Have you ever thought how very strange it is that in this exact moment 10, 20, 50 years ago, something life changing may have been occurring?
In today’s blog, the Honourable J.E. Côté, opens a window into the past, sharing June in our legal history.
Alberta lawyers work very hard, and June is certainly no exception. Furthermore, there is actually no holiday in June, only the tantalizing vision of a long weekend just after the end of the month. Yet the weather is usually inviting in June, and the idea of going to the lake or leaving work early, or just having a beer or a milkshake, is alluring.
So what is to be done? An excuse might be helpful. Lawyers tend to be more motivated by guilt than anything else, so an excuse to give to yourself is the most important thing. You could do some internet research, and eventually find out that today or tomorrow is Honduras’ National Day, or something of the sort. But that would not really persuade you. Besides, you would know how you found that excuse for leaving early. Guilt would increase, not diminish.
Therefore, you need some significant event to honor and commemorate. It has to be real, it has to be provided by someone else reasonably respectable, it has to do with Canada or Alberta, and above all (to minimize guilt) – it must be something about the law.
So LESA hands you, free of charge, a list of true events important to Canadian and Alberta lawyers. All these occurred in June. The list extends throughout the whole month. The events are arranged according to your needs, not the needs of clients or courts; so they are arranged by date. Keep this list all month. With luck, any time you need to consult it, you will find tomorrow’s date here.
June in our Legal History
We forget a lot of our legal history, even quite recent events. Why? Maybe because there is no specific day or mechanism to remember it. The more important a legal development, the more it seems to us natural. We forget that once things were very different.
June saw many important things occur on our legal scene. It is useful to recall some of them now.
Early June
June 4 (1937), a 5-judge Court of Appeal struck down various Social Credit Acts preventing creditors from enforcing debts or foreclosing on mortgages, and reducing the interest contracted for. All were held ultra vires or contrary to valid federal legislation: Credit Foncier v Ross, [1937] 2 WWR 353, 1937 CarswellAlta 3 (Alta CA).
Fifty years later, on June 4 (1987), the Supreme Court of Canada confirmed that it is legal to make permanent contracts about spousal support, so long as they are freely made with independent advice, and not unconscionable. The Court set a comparatively narrow ground to vary such contracts later: Pelech v Pelech, [1987] 1 SCR 801, [1987] 4 WWR 481 (SCC) (CanLII).
On June 9 (2005), the Supreme Court gave one of its few decisions about rights to health care, albeit under the Quebec Charter. The Court held that for treatment where waiting lists are too long, it is unconstitutional to make illegal private health insurance: Chaoulli v A-G Quebec, 2005 SCC 35, [2005] 1 SCR 791 (CanLII).
On June 10 (1937), Sir Robert Borden, who had been Prime Minister during the First World War and the following peace negotiations, died. He was a Nova Scotia lawyer.
Mid June
On June 12 (1986), the Supreme Court ruled that courts have no jurisdiction over any dispute covered by a collective labour agreement, if the possible remedies available under that agreement are adequate: Ste Anne Nakawic Pulp & Paper v CPU, [1986] 1 SCR 704, 73 NBR (2d) 236 (SCC) (CanLII).
On June 18 (1992), the Supreme Court held that in torts, it is rarely a defence that the pl. voluntarily took part in the illegal activity complained of. And it also held that battery is actionable without damage, and that professionals often owe fiduciary duties to their patients or clients: Norberg v Wynrib, [1992] 2 SCR 226, [1992] 4 WWR 577 (SCC) (CanLII).
On June 20 1951, the Privy Council held that contributory negligence exists even where the pl. “guilty” of it owed no duty to the opposing party. It also endorsed great deference to jury damage awards, and set the rules to calculate Fatal Accident Act awards: Nance v British Columbia Electric Railway, [1951] AC 601, 2 WWR (NS) 665 (PC).
On June 23 (1982), the Supreme Court of Canada affirmed the great importance of solicitor-client privilege, as a substantive right, and set limits for searches for privileged documents: Descôteaux et al v Mierzwinski, [1982] 1 SCR 860, 141 DLR (3d) 590 (SCC) (CanLII). The Supreme Court quoted at great length and followed an Alberta C.A. decision. This reversed the law in other Canadian provinces, in a way that many courts and authors there still do not like to recognize, despite constant reaffirmation of Descôteaux by the Supreme Court.
Late June
On June 25 1987, the Supreme Court of Canada decided R v Manninen, [1987] 1 SCR 1233, 61 OR (2d) 736 (SCC) (CanLII). Anyone detained has the right to consult a lawyer and must be given a reasonable opportunity to exercise that right promptly, including the offer of use of a telephone, and ceasing questioning until that time expires. Admissions made after breach of those rules are usually inadmissible, they held.
13 years later, in 2010, the Supreme Court of Canada laid down the Charter rules for roadside vehicle stops, and possible searches. They adopted a step-by-step analysis, recognizing various possible degrees of a right to privacy. And they defined what is a search incidental to arrest: R v Nolet, 2010 SCC 24, [2010] 1 SCR 851 (CanLII).
Many notable things occurred on June 26. In 1854, Sir Robert Borden was born. In 1947, Viscount Bennett, former Prime Minister in the early to mid-1930s, died in his new home in England. He was a former Calgary lawyer.
And 39 years later, on June 26 1986, the Supreme Court decided R v Mills, [1986] 1 SCR 863, 58 OR (2d) 543 (SCC) (CanLII). It defined what is a competent court that can give Charter remedies: provincial superior courts, but usually not Provincial Courts when they are not hearing trials. Breach of the Charter by a court does not usually end its jurisdiction.
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