This article reports on an original empirical study of the quantitative readability of a large corpus of Canadian court and tribunal decisions. Specifically, the article uses a new law-specific readability formula that is designed to predict how well readers of different education levels will understand an adjudicative decision to compute readability scores for 1,621 discrete decision and opinion files, containing over 9.3 million words of text, from cases that were decided in 2022. The results are coded based on author name, author gender, jurisdiction, legal subject area, opinion type, word count, and other variables-and are made publicly available. Although the article highlights and discusses some of the more noteworthy results, its true value lies in its potential as a resource for others. Future researchers can query the results reported within this article for their own purposes to answer their own research questions, based on the variables that are of most interest to them. Similarly, authors of adjudicative decisions whose scores are reported in this study can find and contemplate their scores to assess whether they are satisfied with the readability levels of their decisions. And, other judges or tribunal members can search the results to identify highly readable decisions that might serve as inspiration to these judges in their future decisions.
This article is concerned with the judicial interpretation of the pollution exclusion clause (PEC) commonly found in commercial general liability insurance policies. The PEC removes from coverage claims arising out of the insureds' discharge of pollutants. Conflicting expectations about the scope of such exclusion has resulted infrequent litigation between insurers and policyholders. Insurers often rely on the PEC to deny coverage for claims arising out of workplace accidents that incidentally involve chemical discharges. By contrast, policyholders submit that the PEC should be interpreted more narrowly in light of the purpose and commercial context of the policy. Canadian case law is unsettled. The lack of a uniform interpretive approach creates legal uncertainty, which compromises the insureds' or policyholder's ability to determine the likelihood of a claim being paid and prevents the parties to a coverage dispute from predicting the outcome of the litigation process. This article identifies the sources of the legal uncertainty surrounding the interpretation of the PEC and proposes an interpretation that promotes greater clarity and coherence in the interpretation process. Its main thesis is twofold. First, it argues that the interpretive constructs used by courts are conceptually flawed and incapable of determining the applicability of the PEC in a coherent andpredictable manner. Second, it argues that greater coherence and predictability can be attained by recognizing the fortuity-based rationale underlying the PEC. The target of the PEC is the fortuity-frustrating behaviours by the insureds, who subjectively mean to bring about the pollution-related loss. In light of this premise, the PEC should be interpreted as removing from coverage the pollution-related losses that are expected or intended from the standpoint of the insured. This is the only way to interpret the PEC that promotes its underlying purpose and is consistent with the principles of insurance policy interpretation established by the Supreme Court of Canada.
Canadas' Emergencies Act was first invoked in February 2022. This paper evaluates the Emergencies Act and investigates the problems of legitimacy resulting from the executives' use of emergency powers. It concludes that, although serious challenges remain, the Emergencies Act regime represents an inevitable compromise between constraints which would foster legitimacy and the rapid, centralized decision-making required during a crisis. However, the legitimacy of emergency action would be strengthened by the imposition of a strict standard of judicial review by the courts or Parliament. First, the paper reviews the literature on emergency powers. Second, the paper discusses the historical background to the Emergencies Act, including martial law and the notorious War Measures Act. Third, the paperprovides an overview of the structure andpassage of the Emergencies Act. Fourth, the paper summarizes the 2022 Public Order Emergency. Finally, the paper assesses the Emergencies Act and proposes a framework for the judicial review of emergency action, commenting on the decision of the Federal Court of Canada in Canadian Frontline Nurses v Canada (Attorney General).
The Supreme Court of Canada concluded in R v Ndhlovu that a federal sex offender registry requiring all sex offenders be included therein deprived these offenders of liberty in a manner that violated the principle of fundamental justice prohibiting overbroad laws. In so concluding, the Court did not opine upon whether mandatory sex offender registry orders constitute p"unishment" for constitutional purposes. I contend that the prior sex offender registries ought to have so qualified given their "serious", "onerous", and "considerable" impact on liberty, their mandatory nature, and overbroad impact on numerous offenders. Adopting a punishment-based framework for sex offender registries would have two important consequences: first, the broader objectives inherent to punishment analysis would shelter the sex offender registry laws from scrutiny for overbreadth; and second, the denunciatory and deterrent benefits inherent to such a framework would avoid any finding that the sex offender registries constitute "cruel and unusual" punishment. While any retroactive application would infringe section 11(i) of the Charter, narrow clauses excluding low-end offenders can be crafted in a way that would survive constitutional scrutiny. Parliaments' recent reply to Ndhlovu following the adoption of Bill S-12 should therefore be assessed in light of the option to adopt a punishment-based framework that would have continued to make sex offender registry orders mandatory.
