Crown prosecutors and government lawyers are reliant on governments for their funding but exert no meaningful influence or control over such funding decisions. Nonetheless, this article demonstrates that as a question of law, under-funded Crown prosecutors and government lawyers risk violating their professional duties. If so, they must promptly inform the government, refuse new matters and, if necessary, withdraw from existing matters. If the government purports to block such refusal or withdrawal and does not provide adequate funding, resignation will become necessary. While law societies will likely not prioritize disciplinary action against such lawyers, the policy reasons to forego such proceedings do not mean that the legal answer is wrong and should or will change. This discordance with practical reality demonstrates that legal ethics generally – and the rules of professional conduct more specifically – do not adequately appreciate the practice settings of government lawyers and Crown prosecutors. Nonetheless, any changes to the legal framework governing all lawyers should be considered carefully as they would have major implications for the regulation of the legal profession.
An ongoing problem of federal prisons in Canada continues to be deaths in custody. While prison suicides (i.e., dying by unnatural causes) and aging in prison (i.e., dying by natural causes) remain significant challenges, the legalization and introduction of medical assistance in dying (MAiD) raises policy and operational challenges for federally sentenced and/or terminally ill prisoners. Correctional Service of Canada (CSC) policy now allows for an external provider to end the life of a prisoner, contingent upon exceptional circumstances. Beyond the optics of enabling or facilitating inmate deaths via state agency, there are greater moral, ethical and practical considerations that must be discussed. This article explores the state and challenges of carrying out MAiD in relation to penitentiary settings. As the findings suggest, the arrival of MAiD has prompted an expansion of ideas of what constitutes fostering life or marking for death, and the relationship between the pair.
Ever since the pivotal judgement in R v Friesen was given by the Supreme Court of Canada, courts around the country have continued to grapple with its legacy. Recently, the Manitoba Court of Appeal adopted the spirit of Friesen in its recent ruling, R v Bunn, and held that the principles espoused within Friesen should not be limited solely to cases of sexual assault involving children. Building on this principle, the Manitoba Court of Appeal provided non-quantitative guidance citing society’s and the courts’ deepened understanding of harm as a justification to call for increased sentences for sexual assault involving adult victims. This paper analyzes this approach by the Manitoba Court of Appeal through theoretical, practical, and hypothetical lenses. It determines that the MBCA’s approach is underpinned by Durkheimian functionalism and bolsters the courts’ role in upholding societal values, enhances proportionality in sexual assault sentencing, and has hypothetical application as a general rule for raising, or lowering, sentences for offences through non-quantitative guidance.
The Manitoba Law Journal is committed to preserving the voices of distinguished jurists from this province. In that context, we are honoured to present this issue. It includes reflections on his retirement by the Honourable Chief Justice Richard Chartier.
While government lawyers face legal ethics issues unique to that practice context, those issues are overlooked in the rules of professional conduct in all but one Canadian jurisdiction: Nunavut. In this comment, I canvass several provisions that are unique to the Code of Professional Conduct of the Law Society of Nunavut. These provisions are inexplicably overlooked in the Canadian legal ethics literature to date. I then assess how these provisions address the legal ethics issues unique to government lawyering. Finally, I argue that the Nunavut provisions should be considered a starting point and I consider additional changes that could be made to further recognize the realities of government lawyering.
Substandard prison health care in Canada has long been the subject of research, debate, and policy analysis. For nearly forty years, Senator Kim Pate and her associates have uncovered myriad human rights abuses occurring inside Canadian prisons and have urged governments to take action. The extent to which this substandard health care specifically impacts the reproductive freedom of incarcerated women has yet to be the subject of meaningful academic consideration. It has been argued by many that the conditions of Canadian prisons engage the Charter of Rights and Freedoms. This paper, in its limited scope, conceives of reproductive freedom as encapsulated by the section 7 Charter right to life, liberty, and security of the person. It is a novel analysis of how each of these three constitutional rights might be engaged by the current state of reproductive health care in prison.
Lawyer mobility has been recognized as an important but not determinative consideration in legal ethics, particularly when it comes to conflicts of interest. Mobility poses particular issues for counsel to a tribunal. Those counsel may well at some point leave that position and pursue other opportunities. Prospective opportunities may sometimes involve appearing as counsel for a party before the same tribunal – especially where the tribunal operates in a highly specialized area of law. Can a lawyer appear before a tribunal if they were previously counsel to that tribunal? This discrete issue, though it rarely arises in the case law, presents unique considerations for analysis at the intersection of administrative law and legal ethics. In this comment, I analyze and critique the reasons of the Canadian International Trade Tribunal in Certain Container Chassis for declining to remove such a lawyer from a matter before it. I reconceptualize the Tribunal’s analysis into two separate questions and then add a third question. I conclude that, aside from confidentiality issues, a context- dependant analysis is preferable to an absolute rule.
This is the first issue of a new dimension to the Manitoba Law Journal. We are referring to this new dimension as “The Review of Enterprise and Trade Law” (or TRETL, for short). It is hoped that TRETL will present an opportunity for further collaboration between the Asper Chair in International Business and Trade Law, and the Desautels Centre for Private Enterprise and the Law, and our various partners, both within and outside the University of Manitoba.
