Anishinaabe Citizenship Law at Fort William First Nation","authors":"Damien Lee","doi":"10.29173/ALR2523","DOIUrl":"https://doi.org/10.29173/ALR2523","url":null,"abstract":"This article explores familial jurisdiction over citizenship, using the study of Anishinaabe citizenship practices in the Fort William First Nation, through the lens of adoption stories. The author highlights how families are able to use adoption to regulate citizenship, bringing new citizens into the nation, while also selecting those who do not belong. The familial system of affirmation is different than a Certificate of Indian Registration and requires collective action, rather than individual self-determination. Belonging at Fort William is further argued to not depend solely on blood quantum, Indian status, or band membership but, rather, depends on active community determination and accountability to the community on an on-going basis. Seen this way, adoption narratives reveal a citizenship order that challenges Canada’s claimed jurisdiction to discern who belongs with First Nations.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44751989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Canada’s reconciliation with Indigenous peoples and groups in Canada is an ambitious goal with little in the way of clear direction. Canadian courts have provided limited direction in their decisions, yet the result of litigation has imposed a concept of reconciliation based on First Nations remaining subordinate to state authority and interests. Reconciliation will be confounded without gaining a shared understanding with Indigenous peoples. Different Indigenous groups will have their own interpretation of what reconciliation may require to be successful. One approach to seeking common understandings is for Canadians to learnhow relationality operates as a function of disparate Indigenous legal orders. While substantive research into Indigenous legal orders is relatively new in Canadian scholarship, there is much knowledge to be gleaned from interdisciplinary research, particularly in anthropology, from the early twentieth century. At the risk of presenting an abrupt shift in disciplinary paradigms in this article, the author follows a thread of relationality from Canadian courts through the lens of doctrinal jurisprudence into relationality within various Indigenous legal orders through anthropological study. Combined, the article offers a potential path to reconciliation through relationality within Indigenous legal orders.
{"title":"Reconciliation Through Relationality in Indigenous Legal Orders","authors":"Alan Hanna","doi":"10.29173/ALR2524","DOIUrl":"https://doi.org/10.29173/ALR2524","url":null,"abstract":"Canada’s reconciliation with Indigenous peoples and groups in Canada is an ambitious goal with little in the way of clear direction. Canadian courts have provided limited direction in their decisions, yet the result of litigation has imposed a concept of reconciliation based on First Nations remaining subordinate to state authority and interests. Reconciliation will be confounded without gaining a shared understanding with Indigenous peoples. Different Indigenous groups will have their own interpretation of what reconciliation may require to be successful. One approach to seeking common understandings is for Canadians to learnhow relationality operates as a function of disparate Indigenous legal orders. While substantive research into Indigenous legal orders is relatively new in Canadian scholarship, there is much knowledge to be gleaned from interdisciplinary research, particularly in anthropology, from the early twentieth century. At the risk of presenting an abrupt shift in disciplinary paradigms in this article, the author follows a thread of relationality from Canadian courts through the lens of doctrinal jurisprudence into relationality within various Indigenous legal orders through anthropological study. Combined, the article offers a potential path to reconciliation through relationality within Indigenous legal orders.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42823612","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The provisions of the federal Cannabis Act came into force on 17 October 2018, opening a new era of cannabis management in Canada. We examine cannabis in Canada through the lens of reconciliation and the rights of First Nations, Métis, and Inuit peoples. There is potential for Indigenous communities to benefit from cannabis legalization, but also a very real risk that the new legal framework will simply perpetuate existing injustices. We show that the new legislation is inadequate both in terms of lack of consultation with Indigenous communities, as well as in terms of substantive provisions — and omissions — in the legislation itself.
{"title":"Cannabis, Reconciliation, and the Rights of Indigenous Peoples: Prospects and Challenges for Cannabis Legalization in Canada","authors":"Konstantia Koutouki, K. Lofts","doi":"10.29173/ALR2519","DOIUrl":"https://doi.org/10.29173/ALR2519","url":null,"abstract":"The provisions of the federal Cannabis Act came into force on 17 October 2018, opening a new era of cannabis management in Canada. We examine cannabis in Canada through the lens of reconciliation and the rights of First Nations, Métis, and Inuit peoples. There is potential for Indigenous communities to benefit from cannabis legalization, but also a very real risk that the new legal framework will simply perpetuate existing injustices. We show that the new legislation is inadequate both in terms of lack of consultation with Indigenous communities, as well as in terms of substantive provisions — and omissions — in the legislation itself.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45075512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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