In the following article, authors Buhler and MacLean discuss the results of their research study designed to investigate whether gender is a factor in formal evictions in Saskatchewan. By analyzing documented tenant names and public eviction data, the study identifies a clear gendered dynamic in formal eviction processes and demonstrates both higher rates of eviction and increased severity of eviction orders for women than men in Saskatchewan in 2021. The disproportionate rates of eviction in the study confirm the results of existing research that gender has an impact on eviction levels. The authors argue that the feminization of poverty, childcare obligations, the gender of hearing officers, and gender-based power dynamics between landlords and tenants may influence such results. While the need for more research on the intersectionality of gendered eviction is highlighted, the study recognizes that while women generally face higher rates of eviction, all tenants facing eviction face deep inequities and challenges. The authors call on policymakers to improve access to justice and provide a genderbased lens in eviction prevention measures and policies, including training hearing officers on gender dynamics.
In a sample of 220 police interviews, twenty-one percent of sexual assault complainants in Nova Scotia fourteen years of age or older were asked questions about their sexual history or other sexual activities. In the overwhelming majority ofthese cases, the questions had no bearing on the investigation, would be barred in a court proceeding, and were unnecessary, prejudicial intrusions into the dignity and privacy interests of these complainants. These questions also risked setting complainants, and the trial process, up for section 276 applications that would otherwise be highly unlikely to be brought, and virtually never granted. It is critical that the police be taught that a complainants' sexual history is as irrelevant to the vast majority of sexual offence investigations as it is to the investigation of any other crime. To render this part of the sexual assault legalprocess more effective and less discriminatory, investigating officers must genuinely accept that a thorough and complete investigation into an allegation of sexual assault never requires an investigation into a complainants' "sex life"generally and only requires them to ask about other specific sexual activity in a very narrow set of cases. This study demonstrates that, to date, this training has either not occurred, or, if it has, it has not been accepted by police.
This paper addresses the application ofDor & eacute; to judicial review post-Vavilov. Dor & eacute;places apremium on deference to the administrative decision-maker, noting both the expertise of the decision-maker and the fact that aproportionate balancing of rights andstatutory objectives under section 1 of the Canadian Charter of Rights and Freedoms (Charter) admits multiple acceptable outcomes. This contrasts with the binary y"es or no"standard of correctness. Pre-Vavilov Dor & eacute; jurisprudence leaves Dor & eacute; cases with a twostep analysis on judicial review, the first being to identify whether a Charter right or value is engaged (the "threshold question"), and the second being an analysis of whether the decision-maker appropriately balanced the Charter right with statutory objectives. The standard of review for the first stage is unclear in the jurisprudence. The two cases appear to have a different conception of administrative law. Despite this, the two are unified as being prime examples of the "culture of justification", a concept that has grown to define Canadian administrative law post-Vavilov. This conception brings the two in harmony and allows for the continued application of Dor & eacute;. However, the standard of review for discretionary, Charter-impacting decisions is unclear, despite five years of jurisprudence post-Vavilov. This paper argues that the standard should be bifurcated, such that the threshold question is reviewable under correctness and the proportionality analysis is reviewable under reasonableness. The threshold question has bright-line yes or no answers as to the Charters' applicability. In contrast, the proportionality analysis is a highly fact-specific analysis where review on the decision-makers'balancing process is sufficient. There is mixed support for the idea of bifurcation at all levels of court. This paper surveys the development of bifurcation jurisprudence at all court levels. In considering two recent Supreme Court of Canada decisions, it concludes that some aspects of bifurcation have been adopted in Canada, but it has yet to be fully endorsed. Dor & eacute; review and the future of bifurcation is still unclear and wanting for further jurisprudence.
The legal concept of "informed consent" to medical treatment is often confusing to students and lawyers alike. This is in part because there is no single legal concept of informed consent. In law, the term relates to two different legal obligations. One is the fundamental and general obligation not to touch people without their consent. The other is an obligation specific to health practitioners to provide their patients with relevant information. Using the term "informed consent" to refer to either is misleading because it suggests the need, within a single legal rule, for both information and permission. However, depending on which legal obligation is at issue, only information or permission is likely to be relevant. This article disentangles the meanings of informed consent to help people better understand the relevant law. But the issue is not only one of doctrinal clarity: there are potential and actual negative consequences of confusing the issues, and these are explored. Thus, while the term informed consent is likely to remain ingrained, it is important to understand which obligation is at issue in a given case so that the law can be applied and developed in a way that protects the relevant interests at stake.
