Blog Round-up December 2021

A round-up of blog posts from the Manitoba legal community from December 2021.

Clarke Immigration Law
MLT Aikins

In a world already exhausted by the unrelenting pandemic, the holiday season offers the promise of a reprieve for some. Unfortunately, the holiday season is also a time when cyber criminals are particularly active as most people try to unplug and take some well-deserved breaks from work.

Having endured over a year now of government-imposed restrictions on personal liberty to curb the case count of covid, the general population is now able to better understand the implications of confinement. This blog will begin by exploring the historical reasoning behind solitary confinement, its effectiveness and psychological impact, and circle back to the current state of Covid-19 and what it entails for inmates who have already been deprived of many rights.

TDS law

Blog Round-up November 2021

A round-up of blog posts from the Manitoba legal community in November 2021

Clarke Immigration Law
Matthew Gould Blog (Criminal Law)
MLT Aikins
Pitblado Law Blog
  • Pitblado wins at the Supreme Court November 29, 2021 – “The Supreme Court rules that an employment discrimination dispute involving a unionized worker should be settled by a labour arbitrator appointed under the collective agreement, not by a human rights adjudicator.”
TDS law
  • Top 10 Employment Law Basics December 3, 2021
  • Misgendering Employees Can Result In Damages Against Employers November 23, 2021 – “Two recent decisions of Human Rights Tribunals in Ontario (EN v Gallagher’s Bar and Lounge, 2021 HRTO 240) and British Columbia (Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137) highlight the importance of employers respecting the preferred pronouns of their employees, and the potential consequences should an employer fail to show such respect.”

Legal Blog Roundup September/October

A bi-monthly round-up of blog posts from the Manitoba legal community for the months of September and October 2021

Clarke Immigration Law

Matthew Gould Blog (Criminal Law)

MLT Aikins

Pitblado Law Blog

Robson Crim Legal Blog

TDS law

Journal Updates

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
  • Our Culture, Our Heritage, Our Values: Whose Culture, Whose Heritage, Whose Values? 36 No. 2 Can. J.L. & Soc’y 203 Lori G. Beaman

“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
  • Marge ou Crève 36 No. 2 Can. J.L. & Soc’y 225 Xavier Delgrange
  • 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 is based 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

New Journal Issues Update

A full list of new issues from popular journals provided below. For a PDF copy of any of these articles, email us at library@lawsociety.mb.ca.

