The latest issues of these journals are out and available for members. PDF copies of these articles are available upon request following copyright fair use guidelines. Contact us at library@lawsociety.mb.ca for more information.
Education and Law Journal
Annual Review of Education Law 30 Educ. & L.J. 237
Manitoba Law Journal (also available on CanLII.org)
Preface & Issue Overview “Ultra Vires and Void:” an Executive Inquiry Takes on Manitoba’s Legislative Building Crisis (And Wins) 44 Man. L.J. 185 Tom Mitchell
Triaging and Mediating to Meet the Needs of Families under the Family Dispute Resolution (Pilot Project) Act of Manitoba 44 Man. L.J. 1 Stefanie Goldberg
Bad Law: Rethinking Justice for a Postcolonial Canada 44 Man. L.J. 299 Justice Gerald Jewers
A Deposit in a Pre-Incorporation Transaction Is Still a Deposit: A Comment on Benedetto v 2453912 Ontario Inc 44 Man. L.J. 225 Darcy L. MacPherson
High Time for Change: Combatting the Black Market for Cannabis in Canada 44 Man. L.J. 257 Nick Noonan
Readability in the Canadian Tax System 44 Man. L.J. 63 Colin Jackson
The Premier Should Not Also Be the Attorney General: Roncarelli v Duplessis Revisited as a Cautionary Tale in Legal Ethics and Professionalism 44 Man. L.J. 155 Andrew Flavelle Martin
The Duty of Legislative Counsel as Guardians of the Statute Book: Sui Generis or a Professional Duty of Lawyers? 44 Man. L.J. 116 Andrew Flavelle Martin
The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible? 44 Man. L.J. 33 Frances E. Chapman, Georgette M. Lemieux
Fitness to Stand Trial and Dementia: Considering Changes to Assessment to Meet Demographic Need 44 Man. L.J. 177 Shauna Sawich, Hygiea Casiano
Fundamentally Flawed: The Arbitrariness of the Corporal Punishment Defence 44 Man. L.J. 87 Mark Carter
The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena 44 Man. L.J. 136 Robert H. Tanha
The Constitutionality of Excluding Duress as a Defence to Murder 44 Man. L.J. 111 Colton Fehr
The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence 44 Man. L.J. 1 Isabel Grant
Shattered: The Historic and Continued Breaching of Indigenous Persons Right to Reasonable and Timely Bail 44 Man. L.J. 170 Sean Gallop
Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials 44 Man. L.J. 48 Brandon Trask, Evan Podaima
The latest issues of these journals are out and available for members. PDF copies of these articles are available upon request following copyright fair use guidelines. Contact us at library@lawsociety.mb.ca for more information.
Estates Trusts & Pensions Journal
From the Law Reports
Identity and Cy-prés: Galloway Estate v. B.C. SPCA – A comment Donavan Waters
Calmusky v. Calmusky: A Novel Application of the Presumption of Resulting Trust or an Outlier? Lisa Filgiano
No Accounting Ordered for Inter Vivos Gifts by Competent Testator: Duhn Estate Nora Christianson Fien
Nova Scotia (Attorney General) v. Lawen Estate: A Case Comment Jane Thomson
Sherman Estate v. Donovan: When is Privacy a Publicly Protectable Interest? David Young
Postscript from Québec Marilyn Piccini Roy
From the Legislature
Acknowledging Acknowledgments: Another Option? Ian Lebane
Articles
Exploring the Limits of an Attorney for Property’s Authority Under the Substitute Decisions Act, 1992 Melanie Yach
Canadian Family Law Quarterly
Tax Efficient Solutions to Division of Corporate Property: Can The Court Order A Corporate Reorganization? 40 C.F.L.Q. 49 Scott Booth
Ontario’s Family Law Limited Scope Services Project: Rhetoric and Realities of the Family Bar Addressing Access to Justice Challenges 40 C.F.L.Q. 1 Rachel Birnbaum; Nicholas Bala
Focused Hearings 40 C.F.L.Q. 87 Justice Stanley Sherr
Retroactive Support After Colucci 40 C.F.L.Q. 61 Rollie Thompson