One challenge of administrative law is explaining why public officials must abide by the duty of reasonableness, even when the statute purports to confer an absolute power to the administrative decision-maker. However, underlying this challenge is often an assumption that judicial review is a regulative practice that aims to constrain or control the administrative state through the imposition of duties. It is this assumption, however, that puts the practice of judicial review under scrutiny, and results in Parliament and the courts competing for supremacy, as it is unclear why unelected judges should be able to superimpose restraints on Parliaments' statutory design choices. This paper aims to challenge that assumption. Drawing on three foundational cases of administrative law (Roncarelli v Duplessis; I argue that judicial review is a power-conferring practice that makes possible administrative authority, rather than constrains it. I do so principally by arguing that reasonableness is not a duty but a powerconferring norm that produces the validity of exercises of administrative authority. While a duty often constrains our actions, power-conferring norms are facilitative in nature; they secure legal ways of acting in the world and provide for the valid exercise of that action. As a powerconferring norm, reasonableness generates rather than constrains administrative authority by making it legally possible for the administrator to act with genuine legal authority. Consequently, the aim of judicial review is not to control the administrative state but to facilitate it by securing the legality of Parliaments' statutory design schemes. On the power-conferring interpretation, therefore, the courts and Parliament do not compete for supremacy but collaborate to confer and constitute administrative authority. I explore several important consequences that flow from this argument in the article, including implications for the theoretical foundations of judicial review, the way in which administrative power is constituted, the separation of powers and the strength of parliamentary sovereignty.
Gender-diverse individuals are over-incarcerated and experience uniquely harsh conditions in prisons in comparison to cisgender individuals. This paper proposes using sentencing law as a tool to minimize these disparities, specifically through the use of individualized proportionality, to arrive at a fit and just sentence for the criminalized person. Specific ways in which gender-diverse individuals experience suffering in prisons include: placement in prisons that do not accord with gender identity; increased risk of physical, emotional, and sexual violence; the use of strip searches; increased use of solitary confinement under the guise of safety; and insufficient culturally competent, gender-affirming healthcare. These conditions of confinement of gender-diverse individuals should be considered in sentencing to conclude whether a custodial sentence is appropriate, and if so, for what period of time. This paper looks at case law in which gender identity is acknowledged as a circumstance of the criminalized person, and more recent case law that considers how the conditions of confinement will uniquely affect the gender-diverse individual before the court. A more consistent, proactive assessment of these conditions is appropriate and may reduce the suffering experienced by gender-diverse individuals at the hands of the carceral state.
Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrines' limited and arguably parochial interpretation has diverged from its understanding in other jurisdictions. Now, it appears to be at a crossroads. On the one hand, it can lay the foundation for robust climate litigation for years to come via common law, constitutional law, or even natural law interpretations. On the other hand, it could wither away into irrelevance as, even if it is recognized as part of Canadian law, it would be relegated to its historical origins as a property law doctrine that guarantees that natural resources can be accessed by the public-not a doctrine that obligates governments to protect natural resources for current and future generations. Arguably, the public trust doctrine sits alone as a potential tool to hold government and even corporate actors to account for their exceptional contributions to a warming planet. Currently, the tension in Canadian courts lies with how broadly to interpret the doctrine, particularly in light of past opinions that span from obiter comments in Canfor to the doctrines' recent rejection in La Rose. For an expansive public trust doctrine that could be applied in climate litigation, Canadian courts would construe governments as being responsible for the continued enjoyment of inherently public resources, including the air, atmosphere, forests, and all navigable waters. Pursuant to that understanding, the doctrine would serve as a cause of action for claims brought by individuals against governments as well as for claims brought by governments against arms-length corporations.