Disputes over legal jurisdiction in Canada predate its own Constitution. Even after the 1982 repatriation of the Constitution, First Nations governance remains entangled in a jurisdictional divide. In the spirit of Indigenous self-determination, this article argues the impracticality of First Nations regulating themselves according to federal employment standards under the Canada Labour Code in preference of provincial or territorial standards. A review of jurisprudence since NIL/TU,O underscores the inconsistency of trial division and appellate courts across Canada in determining the appropriate jurisdiction for employment-law issues in First Nations communities. This incoherence leaves First Nations communities in a precarious position in regulating employment. An employer’s ability to consistently depend on the provincial and territorial regimes is imperative given the innumerable barriers already facing First Nations communities, particularly in an area of law where federal regulation is increasingly convoluted, demonstrated for example, by the judgment of the Supreme Court of Canada in Wilson. Counter-intuitive as it may seem, the otherwise far more generous federal employment standards have the effect of eroding the autonomy necessary for First Nations’ self-determination.
Mr. Big operations (“MBOs”) are a Canadian invention, a version of which dates back over 120 years, with its modern use beginning in the 1990s. However, it was not until 2014, with the Hart decision, that the Supreme Court of Canada found occasion to subject MBOs to regulation. The question this paper endeavours to undertake is whether the court’s new analytical framework, which treats MBO confessions as presumptively inadmissible, has affected the scripting of MBOs – or if there remains a proliferation of the same basic plot points across multiple scenarios. In analyzing the 14 cases in which the MBO took place post-Hart, four of which in-depth – Buckley, Dauphinais, Rockey, and Caissie – the author concludes that Hart has had no meaningful impact on MBO scripting, apart from superficial changes regarding the criminality of the fictional organization the suspect is recruited into, and the level of direct violence utilized. The coercive, manipulative tactics used by MBOs which can induce false confessions remain embedded within the technique. MBOs by their very nature remain problematic, and Hart’s legal tinkering has not defused their potential for wrongful convictions and abuse of process. However, despite the merits of MBO abolition, this is unlikely to occur anytime soon. As such, the author proposes several interim MBO reforms: (1) greater external oversight; (2) re-invigorating the abuse of process analysis; and (3) treating MBOs as akin to in-person interrogations.
A significant dimension of modern crime management focuses on property, wealth, money, and financial activity. The organizing theme of late twentieth-century products such as anti-money laundering laws, criminal confiscation, criminal forfeiture, and civil forfeiture is detecting and capturing wealth associated with criminal activity. Such products, which have proliferated since the inception of modern management in the late 1980s, might be described as criminal wealth law. An area of acute contemporary interest, a trilogy of recent developments, might be said to mark a certain sharpening of the edges of Canadian criminal wealth law. The first, a Supreme Court of Canada decision involving the theft of maple syrup, hones federal criminal forfeiture machinery, the principal anti-criminal wealth device. The second, a British Columbia Court of Appeal decision about clubhouses owned by the Hells Angels, sharpens a provincial criminal wealth device, civil forfeiture law. The third, arguably the most substantively significant of the trilogy, introduces a new tool to a province’s wealth-focused toolkit, an unexplained wealth order regime. This essay examines this trilogy of contributions to criminal wealth law.
This paper reviews the legislative history and application of the Criminal Code’s definition of terrorist activity to trace how the “motive clause” reinforces systemic racism within Canada’s criminal justice system. By outlining this process, this paper argues that the motive clause contributes to a dynamic that racializes terror offences as a specific type of criminal offence committed by racialized individuals—marking terrorism as a unique social characteristic of racialized communities. This occurs mainly due to the legislative requirement to prosecute the ideas of accused persons, which, in practice, has increased the likelihood of courts admitting otherwise prejudicial evidence against the accused and the problematic ways in which expert evidence has (or has not) been used in terrorism trials. Although discrimination may not be an inevitable or intended outcome of the drafted legislation, it creates a framework that encourages discriminatory prosecutorial strategies, facilitates bias in the admission and treatment of some evidence, and potentially contributes to the exclusive use of the provisions against racialized communities specifically.
Should the consequences for judicial misconduct be different depending solely on the identity of the person who makes a complaint? In a surprising decision, the Ontario Court of Appeal in Lauzon v Ontario (Justices of the Peace Review Council) holds that dispositions downstream from complaints by Crown attorneys (or any other member of the executive branch of government) should be lower than other dispositions because the vindication of such complaints is inherently dangerous to judicial independence and the separation of powers. In this comment, I look closely at the reasoning in Lauzon and respectfully suggest that that reasoning is problematic. In particular, I note that judicial councils operate independently and that Crown attorneys are subject to high standards as identified both by courts and by law societies as their professional regulators. I also suggest that the identification of this novel proposition was unnecessary to decide the appeal.
During the 1930’s there were at least two other hangmen who were regularly hired in some provinces, as sheriffs turned away from the troublesome Arthur Ellis/Alexander Armstrong English. We have noted how Sam Edwards/Smith was active, and we turn now to a hangman calling himself Camille Branchaud, who had a much longer career than Sam Edwards/Smith who died in 1939. Branchaud also outlived John Ellis/Moore, who was the hangman for most of English Canada in the 1940’s. While Ellis/Moore was the official hangman in Ontario in the 1940’s and was hired by other provinces, Branchaud did attempt to compete with him. For example, we have archival evidence that he advertised his services to the Sheriff of Edmonton in 1944 attempting to get the hanging jobs that Ellis/Moore had in that province.
A unique survey of Manitoba legal practitioners’ views on the greatest access to justice needs of Manitobans, we bring experiential data to the question of how to facilitate access to justice for Manitobans. This is truly unique, first-hand, Manitoba-focussed research and we can think of no better place to publish than the Manitoba Law Journal.
