Authors:Erin Nelson Pages: 563 - 563 Abstract: This article examines issues of accountability and transparency in Alberta’s Mental Health Review Panel process. A person who is involuntarily admitted to a mental health facility, or who is subject to a community treatment order (CTO), can appeal to the Review Panel to have their admission certificates or CTO cancelled. This process is intended to provide access to a decision-maker to review decisions that affect the liberty of those living with mental illness. Unfortunately, Alberta’s Mental Health Review Panels are not transparent or accountable decision-makers. The article begins with a brief outline explaining the delivery of mental health care in Canada, followed by a description of Canadian law on CTOs. The article then examines Alberta’s Mental Health Review Panels — first in terms of their role in relation to CTOs, followed by concerns about accountability and transparency in the Review Panel process. Finally, the article looks at legal and system reforms that will enhance the accountability of the process. PubDate: 2022-03-22
Authors:Sarah Burningham Pages: 587 - 587 Abstract: This article reviews the impact of COVID-19 on judicial decision-making in certain areas of criminal law. Reviewing decisions from the areas of bail, sentencing, and trial within a reasonable time, the author analyzes how COVID-19 has been integrated into legal doctrine. The author concludes that doctrines are flexible enough to accommodate COVID-19 concerns. At the same time, doctrine is firmly entrenched, meaning the pandemic has not presented the opportunity for judges to rethink incarceration as some had hoped. PubDate: 2022-03-22
Authors:R. McKay White Pages: 611 - 611 Abstract: In 2014, the Supreme Court of Canada sought to address the inaccessibility of public adjudication for “ordinary Canadians” by introducing a culture shift to civil litigation. This culture shift required participants in the civil justice system to stop viewing trial as the default adjudication method and expand use of summary judgment. In this article, I critically evaluate the Supreme Court’s reasoning for the culture shift from a jurisprudential perspective and quantitatively evaluate the endeavour’s success. I find that Alberta courts have misapplied the culture shift contrary to the Supreme Court’s intentions, that the culture shift is being implemented only on a limited basis, that summary judgment is no more accessible for ordinary Canadians, and that fairness and justice are not being preserved. I provide recommendations for alternate methods to address the accessibility problem. PubDate: 2022-03-22
Authors:Terry Skolnik Pages: 631 - 631 Abstract: Few of the criminal justice system’s problems are new. Indigenous and racialized persons continue to be over-represented in the criminal justice system. Pretrial detention rates have increased significantly during the past 30 years. The criminal law is still used to regulate social problems — poverty, homelessness, and substance use — that it cannot fix. Although law reform happens with some frequency, these underlying problems persist. This article advances a transformative agenda for criminal justice reform. It argues that law reform fails to address three mutually reinforcing features of the criminal justice system that exacerbate its persisting problems. First, reform efforts accord insufficient importance to rehabilitation and reintegration. Second, reform initiatives do not address the growth of police powers that lack adequate transparency and oversight. Third, existing reforms ignore how the justice system increasingly allocates power towards prosecutors and the police, while removing that power from judges. This article’s core argument is that the criminal justice system must be completely transformed in order to address its underlying issues. It contends that meaningful criminal justice reform must take place across four dimensions: (1) substantive criminal law reform; (2) sentencing reform; (3) criminal procedure reform; and (4) institutional reform. It concludes by providing an agenda for criminal justice reform, which includes a set of concrete proposals in each of these four dimensions. Ultimately, this article shows why transformative law reform is necessary to treat individuals with greater dignity, foster rehabilitation and reintegration, and combat the criminal justice system’s worst tendencies. PubDate: 2022-03-22
Authors:Macy Mirsane Pages: 669 - 669 Abstract: In administrating their judicial functions, courts can resort to different devices. One of these devices is the appointment of an amicus curiae or a friend of the court. There have been many debates on the origins of this institution and even its definition due to its evolving nature. In this article, the author will consider what this nature is and whether judicial systems are prepared to appreciate this evolution or departure from the amici’s origins. The author is of the opinion that, at least in Canada, the judicial system is required to be careful in expanding the roles of amici and to appoint them in exceptional cases where their appointment is necessary for advancing the administration of judicial functions. In Alberta in particular, some cases are more prone to the amicus’ appointments but still the courts are cautious about determining their roles. The author concludes that in Canadian judicial systems, amici generally contribute to furthering the administration of justice in an orderly and fair manner. PubDate: 2022-03-22
