Authors:Amy Swiffen Abstract: The Karen McCarthy and Lorna Jackson-Littlewolfe v. Whitefish Lake First Nation #128 case develops doctrine in two related areas in Aboriginal law. One area is the nature of the relationship between Aboriginal governments and the Canadian Charter of Rights and Freedoms, including the relevance of the question of the source of self-government authority (delegated, constitutional, or inherency) to the application of the Charter. The second area of development flows from the first. It relates to the application of section 25 — specifically, what categories of rights are included in the protection of section 25 and the parameters of its “shielding” function in the context of a challenge to an internal restriction by a member of a self-governing First Nation. The development of doctrine in this area is needed. However, there are concerns about how the courts are moving to apply section 32(1) to Indigenous governments from the perspective of constitutional reconciliation. This concern corresponds to further issues regarding the application of section 25 and the question of the relationship between the Charter and Indigenous jurisdiction more generally. This comment explores these issues in the context of the case. PubDate: 2024-04-30 DOI: 10.29173/alr2783
Authors:Erin Nelson Pages: 517 - 517 Abstract: Current Alberta law does not adequately respond to violations of health information privacy. While privacy is an ill-defined concept in general, there is no uncertainty as to the importance of privacy in relation to personal health information. The increasing use of electronic means to generate and store health information creates an urgent demand for legal regimes that protect the privacy of health information, and that provide mechanisms to facilitate accountability when privacy is infringed. This author explores health information management, Alberta’s current legal landscape in relation to personal information protection, and methods to enhance accountability that can and should be implemented in Alberta. PubDate: 2024-04-30 DOI: 10.29173/alr2772
Authors:R. McKay White Pages: 549 - 549 Abstract: Research in intimate partner violence (IPV) has established that economic abuse, including economic exploitation, is an important form of IPV that is often used to trap victims in an abusive relationship. Though victims of all types of IPV encounter particular barriers to accessing justice, there are particular issues for those victimized by economic exploitation. This article explains the prevalence and consequences of economic exploitation and explores the indicators that victims lack access to justice. It proposes the primary obstacles victims of economic exploitation encounter and urges specific actions to assist lawyers, judges, and legislators in recognizing economic exploitation in intimate partner relationships and promoting appropriate remedies. This is particularly important for women, which data analysis indicates are at greater risk for this type of abuse. PubDate: 2024-04-30 DOI: 10.29173/alr2773
Authors:Travis Huckell, Fernando Angulo-Ruiz, Arlan Delisle, Max Skudra, Jean-Paul Gladu Pages: 567 - 567 Abstract: The present study takes up the challenge of the Truth and Reconciliation Commission Report Call to Action 27 to provide “appropriate cultural competency training” for lawyers dealing with Indigenous persons. Specifically, we look at how private Indigenous business owners take up private law forms of business organization, namely: sole proprietorship, partnership, and corporation. We use survey data from representative samples of Indigenous entrepreneurs in Canada in 2010 and 2015, and we also employ the report of the 2020 Ontario Aboriginal Business Survey developed by the Canadian Council for Aboriginal Business. Findings reveal that Indigenous entrepreneurs’ higher education levels, business training and experience, as well as the age and size of the business positively influence the selection of the corporation legal form of business. Business location on a reserve has a positive influence on the selection of sole proprietorship or partnership forms. These conclusions, based on empirical evidence, answer a need identified in the study of Indigenous business enterprises and allow legal practitioners to understand the reasons why private Indigenous entrepreneurs prefer one form of legal business organization over others. PubDate: 2024-04-30 DOI: 10.29173/alr2774
Authors:Michaël Lessard, Marie-Andrée Plante Pages: 591 - 591 Abstract: Are animals mere things in the eyes of the law' Public discourse suggests so. However, the history of legal discourses about animals reveals another story. For better or for worse, animals have not been considered as mere things in law. It was long recognized that animals possess certain characteristics that are observable in beings, such as agency, sentience, and sociability. Together, agency, sentience, and sociability constitute a cluster of being-like characteristics sketching, through time, a portrait of the animal that is distanced from the image of a mere object of property. To support this conclusion, we ask where the “wild things” are and have been in our legal history. We relocate animals in the history of legal discourses surrounding them in the territory of Quebec, beginning slightly before codification. As many individuals worldwide would like to see their own jurisdiction explicitly recognize that animals are not things but beings, Quebec provides a fruitful case study for international readers on the impact that such a change may have on legal norms and discourses. PubDate: 2024-04-30 DOI: 10.29173/alr2775
Authors:James Collie Pages: 637 - 637 Abstract: The Canadian Charter of Rights and Freedoms has a significant impact on rights discourses in Canada. Section 25 of the Charter protects Aboriginal rights from infringements of the rights and freedoms endorsed elsewhere in the Charter. Section 25 also protects and codifies rights created by the Royal Proclamation of 1763. Despite this inclusion, Royal Proclamation rights have remained relatively undefined in the history of the Crown- Indigenous relationship. In this article, I investigate the content of Proclamation-based Aboriginal rights protected by section 25 by focusing on the Proclamation, the legislative development of section 25, and recent jurisprudence of section 25. I then take these insights and apply them to two recent Aboriginal rights cases: Rice v. Agence du revenu du Québec and Restoule v. Canada. In doing so, I problematize the argument of section 25 as a savings provision and argue that there is a disconnect created by section 25, as the legislative intent of these rights was for their content to be determined at a later date, and yet, they never were determined. Accordingly, if the settled interpretation of the Proclamation were to become unsettled, there could be an expansion of Aboriginal rights within Canada. PubDate: 2024-04-30 DOI: 10.29173/alr2776
Authors:Nicole Spadotto Pages: 671 - 671 Abstract: The only approach to statutory interpretation in Canada is Driedger’s Modern Principle, which instructs a court to harmoniously interpret the text, context, and purpose when determining the meaning of a statute. While the Modern Principle provides a valid starting point for statutory interpretation, it has been critiqued as failing to provide a coherent methodology. The question, therefore, turns to methodology and what a harmonious interpretation might mean. Recently, various authors across the fields of both ordinary statutory interpretation and constitutional interpretation have pointed to a new methodological approach coming from the Supreme Court of Canada, where the text holds interpretive weight such that highly abstract purposes do not outweigh text. The Supreme Court has called this approach “purposive textualism” and some academics have called it the “New Canadian Textualism.” The author explores the extent to which purposive textualism is compatible with Quebec’s codified civil law. Quebec is the only Canadian province to codify its law of general application, or jus commune, which invites the question of whether methods of statutory interpretation born from the common law or constitutional context are compatible with codal interpretation. Through an exploration of the mixed nature of Quebec civil law, history of statutory interpretation in the province, and the textual boundaries in Quebec’s codes, the author concludes that purposive textualism can be compatible with codal interpretation — particularly if the methodology accounts for the way a codal provision is drafted, which might cue the interpreter to look to its spirit. PubDate: 2024-04-30 DOI: 10.29173/alr2778
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