National Journal of Constitutional Law
A Question of Law: (Formal) Declarations of Invalidity and the Doctrine of Stare Decisis 42 Nat’l J. Const. L. 1 Alexandre Marcotte
The Effect of Declarations of Unconstitutionality in Canada 42 Nat’l J. Const. L. 25 Paul Daly, Jeremy Opolsky, Jake Babad, Julie Lowenstein
La Temporalité des Jugements D’Inconstitutionnalité des Lois au Canada: Ce que L’on Dit Être Leur Rétroactivité 42 Nat’l J. Const. L. 63 Danielle Pinard
McGill Law Journal
Domestic Contracts and Family Law Exceptionalism: An Historical Perspective 66 McGill L.J. 303 Luke Taylor
Religious Challenges to Anti-Discrimination Law: The Mobilization of the “Minority Label” 66 McGill L.J. 377 Léa Brière-Godbout, Marie-Andrée Plante
Creative and Responsive Advocacy for Reconciliation: The Application of Gladue Principles in Administrative Lawl 66 McGill L.J. 337 Andrew Flavelle Martin
L’indépendance du Québec et le Choix Autochtone de la Continuité Canadienne 66 McGill L.J. 253 Ghislain Otis, Aurélie Laurent
It’s that time of the year again – time to nominate your favourite legal blog, podcast, newsletter, or whatever! I can’t believe this has been going on for 16 years – where does the time go??
Nothing fancy about the name of the Gardiner Roberts Litigation Blog – it is literally “Blog”, but don’t let that fool you. The content is substantive and well written, thoughtful legal analysis of recent cases in Ontario. Partners Stephen Thiele and James Cook have been publishing for a couple of years. Wish I had their ability to entice readers with their witty titles.
First Peoples Law hits the legal information trifecta: a blog, podcast AND a newsletter. I have been reading the newsletter (delivered every Sunday) for a few years and rely on it for authoritative national Indigenous content. More in-depth treatment is found on their blog.
For sheer entertainment value (at least to me), I have to include Above the Law‘s Thinking like a Lawyer podcast. The current “cast” of Joe Patrice, Kathryn Rubino and Chris Williams usually have me laughing at some point, either during “small talk” or wondering how Joe’s going to work in his latest ad read. Of course there are also serious topics discussed and, if you’re a Canadian lawyer, you are free to compare your bonuses to a top 100 U.S. law firm.
I look forward to other people’s nominations to add to my legal information sources!
Available online to Member’s through vLex, this collection of 8 titles from Irwin Law, the Young Advocate Series is meant to be a bridge between law school and real-world practice,
“The series derives from the Advocacy Club. Based in Ottawa, the Advocacy Club trains junior advocates to conduct interviews, and to prepare for and conduct examinations. In the process, they learn collegiality, civility, and modern techniques that help to make them professionals. A word about what these handbooks are not and what they are. The handbooks are not comprehensive re-placements for legal education; they do not contain legal citations or war stories from real or imagined victories in a glorious past. They do contain a great many tips and techniques that permit the thoughtful junior lawyer to develop and advance skills essential to the profession.”
The Art of the Interview: How Lawyers Talk with Clients – “Good interviews lead to a deeper understanding of both a client’s problems and possible solutions. Conducting successful interviews, however, requires knowing what questions to ask and how to ask them. In this handbook, author John Hollander provides techniques; tricks-of-the-trade; and a series of exercises on conducting interviews, witness preparation, examinations, cross-examinations, and submissions.”