Authors:Jonathan Avey , Bryton M.P. Moen Pages: 701 - 701 Abstract: The test for both exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (Charter) and whether a sentencing judge may divert from a joint sentencing recommendation is ostensibly the same: whether the admission of evidence or imposing the proposed sentence “would bring the administration of justice into disrepute.” Despite this, jurisprudence illustrates a vast divergence in what constitutes disrepute: the onerous standard applied to divert from a joint sentencing submission is all but absent when exclusion of evidence is considered under the Charter. This article addresses this disparate treatment in two parts. First, we argue that courts have consistently misapplied section 24(2) since the Supreme Court of Canada’s decision in R. v. Grant, as determinations of evidence’s admissibility under this section have focused almost exclusively on the factors articulated to guide the analysis, rather than the ultimate question to be determined. Moreover, courts have interpreted the phrase “bring the administration of justice into disrepute” differently depending on context — a trend that ought not to continue. We posit that the disrepute standard ought to be interpreted and applied consistently, with the recognition that “bringing the administration of justice into disrepute” is an exceptionally high bar. Second, we hope to provoke a broader reliance on the generous remedial powers conferred in section 24(1) of the Charter. This shift — which the Supreme Court has hinted at in recent decisions — would significantly change the adjudication of constitutional issues in criminal proceedings. We hope that the framework we propose for interpreting section 24 will stimulate attention to the practical benefits of eschewing a one-size-fits-all approach to Charter remedies and instead adopting a principled method that responds to each case’s individual circumstances. PubDate: 2022-03-22
Authors:Anthony Sangiuliano Pages: 725 - 725 Abstract: This article examines Canada’s position on the debate among comparative administrative law theorists about whether a court should apply the principle of proportionality to adjudicate allegations that an administrative agency has unjustifiably infringed human rights. On first impression, it would appear that decades ago, the Supreme Court of Canada affirmed the use of proportionality on judicial review of administrative decisions that allegedly limit rights that are explicitly protected under the Canadian Charter of Rights and Freedoms. It would then appear to be an open question whether or not the Supreme Court should “unify” Canadian public law by extending proportionality to cases where it is alleged that a decision has negatively impacted individual interests that do not enjoy constitutional protection. I argue that this framing of the debate from a Canadian perspective wrongly assumes that, by applying proportionality to adjudicate alleged infringements of Charter rights, the Supreme Court has applied it to all cases where an administrative decision has allegedly infringed human rights. In reality, the Supreme Court has applied proportionality only to cases where a person seeks a constitutional remedy for a violation of her Charter rights, not to cases where a person seeks an administrative law remedy traditionally available at common law for a negative impact on her human rights that are protected at common law. I argue that only more recent Supreme Court decisions can be interpreted as “unifying” Canadian public law by applying proportionality where a person seeks a common law remedy. Moreover, these conclusions suggest that the older legal doctrines the Supreme Court has developed applying proportionality where a person seeks a constitutional remedy should be substantially reformed. PubDate: 2022-03-22
Authors:Anastasia Konina Pages: 753 - 753 Abstract: Canada’s largest banks rely on private developers of regulatory technology (RegTech) to comply with the requirements of the Office of the Superintendent of Financial Institutions (OSFI). RegTech’s algorithms allow banks to organize unstructured data, identify, assess and mitigate risk, and generate and submit reports. While the use of RegTech significantly facilitates financial reporting and compliance, it also presents risks. The unsupervised process of translating the language of regulations into computer code may lead to the misinterpretations of regulatory requirements. Also, due to the opacity of private algorithms, mistakes of RegTech instruments may go unnoticed, resulting in systemic failures. In light of these risks, this article examines the potential of Canada’s federally regulated banks to act as delegated regulators of RegTech. Drawing on OSFI’s previous initiatives, this article suggests that the regulator create RegTech quality standards and delegate the enforcement of these standards to banks through outsourcing contracts. These contracts should contain publicly mandated RegTech specifications and clauses that reserve the banks’ rights to monitor, audit, and punish non-compliant RegTech companies and share information with OSFI. This article also discusses the benefits and policy implications of delegated regulation of RegTech. First, by imposing a public duty on the banks, delegated regulation causes changes in corporate governance. Second, it allows the under-resourced regulator to use banks as regulatory resources. Third, it extends the application of public norms to those RegTech companies that otherwise would have avoided public oversight. Fourth, it reshapes the market for RegTech services by forcing banks to develop in-house technology that, in the long term, may be a cheaper and less risky alternative to outsourcing. In conclusion, this article addresses the arguments that may be levelled against the delegated regulation of RegTech and discusses opportunities for more direct involvement of the regulator in technology-driven reporting and compliance. PubDate: 2022-03-22
Authors:Richard Albert Pages: 777 - 777 Abstract: If there is a better book on the challenges of constitutional change in Canada, I have yet to see it. Emmett Macfarlane’s masterwork on the constitutional politics of Senate renewal — Constitutional Pariah: Reference re Senate Reform and the Future of Parliament — exposes the great paradox of constitutional reform in Canada: the Canadian Constitution is today virtually unamendable, but it evolves constantly in both its form and content.1 Here is the puzzle: how can our constitution be simultaneously frozen and ever-changing' This outstanding book illustrates the complex and fascinating dynamics behind an essential feature of Canadian constitutionalism: the political reality of constitutional change without constitutional amendment. In this review essay prepared at the invitation of the Alberta Law Review, I identify several of Macfarlane’s major contributions in this book and then situate the importance of his study to our understanding of the Canadian Constitution and the theory of constitutional amendment. What results, I hope, is not only a strong endorsement of this excellent book but moreover an invitation to law and political science scholars in Canada to join the theoretically rich discussion of real-time practical relevance that Macfarlane has initiated to the enormous benefit of the field of public law. PubDate: 2022-03-22
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