On the breach: Identifying infringements of section 35 rights

Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.

THE REVISED CANADIAN TEST FOR THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED EVIDENCE

Although South African courts have relied on Canadian law to interpret section 35(5) of the Constitution, they have also been hesitant to do so, since the previous Canadian approach clearly had its shortcomings. The Canadian Supreme Court's decision in R v Grant has now addressed these problems by putting forward an approach that is less rigid and more simplistic to apply. The new test reflects properly the main motivation behind a constitutionally entrenched exclusionary rule and thereby provides a sound theoretical basis for the application of such a rule. Because their new approach has brought the South African and Canadian tests closer together, more stands to be gained from future Canadian decisions in this regard. Perhaps the most important aspect of the Grant decision is that it shows why it is unnecessary to treat the two legs of the South African rule as separate tests. There should in principle be only one test: namely whether the admission of unconstitutionally obtained evidence would be detrimental to the administration of justice.

Damage compensation for innocent defendants and Convicts in Iran and the Canadian legal system

In the field of innocent defendants and convicts' damage compensation who have endured further losses due to issue criminal supply contracts or orders execution, their innocence has been cleared by issuing acquittance sentences. It counted as one of the most challenging issues in private and criminal law. In these recent years, based on positive changes in the rules of Iran, a lot of works done for innocent defendants and convicts' damage compensation have endured different and unfair punishments. But no integration or constructive work has been done for guiltless convicts' damage compensation who have endured some parts or all their punishments, and their innocence has been proved but not predicted. The reverse of this matter is true in the Canadian law system. Only a guilty convict who has tolerated some or all parts of unfair punishment deserves to receive damage compensation. This study attempted to research the subject's international binding rules, and many practical strategies for guiltless convicts' damage compensation will be considered in both systems by a comparative study.

Maritime Certainty and International Cooperation in the Klondike and Alaska Gold Rushes, 1896-1903

At the end of the nineteenth century the Arctic was a region of potential conflict. A primary cause of conflict is uncertainty. In the Arctic and near Arctic during the Klondike and Nome rushes, a degree of certainty came from two key sources: predictable US shipping and widely-respected Canadian law enforcement. A common culture among many newcomers to the region played an important role but, drawing on Abraham Maslow’s well-known “hierarchy of needs” theory, this paper argues that generally reliable shipping and generally respected law enforcement laid the foundation for a culture of cooperation described in numerous gold rush memoirs. À la fin du 19e siècle, l’Arctique était une région de conflits potentiels. L’incertitude constitue l’une des principales causes des conflits. Dans l’Arctique et les régions voisines de l’Arctique pendant les ruées vers le Klondike et Nome, un certain degré de certitude provenait de deux sources clés : la prévisibilité du transport maritime américain et le grand respect accordé à l’application de la loi au Canada. Bien que la culture commune à bon nombre des nouveaux arrivants dans la région ait joué un grand rôle, l’auteur s’appuie sur la théorie bien connue de la « hiérarchie des besoins » d’Abraham Maslow pour soutenir qu’un transport généralement fiable et une application de la loi généralement respectée ont jeté les bases d’une culture de collaboration décrite dans plusieurs mémoires de la ruée vers l’or.

Law enforcement agencies’ approach to de-escalation: Incorporating a social services perspective

In this critical review and social innovation narrative, we analyze the literature regarding Canadian law enforcement agencies’ approach to de-escalation and crisis intervention. Using an interdisciplinary approach, we consider how the skills and values of social work can be used to inform and train officers on essential skills such as de-escalation and conflict resolution. We look at the systemic barriers to bringing about change within Canadian police forces as the current culture continues to be influenced by colonization and law enforcement continues to value and endorse use of force over de-escalation. While services can benefit by applying an interdisciplinary lens when training officers, the factors that impede this union and collaboration are discussed and explored as police services are given immense discretion in how they train and respond to mental health crises. In conclusion, we examine the government’s role in perpetuating these issues.

AN EXAMINATION OF SETTLER COLONIALISM IN CANADA’S LEGAL INSTITUTIONS: 1492 LAND BACK LANE

In this paper, I will investigate how Canadian legal institutions function to serve the interests of the settler colonial state in the dispossession of Indigenous peoples. This investigation will be facilitated through an examination of the court proceedings of 1492 Land Back Lane, a contemporary example whereby land defenders are being criminalized by Canadian courts for re-occupying their unceded land in Caledonia to protect it from a proposed housing development. Here we see an example of oppression, and therefore, it may be useful to utilize Sensoy & DiAngelo’s (2017) definition of oppression: namely, the prejudice and discrimination of one social group, in this case, settlers, against another, here Indigenous peoples, backed by legal authority and historical, social and institutional power (p. 84). Focusing on legal authority in this case, I seek to demonstrate ultimately how anti-Indigeneity is embedded within the Canadian legal system. In order to do this, I will begin by examining key historical legal documents, namely the Constitution of Canada and the Indian Act, with an eye to the settler colonial ideology of paternalism underlying them. Then, I will turn to the court proceedings of 1492 Land Back Lane, establishing their problematic and paternalistic nature, and grounding them within existing case law on Indigenous land rights, to demonstrate how Canadian courts can serve to perpetuate settler colonialism and land dispossession, often through the legal mechanism of injunction. Ultimately, I seek to demonstrate how the very concept of land back is incompatible with Canadian law.

Warrantless searches of a mobile phone’s digital contents and privacy interests in Hong Kong

This case note examines the latest development on the police’s power to search the digital contents of an arrested person’s mobile phone without a warrant in Sham Wing Kan v Commissioner of Police [2020] HKCA 186; [2020] 2 HKLRD 529. Two issues will be discussed. First, the Court of Appeal’s approach to American and Canadian law in this area will be critically analysed. Second, the safeguards proposed by the Court for a police officer’s warrantless search of the digital contents on a mobile phone will be evaluated. It argues that the Court’s erroneous interpretation of foreign law on the police’s power to search the digital contents on a mobile phone has contributed to the inadequacy of the safeguards proposed by the Court vis-à-vis an arrestee’s privacy rights under the Hong Kong Basic Law and the Hong Kong Bill of Rights.

Peddling promise? An analysis of private umbilical cord blood banking company websites in Canada

Private umbilical cord blood banking is growing around the world. A family’s decision to bank cord blood publicly or privately can be influenced by numerous sources including healthcare practitioners, personal networks, the popular press, social media and marketing discourse from private entities. Issues have been raised concerning how private banks market their services, particularly with regards to the likelihood of use and for what purposes cord blood can be used. The objective of this study was to analyze the marketing on the seven company websites offering private cord blood storage in Canada. We performed a mix of content and general qualitative analysis on the seven websites. Our analysis shows substantial hype around cord blood uses, amplifying the promise of speculative uses and distorting the likelihood of use. Findings show that this promotional messaging often deploys communication strategies which draw on testimonials and emotionally-charged narratives. Questions should be asked about whether the promissory aspects of these websites constitute breaches of Canadian law or regulation. Careful monitoring of the private cord blood space is important for ensuring that the Canadian public is adequately and accurately informed of the services being offered.