How Can You Contest A Blood Alcohol Test? October 14, 2021 “For years, police had to have a reasonable suspicion that a driver was under the influence before they could mandate them to take a breathalyzer test. What amounted to reasonable suspicion was variable. An officer might pull someone over if they saw them leave a bar and start driving, if their driving was erratic, or for any other number of reasons. In Manitoba, this is no longer the case: officers can administer mandatory breathalyzer tests without reasonable suspicion. That complicates one of the more common defences against DUIs.”
How Does Sandbagging Work in M&A Deals? October 7, 2021 “While both the federal and provincial governments have encouraged private sector employers to impose vaccination policies, it is not mandatory at this time. Employers are responsible for determining the appropriate balance in their workplace between health and safety considerations and the human rights and privacy interests of their employees.”
Critiquing Predictive Policing – Mikal Sokolowski “…predictive policing is considered a divisive controversial policing method, even considering the purported benefits that it offers. Although predictive policing has not been fully adopted in Canada, it has seen rapid adoption in the United States over the last ten years, which is understandable considering the benefits that predictive policing potentially offers. These benefits include predicting when, where, and who will be involved in crimes based on empirical data. Moreover, the reduction in crime rates once predictive policing has been implemented are staggering. However, there are several concerns with the adoption of predictive policing, including that it is generally operated by third parties. This reality means the police may not understand how to properly interpret the data and the data may not be subject to public scrutiny.”
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.
Main Entrance Reopens for Use, Barrier-Free Access to the Site Now Complete: Friesen, Squires
“Renovations to ensure the physical accessibility of the Winnipeg Law Courts Building at 408 York Ave. are now complete and the main entrance has reopened to the public, Justice Minister Cameron Friesen and Families Minister Rochelle Squires, minister responsible for accessibility, announced today.”
Lawyers and the public can now use the main entrance located at 408 York Avenue. The new entrance provides better accessibility, signage, and improved security screening areas. Please note that current COVID-19 protocols limit access to Manitoba court buildings to those dealing with court matters.
“The Federal Court of Appeal and Federal Court are unique among Canada’s courts because they are itinerant — they hear cases in all parts of Canada — as well as being bilingual and bijural. This book was prepared for the celebration of the fiftieth anniversary of the Federal Courts in 2021. Seventy-eight current and retired judges and prothonotaries on the two courts were interviewed and are referred to throughout the book. The authors present a brief history of these courts and their predecessor — the Exchequer Court of Canada — and an overview of the courts’ jurisdiction, decision-making trends, and unique attributes. There are chapters on each of the courts’ specialties — administrative law, immigration and refugee law, intellectual property, security and intelligence, Indigenous issues, the environment, admiralty, labour and human rights, and tax. Chief Justice Noël and Chief Justice Crampton each contribute a chapter. The preface is by Justice Frank Iacobucci and the epilogue by Justice Robert Décary.”
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