This paper examines the ways that victims of unlawful governmental interference with their fundamental rights and civil liberties went about redressing these intrusions before and after the Charters' advent. It is the authors' contention that a private law-informed approach to the determination of damages under the Charter will better serve the objects of vindication, compensation, and deterrence and will improve access to justice by making civil claims for Charter infringements economically reasonable to pursue. The authors' argument is divided into five parts: part one discusses Ward, the 2010 case that set out the object of and the test for recovery of Charter damages; part two discusses jurisprudential developments for Charter damages since Ward; part three discusses the access to justice implications of low awards in Charter damages cases; part four sets outa torts/private law-based framework for assessing damages in claims for damages under section 24(1) of the Charter; and part five puts forth a case as to why the authors' damages framework is not troubled by concerns for good governance or chilling effects. Parts one-three of the authors' argument highlight several inadequacies in the current state of the law of Charter damages, and parts four and five focus on how the author proposes to deal with said inadequacies. In order to remedy the shortcomings of the current state of the law of Charter damages, the author proposes that vindication-based damages be presumptive and be determined according to the severity of the Charter infringement, that the plaintiff be compensated for pecuniary and non-pecuniary losses flowing from the infringement, that there be no burden on the plaintiff to establish a systemic or ongoing problem in order to recover a deterrence-based award, and that punitive damages be awarded where they serve a useful purpose in litigation.
This article examines decision-making in Federal Court of Canada immigration law applications for stays of removal, focusing on how the rates at which stays are granted depend on which justice decides the case. The article deploys a form of computational natural language processing, using a large-language model machine learning process (GPT-3) to extract data from online Federal Court dockets. The article reviews patterns in outcomes in thousands of stay of removal applications identified through this process and reveals a wide range in stay grant rates across many justices. The article argues that the Federal Court should take measures to encourage more consistency in stay decision-making and cautions against relying heavily on stays of removal to ensure that deportation complies with constitutional procedural justice protections. The article is also a demonstration of how machine learning can be used to pursue empirical legal research projects that would have been cost prohibitive or technically challenging only a few years ago-and shows how technology that is increasingly used to enhance the power of the state at the expense of marginalized migrants can instead be used to scrutinize legal decision-making in the immigration law field, hopefully in ways that enhance the rights of migrants. The article also contributes to the broader field of computational legal research in Canada by making available to other non-commercial researchers the code used for the project, as well as a dataset of several thousand Federal Court dockets that can be used for future research.
Canada’s constitution is legal and political. The legal component, which includes the Constitution Acts, 1867 and 1982, is more easily recognized and appreciated by lawyers, politicians, and the wider public. However, Canada’s political constitution is equally important. The political constitution is comprised of the non-legal rules and norms that underpin Canadian democracy and governmental accountability. Although the legal and political constitutions each form an essential part of Canadian constitutionalism, the written quality of the former tends to ensure its dominance over the latter.This article argues that the time has come for Canada to codify its political constitution. In offering these arguments, we seek to move beyond the reasons scholars typically offer in favour of codifying the political aspects of the constitution, whether in a cabinet manual, ministerial code or other document. Calls to codify the political constitution have tended to intensify after events that raise questions about the application of a particular constitutional convention or conventions, or the propriety of the Prime Minister’s or another Minister’s actions. While this is understandable, viewing codification primarily as a solution to crisis and controversy falls short. Instead, we say that the process of committing the political constitution to writing would give political actors – parliamentarians, ministers, and senior parliamentary and government officials – an opportunity to reflect on the political rules and norms that govern Canada’s pluralistic, multinational federation at this point in its constitutional development. Our focus, then, is not on codification as a check on political actors, but as a vehicle to revitalize their roles and responsibilities as authors of the political constitution, an organic, evolving set of rules and norms that governs how our legislative and executive bodies operate. The argument we advance, therefore, is twofold. First, producing a guide to the political constitution would give political actors an opportunity to articulate and define the political constitution. A cooperatively drafted and regularly updated guide would signal that political actors are committed to upholding an ever-evolving political constitution and resolving disagreements without recourse to third parties. Second, the process of writing the political constitution could be leveraged to modernise the political rules of the constitution in a broad sense. Although core constitutional conventions, such as confidence and cabinet solidarity, are well established and generally well understood by practitioners and scholars, contemporary Canadian political constitutionalism could better reflect the demands of federalism and intergovernmental relations, Parliament’s responsibilities with respect to Indigenous peoples and the Charter, and the balance of power between the executive and the legislature in areas ranging from democratic accountability to foreign affairs.