Case Analysis: The Critical Path to Persuasion – “How do lawyers get from the initial interview to a structured closing argument? Cases emerge in fits and starts — a fact here, a document there — and most of what lawyers learn about a case has no bearing on the outcome. How can lawyers begin to separate the wheat from the chaff? Case analysis, as outlined in this handbook, will teach you how to convert preparation into persuasion. Armed with case analysis, lawyers can plan and implement effective examinations, openings, and closings: start with the idea, then present the key facts in a manner that convinces — this is the critical path to persuasion.”
The Civil Courtroom: Professionalism to Build Rapport – “Demonstrating professionalism is one of the most important courtroom skills for civil litigators. A collateral benefit of this skill is learning to establish rapport with the people in the courtroom, including decision makers, opposing counsel, clients, and witnesses. This book will help lawyers recognize and evaluate their courtroom skills, and develop the techniques to improve these skills. Professionalism—both how lawyers act and how they relate to others—should be the ultimate goal of this development.”
Discovery Techniques: A Practical Guide to the Discovery Process in Civil Actions – “The discovery process is an opportunity for litigators to better serve their clients. This handbook examines various issues that arise during the discovery process; focuses the reader on questions and topics that allow improvement in performance; and offers examples and exercises that demonstrate best practices, common errors, and methods to deal with difficult situations.”
Examinations in Civil Trials: The Formula for Success – “The rough and tumble of examinations — direct, cross, redirect — is the heart of this handbook, which offers up a wealth of practical techniques and advice for the novice litigator. For more experienced counsel, it can offer alternatives to practices developed over years. Maintaining a plainspoken style throughout, Examinations in Civil Trials presents a sophisticated and comprehensive approach to conducting examinations in court, and before administrative tribunals. Nearly every section wraps up with a case study — a fact situation drawn from the courtroom that sets up an exercise — and a “solution” clearly showing how an advocate might tackle the exercise with aplomb.”
Expert Witnesses in Civil Litigation: A Practical Guide – “Expert witnesses can be the lifeblood of a lawyer’s case. This handbook applies recent pronouncements of the courts to the involvement of experts in civil litigation. It presents practical tips and techniques for lawyers with respect to the participation of experts from initial retainer, instruction, and report, to preparing experts to testify, leading experts’ evidence at trial, and cross-examination. In each chapter, the handbook uses court cases as examples of the points under discussion. Readers can see how case analysis applies to the role of experts in these cases.”
Legal Writing: Mastering Clarity and Persuasion – “What should a lawyer think about before putting pen to paper? How should lawyers organize their documents? What makes them persuasive? This handbook provides examples and exercises to guide the reader through the process of learning how to communicate persuasively. The chapters deal with such overarching topics as legal writing as a case of project management, general principles of legal writing, and specific good and bad habits.”
Mediation for Civil Litigators: Issues and Solutions – “Mediation presents a number of issues that confront the practitioner moving through the legal process, and this handbook guides the practitioner along that path. Law school rarely provides rigorous training in negotiation skills, yet the art of negotiation is central to the mediation process, the purpose of which is to facilitate settlement. Offering perspectives from several mediators, this handbook provides numerous commentaries and opinions about different aspects of mediation, as well as practical tips for successful negotiation and management of the mediation process.”
New articles from the Canadian Journal of Law and Society and Criminal Law Quarterly are now available for Law Society members upon request. For a pdf copy of these, or other legal journal articles email us at library@lawsociety.mb.ca.
Canadian Journal of Law and Society
Introduction 36 No. 2 Can. J.L. & Soc’y 189 Dia Dabby, David Koussens
“This article reflects on the question of how culture and religion enter legal cases and public debates about the place of majoritarian religious symbols in diverse societies that have some democratic will to inclusion. In the context of the new diversity, the article considers how the articulation of “our culture and heritage” as a strategy for preserving “formerly” religious symbols and practices in public spaces excludes particular groups from the narrative of who “we” are as a nation. The reader is invited to consider how challenges to such symbols and practices might be articulated as a challenge to privilege and power and that a refusal to acknowledge those power relations puts the reputation of democracy and human rights at risk.”
