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Rendered in December 2019, the Vavilov decision sets the contemporary analytical framework for the judicial review of an administrative decision on the merits. On this occasion, the Supreme Court expressed the desire to add a certain degree of certainty and consistency to this field of law. This article focuses on the new approach’s propensity to achieve that goal. The analysis begins with the observation that there exists a connection between the instability that has historically characterized the law of judicial review and the failure of previous approaches to adequately guide reviewing courts in the fulfillment of their mission, which consists of balancing the rule of law and legislative supremacy. In light of earlier case law, the author concludes that the Vavilov decision offers the prospect of greater certainty in determining the applicable standard of review, but that the risk of instability remains with respect to the application of the reasonableness standard. Indeed, while the Supreme Court’s guidance in this regard generally reflects a concern to alleviate the tension underlying the relationship between rule of law and legislative supremacy principles, some of the majority justices’ assertions, namely that certain statutory provisions “relating to the scope of a decision maker’s authority” may involve only one interpretation, may weaken the self-discipline of reviewing courts on which judicial deference is based.

Is sexual assault: (1) sexual abuse; (2) a sexual affair; (3) a youthful indiscretion; (4) a deviance; or (5) none of the above? It is not always easy to navigate the issue of sexual violence. In a society marked by rape culture, unconscious biases can lead us to euphemize, romanticize, eroticize, excuse, and even encourage sexual violence. This article offers a linguistic perspective on sexual violence by examining the biases, stereotypes, and myths about rape that permeate legal discourse. We discuss terms that trivialize sexual violence, such as “sexual abuse,” “stealing a kiss,” “fondling,” and “misconduct.” We also analyze victim-blaming language, sexist expressions that betray a view of rape as a “loss of control,” the unseen presence of violent men, and the shifting nature and pathologizing of perpetrators. By examining rape culture specifically from the perspective of language or discourse, we provide lawyers with new tools to advance the fight against violence towards women.

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This article examines the extent to which entire agreement clauses (EACs) are enforceable under the Canadian common law of contracts and the extent to which these contractual provisions are effective in promoting contractual certainty. EACs are generally found in commercial agreements between legally sophisticated parties and in contracts of adhesion with inequality of bargaining power between parties. Their purpose is to promote contractual certainty by establishing that the full terms of the contracts are to be found in the document containing the clause. Although the goal of EACs is to promote contractual certainty, their legal significance is far from definitive and their effectiveness is subject to several limitations. On some occasions, courts have given effect to EACs to prevent pre-contractual statements from being legally operative; in others, they have disregarded them and recognized the validity of claims based on statements external to the contract. This paper aims to examine the relevant case law relating to the enforcement of EACs and to assess the overall effectiveness of such clauses as a contractual device for promoting contractual certainty. It is suggested that courts could incrementally improve legal certainty, by more markedly differentiating the legal treatment of EACs found in fully negotiated contracts between sophisticated parties and contracts of adhesion.

Paul Daly, Jeremy Opolsky, Jake Babad, Julie Lowenstein, 2021 CanLIIDocs 2420

Abstract Background People who use drugs (PWUD) are known to fear calling emergency medical services (EMS) for drug overdoses. In response, drug-related Good Samaritan Laws (GSLs) have been widely adopted in the USA and Canada to encourage bystanders to call emergency medical services (EMS) in the event of a drug overdose. However, the effect of GSLs on EMS-calling behaviours has been understudied. We sought to identify factors associated with EMS-calling, including the enactment of the Canadian GSL in May 2017, among PWUD in Vancouver, Canada, a setting with an ongoing overdose crisis. Methods Data were derived from three prospective cohort studies of PWUD in Vancouver in 2014–2018. Multivariable logistic regression was used to determine factors associated with EMS-calling among PWUD who witnessed an overdose event. An interrupted time series (ITS) analysis was employed to assess the impact of GSL on monthly prevalence of EMS-calling. Results Among 540 eligible participants, 321 (59%) were males and 284 (53%) reported calling EMS. In multivariable analysis, ever having administered naloxone three or more times (adjusted odds ratio [AOR] 2.00; 95% confidence interval [CI] 1.08–3.74) and residence in the Downtown Eastside (DTES) neighbourhood of Vancouver (AOR 1.96; 95% CI 1.23–3.13) were positively associated with EMS-calling, while living in a single occupancy hotel (SRO) was negatively associated with EMS-calling (AOR 0.51; 95% CI 0.30–0.86). The post-GSL enactment period was not associated with EMS-calling (AOR 0.81; 95% CI 0.52–1.25). The ITS found no significant difference in the monthly prevalence of EMS-calling between pre- and post-GSL enactment periods. Conclusion We observed EMS being called about half the time and the GSL did not appear to encourage EMS-calling. We also found that individuals living in SROs were less likely to call EMS, which raises concern given that fatal overdose cases are concentrated in SROs in our setting. The link between many naloxone administrations and EMS-calling could indicate that those with prior experience in responding to overdose events were more willing to call EMS. Increased efforts are warranted to ensure effective emergency responses for drug overdoses among PWUD.

The notion of infringement of rights is the most sensitive issue in the practice of youth protection law. Paragraph 4 of section 91 of the Youth Protection Act provides that when the court seized of a child’s situation under the Act finds that a child’s rights have been infringed, it may order measures to correct the situation. When the rights of a child whose security or development is compromised, have possibly been infringed, the situation awakens the sensitivities of all of the parties involved and calls for diligent action. However, the court’s power to intervene in this matter is laconically defined in the piece of legislation. It has been the subject of unequal interpretations in case law without receiving particularly critical examination by the doctrine. The author therefore seeks to establish the basis for a rigorous legal understanding of this notion in order to render its interpretation consistent and recognize its limits.

Courts around the world moved quickly in determining how to conduct proceedings remotely in response to COVID-induced shutdowns. However, both implicitly and by their actions, in the initial wake of pandemic closures Canadian courts demonstrated a consensus that jury trials could only be conducted in person, even as other proceedings moved to a digital realm. We provide a snapshot of what Canadian courts’ initial responses were in adapting to their new reality. We then highlight general issues that need to be considered in conducting court proceedings online, as well as describe issues specific to criminal jury trials. Our contention is that the failure of Canadian courts to address these issues, and their failure to make any considerations towards conducting jury trials remotely despite doing so for nearly all other proceedings, leaves the jury trial vulnerable to obsolescence in a digital world.