Journal of Parliamentary and Political Law

  • Crimes Against D/democracy 15 J. Parliamentary & Pol. L. 461 Gregory Tardi
  • Canada’s Judicial Appointment Process le Processus des Nominations à la Magistrature au Canada 15 J. Parliamentary & Pol. L. 465 Roger Bilodeau,
  • Is the British North America Act, 1916 Still on the Books? The Balfour Declaration, Constitutional Amendments and Statute Law Revision Acts 15 J. Parliamentary & Pol. L. 471 Thomson Irvine
    • “The British North America Act, 1916 was a highly significant statute in its time. Enacted in the middle of the Great War by the British Parliament at the request of the Parliament of Canada, it extended the life of the twelfth Parliament of Canada by one year, deferring the federal general election from 1916 to 1917.1 That deferral contributed to the Conscription Crisis of 1917, which shattered national unity on linguistic lines. The BNA Act, 1916 also set the precedent for s. 4(2) of the Canadian Charter of Rights and Freedoms*472 which allows for the extension of the term of the House of Commons or a provincial legislative assembly during war, invasion or insurrection.2 The BNA Act, 1916 was a major piece of constitutional legislation.Yet the BNA Act, 1916 is not included in the list of statutes which make up the Constitution of Canada”
  • The Promise of R. v. Sharma: An Opportunity to Constitutionalize the Principle of Restraint as a Principle of Fundamental Justice 15 J. Parliamentary & Pol. L. 505 Michael A. Crystal
  • The Justiciability of the Right to Free Basic Education Conundrum in Nigeria, South Africa and India: From Obstacle to Miracle 15 J. Parliamentary & Pol. L. 525 Emmanuel Olugbenga Akingbehin
  • The Antagonistic Style of Judicial Review in Bangladesh: A Good Candidate for the Dialogic Model? 15 J. Parliamentary & Pol. L. 549 M. Jashim Ali Chowdhury
  • Viruses and Votes: Elections During COVID-1915 J. Parliamentary & Pol. L. 575 Matthew LeBlanc
  • The Canadian Approach to Inmate Voting Rights 15 J. Parliamentary & Pol. L. 585 Kimvy Ngo
  • (Mis)Direct Democracy: Social Constraints and Legal Solutions for Referenda Concerning Electoral Reform in Canada 15 J. Parliamentary & Pol. L. 595 Kassandra Neranjan
  • The “Democratic Deficit” of the European Union: Fact or Fiction? 15 J. Parliamentary & Pol. L. 607 Liam Brunton
  • Can a Senator Be Suspended without Pay? The Duffy Case 15 J. Parliamentary & Pol. L. 623 B. Thomas Hall
  • Canadian Refugee Lawyers Association (CARL) v. Canada: Legal Challenge to COVID-19 Direct Back Policy for Refugee Claimants 15 J. Parliamentary & Pol. L. 637 Arghavan Gerami, Stéfanie Morris
  • Notable Case Law Concerning Legislative Bodies and Their Members 15 J. Parliamentary & Pol. L. 645 Melanie J. Mortensen
  • Book Reviews
    • Review of: Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy by George Pavlakos, ed. (Portland, Ore.: Hart Publishing, 2007) 15 J. Parliamentary & Pol. L. 663 Megan Ma
    • Review of: Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms by Hamish Stewart (Toronto: Irwin Law, 2020) 15 J. Parliamentary & Pol. L. 671 Michael A. Crystal , Peter Ketcheson

Intellectual Property Journal

  • The Perplexities of Patent Prosecution History: Procedure over Principle? 33 I.P.J. 225  David Vaver
  • Assessing Trademark Distinctiveness: Comment on Section 32(1)(b) of the Trademarks Act  33 I.P.J. 241  Daniel R. Bereskin, C.M., Q.C.
  • AI and Patents: Finding Harmony between Protection of Intellectual Property Rights and Innovation  33 I.P.J. 253  Anna Morrish
  • Assessing the Governance of Wearable Technology in the Changing Privacy Regulatory Framework  33 I.P.J. 279  Summer Lewis
  • The Right to Be Forgotten in Canada 33 I.P.J. 303  Elif Babaoglu
    “Even though a vast majority of Canadians currently express that they are concerned with losing control of their personal information, Canadian law does not provide individuals with a right to be forgotten to remedy this issue. Accordingly, Canadian data protection laws should be reformulated to encompass and implement a law similar to the right to be forgotten to provide data subjects with more robust protections for their fundamental rights and freedoms.”