Article 30 of the United Nations Declaration on the Rights of Indigenous Peoples articulates a general ban on military activities that take place on Indigenous territory. Despite the potentially significant consequences of article 30 for Canadian defence policy, few scholars have devoted serious attention to the article. This article will fill that gap by discussing the meaning of article 30 and suggesting approaches to implementation that the Canadian state ought to adopt. This article argues that, far from constraining Canadian defence strategy, article 30 may well serve as a catalyst, encouraging Canadian defence planners to take a more community-based approach towards defence, particularly in Canada's North.
The relationship between technology and criminal procedure is typically described as follows. Technological innovation outpaces case law, statutes, and regulations. As technology evolves, judicial decisions that regulate its use may become outdated. Lawmakers and regulators typically react too slowly to new investigative technologies. Police officers exploit these jurisprudential, legislative, and regulatory vacuums. Law enforcement may deploy new investigative technologies that lack adequate transparency and oversight mechanisms, and that impact individuals' fundamental rights. Individuals cannot challenge secretive investigative tactics that are unknown to them. But technology not only outpaces case law, legislation, and regulation; emerging technologies progressively weaken constitutional norms. This article argues that the cumulative effects of technological innovation and lax criminal procedure doctrines erode constitutional rights. It shows how two investigative strategies circumvent traditional constitutional protections: changing the normative quality of information gathering and changing the normative quality of information from private to public. To increase these strategies' effectiveness, officers use technology to leverage the criminal procedure doctrines of abandonment, waiver, and plain view searches-all of which weaken reasonable expectations of privacy. This article shows how the growth of these criminal procedure doctrines results in a one-way ratchet in criminal procedure, where the scope of police powers expands while the breadth of constitutional rights contracts or remains constant. It sets out how technology exacerbates this tendency. The concluding parts of this article elucidate why three emerging investigative technologiesautomated licence plate recognition, commercial DNA database searches, and facial recognition technology-risk eroding constitutional rights even further and must be regulated. It provides concrete proposals for how courts and lawmakers can safeguard individuals against these mass-surveillance technologies, and in doing so, restore the judiciary's role in protecting constitutional rights against state power.
When and why did Canada develop the legal powers to detain and deport immigrants? At the beginning of the twentieth century, Canada did have legal powers authorizing deportations, but the laws lay as inactive dead letters. After a significant American diplomatic effort to establish a continental immigration exclusion program, initially resisted by Canadian corporate and state actors, Canada activated immigration police powers in the summer of 1900. After extensive archival research, this legal history shows that the government endorsed immigration police powers when it appeared that Canada was the destination for thousands of Jewish Roumanian refugees and that the Americans planned to set up extensive border controls along the Canadian-American frontier. From there, Canada quickly developed and enhanced its immigration policing powers and laws to forestall American economic sanctions. This article considers how government, corporate interests, international law, and American interest combined to eventually lead to the passage of a 1902 law that firmly established Canada's right to arrest, detain, and deport undesirable immigrants.
This paper examines the theoretical and evidentiary challenges associated with interpreting the release of claims that are unknown to private parties at the time the release is executed. It has three objectives. First, the author examines the relevant case law concerning the judicial enforcement of releases of unknown claims. The author shows that courts regularly apply the doctrinal framework of objective contractual interpretation, while at the same time they state that the scope of the release is limited to the claims that are contemplated by the parties at the time of the execution of the release. The unclear relationship between objective intention and contemplation requirement is at the root of the legal uncertainty surrounding the determination of the scope of the release. Second, the author contends that the doctrinal framework of objective contractual interpretation confusingly characterizes the judicial task. When deciding whether unknown claims are included within the scope of broadly worded releases, courts do not engage in a genuine interpretive effort; rather, they engage in a gap-filling exercise. They determine how the risk of unanticipated claims should be allocated on the basis of what may reasonably be imposed on either the releasor or the releasee. Finally, the author proposes a default rule to provide guidance on the judicial allocation of the risk associated with unknown claims. The proposed rule consists of the three principles: (1) courts should presume that generally worded releases are objectively intended to release all claims that are discoverable with reasonable diligence by the parties at the time the release was executed; (2) the plaintiff-releasor advancing an unanticipated claim should bear the burden of proving that at the relevant time, they could not, with reasonable diligence, have acquired knowledge of the claim; (3) the plaintiff's knowledge of a claim is evidenced by their knowledge of the elements constituting a claim. The author contends that by adopting such proposed principles, Canadian courts will see an incremental improvement in both legal certainty and predictability in cases concerning the effect of general releases on unknown claims.