Formalizing Secularism as a Regime of Restrictions and Protections: The Case of Quebec (Canada) and Geneva (Switzerland) 36 No. 2 Can. J.L. & Soc’y 283 Amélie Barras
Voting on Belonging 36 No. 2 Can. J.L. & Soc’y 263 Dia Dabby , Assistant Professor, Département des sciences juridiques, UQAM, Dabby.dia@uqam.ca
Introduction 36 No. 2 Can. J.L. & Soc’y 195 Dia Dabby, David Koussens
L’État Canadien et la Reconnaissance des Droits Religieux Autochtones 36 No. 2 Can. J.L. & Soc’y 245 Claude Gélinas
La Loi sur la Laïcité de L’État et les Conditions de la Fondation Juridique D’Un Modèle Interculturel au Québec 36 No. 2 Can. J.L. & Soc’y 323 Louis-Philippe Lampron
L’Effacement de la Laïcité Libérale en France. De la Séparation du Politique et du Religieux vers la Promotion du ⪡ Vivre-Ensemble ⪢ 36 No. 2 Can. J.L. & Soc’y 303
Convergence Culturelle et Légistique: Pour un Modèle Québécois D’Intégration Distinct Consacré par une Loi-Cadre 36 No. 2 Can. J.L. & Soc’y 339 Guillaume Rousseau
Criminal Law Quarterly
No More Extensions of Criminal Law Through Injunctions? Policing Blockades 69 C.L.Q. 402 Kent W. Roach
The Objectivity of Proof Beyond a Reasonable Doubt 69 C.L.Q. 513 Gerald T.G. Seniuk
“The thesis postulated here explains how the vague standard of “proof beyond a reasonable doubt” can be understood as an objective standard of proof even though the decision isbased on a subjective feeling of certitude. In the main, the objective nature of the reasonable doubt standard of proof can only be discerned as patterns emerge over time through the decisions made by individual judges in different cases. Most guilty verdicts depend on the trier’s strong subjective feeling of certitude about the guilt of the accused, a subjective certitude that is much closer to absolute certainty than it is to a probability, but still short of absolute certainty. This subjective feeling of certitude is constrained from slipping into arbitrariness or whimsy by the legal requirements that the verdict is correct in law, is reasonable, and is supported by the evidence. However, even with those constraints, there is room for uncertainty and disagreement. What elevates the subjective feeling of certitude to the level of objective proof is the agreement of a defined group of reasonable, informed people. In other words, the objectivity of proof beyond a reasonable doubt is a socially constructed objectivity that is defined by a methodology of agreement. This methodology of agreement is similar to what sociologists refer to as an objectivation and epistemologists as objectification.”
Requiem for a Representative Jury? So Long Peremptory Challenge and Hello Expanded Judicial Stand By 69 C.L.Q. 436 Brian Manarin
Notes and Comments R. v. Griffith and R. v. Leonard : A Dangerous Assumption in Recent Right to Counsel Cases Criminal Law Quarterly 2021 69 C.L.Q. 404 Kent W. Roach
Notes and Comments Revisiting the Air of Reality Test Within the Context of the Defence of Provocation: A Case Comment on the Court of Appeal for Ontario’s Decision in R. v. Alas Criminal Law Quarterly 2021 69 C.L.Q. 411 Kent W. Roach
Jury Selection Is Not Random Selection: A Methodological Critique of R. v. Kokopenace and a Recommended Solution 69 C.L.Q. 464 Michelle I. Bertrand, David Ireland and Richard Jochelson
September 30, 2021 marked the first National Day for Truth and Reconciliation. The federal government called on Canadians to don orange shirts bearing the message Every Child Matters and to reflect on the impacts of Canada’s residential school system.
One day earlier, the Federal Court issued its decision in Canada v. First Nations Child and Family Caring Society dismissing the federal government’s latest effort to avoid paying compensation for its chronic underfunding of child and families services on reserve.