Insolvency Institute of Canada Articles

  • This is an Intervention: Reflections on the Interventions Brought by the Insolvency Institute of Canada between 2013-2020 I.I.C. Art. Vol. 10-15
  • Is Canada a Beacon of Co-operation in International Insolvency Proceedings? Recent Developments Under Part IV of the CCAA (Articles) I.I.C. Art. Vol. 10-7
  • Guiding Principles for Distressed M&A Transactions: Choosing the Right Path and the Future of POAs and RVOs I.I.C. Art. Vol. 10-5
  • Reverse Vesting Transactions: An Innovative Solution to Restructure Insolvent Cannabis Companies  I.I.C. Art. Vol. 10-10
  • The Use of Pierringer Releases in CCAA Restructuring Plans: A Bicycle for a Fish? I.I.C. Art. Vol. 10-13
  • ”Come a Little Bit Closer”: Convergence and its Limits in Canadian Restructuring Law I.I.C. Art. Vol. 10-1
  • The Art of Marshalling: The Good, the Bad, and the Potential I.I.C. Art. Vol. 10-11 “The equitable doctrine of marshalling is seldom in the forefront of judicial discussion and appears infrequently in case law; however when it is raised, it gives reason for pause. Marshalling recently came to the writers’ notice as being worthy of closer attention as a result of the Manitoba Court of Appeal’s decision in Wolfe et al. v. Taylor. The Manitoba Court of Appeal’s decision to decline to apply the doctrine was based primarily on the “single common debtor rule.” The appeal court’s refusal to give effect to the doctrine of marshalling forms the impetus for this paper, which re-examines the numerous and technical rules governing the applicability of the doctrine, and how the doctrine has not been applied flexibly. The authors then advocate for a more flexible approach to be taken (“it’s time to start”), and explore how marshalling may be used within an insolvency proceeding to achieve the desired flexibility.”
  • Measuring Up: Improving Analysis of Outcomes in CCAA Cases I.I.C. Art. Vol. 10-8
  • Creditor Protection and Litigation Funding Arrangements in the Wake of Bluberi I.I.C. Art. Vol. 10-4
  • The Cost of Doing Business: Issues Regarding Priority for Environmental Reclamation Costs and Lessons from the Yukon Zinc Receivership I.I.C. Art. Vol. 10-12
  • How Safe is the Harbour: Eligible Financial Contracts and the Bellatrix CCAA Proceedings I.I.C. Art. Vol. 10-6
  • The Use of Third-Party Releases in Canadian Restructuring Proceedings I.I.C. Art. Vol. 10-14
  • Where’s the Plan? The Declining Role of CCAA Plans in the Canadian Restructuring Landscape, and When They Still May be Needed I.I.C. Art. Vol. 10-16
  • Consent is Key: Constituting Pledges of Cash in Québec I.I.C. Art. Vol. 10-2
  • Recent Developments in CBCA Plans of Arrangement — Finding the Balance Between a Facilitative and a Functional Process I.I.C. Art. Vol. 10-9
  • Court Officers as Litigants, or What Happens When Restructuring Professionals Step into the Ring I.I.C. Art. Vol. 10-3

Education and Law Journal

  • Classrooms in Crisis: Workplace Violence and Harassment Experienced by Educators in Ontario  30 Educ. & L.J. 149  Jennifer Del Riccio
  • In the Crosshairs: The Precarious Status of Academic Freedom in the United States and Australia 30 Educ. & L.J. 197  Paul Babie, Charles J. Russo
  • The Status of Youth under the Civil Code of Quebec 30 Educ. & L.J. 173  Ned Lecic, Marvin A. Zuker
  • Remote Learning During the COVID-19 Pandemic and the Interpretation of Collective Agreements 30 Educ. & L.J. 219  Natasha Abraham
  • Reaffirming Deference to Joint Submissions on Penalty 30 Educ. & L.J. 225  Parmbir Gill
  • Good Intentions Are Not Good Enough: Sexual Misconduct Policies Do Not Guarantee Reasonable Outcomes for Students 30 Educ. & L.J. 231  Emily Home “Since 2016, post-secondary institutions in Ontario have been required to have a sexual violence policy that outlines how they address complaints and incidents of sexual violence. However, the legislature has not dictated the contents of that policy, merely that a policy must exist. There have been numerous high-profile news stories across the country that demonstrate many universities are still struggling with the balance to be struck between protecting students from sexual misconduct, punishing students who engage in sexual misconduct, and maintaining procedural fairness and integrity. Doe v. the University of Windsor is another demonstration of the fact that the mere existence of a sexual violence policy is not sufficient to guarantee a reasonable outcome. Universities must ensure that investigators and decision-makers are trained in handling such matters, in order to avoid unreasonable outcomes such as the one addressed by the Divisional Court in this case.”

Canadian Criminal Law Review

  • The Reasonableness of Regulatory Searches: Saying Goodbye to the Criminal-Regulatory Binary 26 Can. Crim. L. Rev. 77  Steven Penney
  • The Rule of Law: The Role of the Various Participants in a National Security Context 26 Can. Crim. L. Rev. 29  George G. Dolhai
  • Fault, Causation and Absolute Liability in Criminal Code s. 320.14 26 Can. Crim. L. Rev. 1  Ami Kotler “As a matter of legal theory, however, the amendments raise difficult questions about the status of liability. As the law has recognized for many years, driving covers a continuum of risky behaviours, some of which are allowed, some of which are appropriately covered by regulatory offences and some of which are truly criminal. Any of these can cause a collision that results in death or bodily harm. By failing to connect the accused’s driving to his or her intoxication, do the new sections allow absolute liability–that is, liability in the absence of fault concerning the death/bodily harm element of the offence? If not, what is the fault component attached to that element? What is its threshold? These may prove hard questions to answer, particularly where an accused causes death or bodily harm while driving unremarkably notwithstanding his or her impairment.”
  • Book Reviews
    • A Guide to Mental Disorder Law in Canadian Criminal Justice (Michael Davies, Anita Szigeti, Meaghan McMahon and Jill R. Presser, LexisNexis: 2020) 26 Can. Crim. L. Rev. 109
    • Meaghan McMahon and Jill R. Presser, LexisNexis: 2020) 26 Can. Crim. L. Rev. 109  Justice Patrice F. Band
    • Oxford: Hart Publishing: 2018. Pp. xxxv, 275) Canadian Criminal Law Review  26 Can. Crim. L. Rev. 117  Barry Sullivan
    • Detention of Terrorism Suspects: Political Discourse and Fragmented Practices (Maureen Duffy, Oxford: Hart Publishing: 2018. Pp. xxxv, 275) 26 Can. Crim. L. Rev. 117 Barry Sullivan

Canada-United States Law Journal

  • Welcome & Opening Of The 2020 Cusli Symposium  145 Can.-U.S. L.J. 1Stephen J. Petras, Jr., The Honorable James J. Blanchard, Chios Carmody, Speakers
  • Keynote Presentation–Harmful Algal Blooms In The Great Lakes Basin: A Binational Sub-Federal Approach?  145 Can.-U.S. L.J. 5Dr. Kathryn Bryk Friedman, Dr. Irena F. Creed, Speakers
  • Government Regulatory Panel 145 Can.-U.S. L.J. 13Stephen J. Petras, Jr., Katrina Kessler, Karen Stainbrook, Dr. Madeline Magee, Michael Alexander, Chitra Gowda, Tricia Mitchell, Dr. Lucinda Johnson, Moderator, Speakers
  • Academic & Ngo Panel  145 Can.-U.S. L.J. 30Stephen J. Petras, Jr., Todd Brennan, Dr. Diane Dupont, Howard Learner, Moderator, Speakers
  • Question & Answer Period  145 Can.-U.S. L.J. 40Stephen J. Petras, Jr., Moderator
  • Conclusion By The Authors  145 Can.-U.S. L.J. 48Dr. Kathryn Bryk Friedman, Dr. Irena F. Creed, Speakers
  • Canada-U.S. Law Institute Special Webinar On The 2020 U.S. Election–The 2020 U.S. Election: Implications For Canada  145 Can.-U.S. L.J. 52Dr. Christopher Sands, Chios Carmody, Speakers
  • Welcome & Opening Of The 2020 Cusli Experts’ Meeting  145 Can.-U.S. L.J. 71Stephen J. Petras, Jr., Dr. Christopher Sands, The Honorable Jane Harman, Speakers
  • Keynote Address–The United States And Canada: Outlook For Bilateral Relations In 2021  145 Can.-U.S. L.J. 75Ambassador Kirsten Hillman, The Honorable Jane Harman, Moderator
  • Panel Discussion–Predictions For The Bilateral Relationship  145 Can.-U.S. L.J. 81Diane Francis, Lauren Gardner, Alexander Panetta, Moderator, Speakers