The Court’s decision highlights the gap between Canada’s public commitments to Indigenous Peoples and its failure to carry out the hard work that reconciliation requires.
What it is about
For decades, First Nations have fought for increased funding to support Indigenous children and families living on reserve.
In 2007, two Indigenous-led organizations filed a complaint with the Canadian Human Rights Commission alleging that Canada’s failure to properly fund the delivery of child and family services to First Nations on reserve violated the Canadian Human Rights Act.
In 2016, the Canadian Human Rights Tribunal found First Nations children and families were denied equal access to child and family services due to Canada’s failure to adequately fund services on reserve.
Over the next 5 years, the Tribunal issued a series of decisions setting out how affected First Nations children and families would be compensated for Canada’s discriminatory treatment. Canada brought an application for judicial review at Federal Court challenging the Tribunal’s decisions.
What the Court said
The Federal Court dismissed Canada’s application and reaffirmed that the federal government must compensate First Nations for its failure to provide adequate funding for the delivery of child and family services on reserve.
Justice Favel, writing for the Court, went on to reflect on the concept of reconciliation, which he described as part of an ongoing process of “nation-building” based on the foundational, evolving relationship between the Crown and Indigenous Peoples.
Drawing on both Supreme Court decisions and the words of Pitikwahanapiwin (Chief Poundmaker), Justice Favel concluded that when viewed in the context of nation-building, a shared commitment to reconciliation has the potential to “remedy unprecedented discrimination” and lead to the “re-establishment, on a proper foundation, of broken or damaged relationships between Indigenous people and Canada.”
Why it is important
Last summer, the Tk’emlúps te Secwépemc announced they had located the remains of hundreds of children who attended the former Kamloops Indian Residential School. Since then, the unmarked graves of thousands more children have been identified. In the wake of these announcements, the federal government finally acknowledged that Canada’s treatment of Indigenous children amounted to genocide, and established September 30 as a national day to honour survivors of residential schools.
Critically, the Truth and Reconciliation Commission of Canada placed child welfare, including the provision of adequate resources to enable First Nations to keep Indigenous families together in safe, culturally appropriate environments, first among its 94 Calls to Action.
It is within this context that Canada sought to avoid its obligations to pay compensation for failing to adequately fund the delivery of much-needed services to children and families living on reserves.
The Federal Court’s decision is an important vindication for First Nations and Indigenous organizations who have spent decades fighting for better funding for health and family services for Indigenous children and families. It also underscores the connection between Canada’s treatment of Indigenous children at residential schools, and the ongoing discrimination that continues to exist in the child welfare system.
Looking ahead
Canada as a country is founded on the state’s systematic destruction of Indigenous families and cultures.
If we are to move beyond this legacy, the federal government must do more than issue apologies and call on the public to honour the memory of children who have been lost. As Tk’emlúps te Secwépemc Kukpi7 (Chief) Rosanne Casimir recently advised the Prime Minister, “we are not interested in apologies that don’t lead to institutional and widespread change.”
As a first step, Canada must fulfil its legal – and moral – obligations to Indigenous children in Canada today, including by compensating First Nations who have suffered as a result of Canada’s underfunding of Indigenous child and family services, and providing accessible, properly funded services to First Nations on reserve in accordance with the TRC’s Calls to Action.
At a time when the concept of ‘reconciliation’ has increasingly become hollow, the federal government would also do well to take the recent Federal Court decision to heart. As Justice Favel’s words remind us, reconciliation need not be a matter of empty rhetoric – it can be an important, positive part of rebuilding the flawed foundation on which Canada was established.
As always, it will be the federal government’s choice whether to continue on its current path or to take new steps to repair both the past and present-day impacts of colonization on Indigenous children and families.
Canada has 30 days from the date of the Federal Court’s decision to apply for leave to appeal.
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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