Nicholas Devlin

Nicholas Devlin (born September 30, 1971) is a Canadian jurist and former federal prosecutor. He is currently a Justice of the Court of King's Bench of Alberta.

Devlin served as law clerk for Justice Jack Major of the Supreme Court of Canada and then worked in various roles as a federal prosecutor with Public Prosecution Service of Canada. He was elevated to a federally appointed judge in 2019 since which he has presided over several notable family, civil, and criminal cases.

Early life and education

Nicholas Edward Devlin was born on September 30, 1971, in Calgary, Alberta.

He attended the University of Calgary where he earned his Bachelor of Arts in Canadian Studies in 1993 and his Bachelor of Law, graduating as his class's gold medalist in 1996. He went on to complete his Master of Law in 1998 at the University of Toronto where he wrote his thesis on the Charter of Freedom and Rights and freedom of the press.

Career

Public Prosecution Service of Canada

After university, Devlin clerked for Justice Jack Major of the Supreme Court of Canada and was called to the Ontario bar in 1999. He then worked at the litigation department of Torys for one year before spending time as a Fox Scholar at Middle Temple in London.

From 2001 till his appointment as a judge, Devlin served as a federal prosecutor and Senior General Counsel with Public Prosecution Service of Canada, during which he regularly appeared on behalf of the crown in front of the Supreme Court of Canada. There he argued prominent cases like R v. Topp, Mills v. R, R v. Taylor, Marakah v. R and Jones v. R, the last two of which formed significant dual cases regarding privacy law surrounding text messages in Canada. Devlin's role in those two cases was to represent the Crown's position during the appeal, emphasizing the loss of control over messages once they are sent, which impacts the expectation of privacy.

He was part of the landmark case R v. Antic which reaffirmed the “ladder principle” in bail decisions and emphasized the presumption of innocence and the right to reasonable bail under part (e) of Section 11 of the Canadian Charter of Rights and Freedoms, although Devlin's role representing the intervener was to argue for less lenient forms of detention provisions.

Outside the supreme court and in a trial fervently covered by the national media, Devlin was the prosecutor in a case in front of the Ontario Court of Appeal involving the 2011 Canadian federal election voter suppression scandal and the bail application of Michael Sona in front of Justice Harry LaForme. He was also the prosecutor on a prominent appeal in front of the Nunavut Court of Appeal involving Catholic priest Eric Dejaeger in a sexual abuse case.

Devlin served as adjunct professor at Osgoode Hall Law School from 2013 to 2017 where he taught trial advocacy techniques and cross examination methods.

Judicial career

On May 22, 2019, David Lametti, Minister of Justice and Attorney General of Canada, announced Devlin's appointment as a Justice of the Court of King's Bench of Alberta and a Judge ex officio of the Court of Appeal of Alberta.

In 2021, Devlin presided over a landmark case in which a Calgary woman sued the Calgary Police Service for negligence in the handling of her sexual assault complaint. His ruling, which recognized that the police owed a duty of care to those reporting crimes, allowed the lawsuit to proceed. This decision set an important precedent for holding police accountable for their conduct.

Further that year, Devlin ruled that no jurors will be allowed to serve in an upcoming sexual assault trial unless they confirm they have been vaccinated for Covid-19, which sparked controversy.

Devlin was the judge that overlooked the defamation suit initiated by Quebec-based DJ SNAILS in March 2024, where he awarded the plaintiff $1.5 million in damages.

As part of his role in the Supreme Court of the Northwest Territories, Devlin ordered the release of $120,000 in frozen funds to the former CEO of Łutsël K'é Dene First Nation’s business arm Denesoline Corporation, Ron Barlas, as funds for legal defence in January 2025. Commentators noted the far reaching implications of this case for the construction and real estate industry. Legal disputes such as this has the potential to freeze significant capital, leading to delays and increased costs in construction projects. As such, projects could be halted, affecting industry growth, innovation, and job creation.

Jurisprudence

According to Justice Lisa Silver’s analysis in ''Freedom of Expression & Protecting the Visual Environment'' for Top v Municipal District of Foothills No. 31, Justice Nicholas Devlin addressed the balance between freedom of expression and municipal regulations aimed at preserving visual aesthetics, reflecting a form of legal moralism. The case involved a bylaw prohibiting signage on trailers, a common issue in rural areas like Foothills County.

While acknowledging that the bylaw limited free expression under part (b) '' section 2 of the Canadian Charter of Rights and Freedoms'', Justice Devlin determined it was a reasonable limit under section 1, given the municipality’s objective to protect the “visual environment” from “visual pollution.” In applying the Oakes test, Justice Devlin concluded that the bylaw's objective was pressing and substantial, and the means chosen were proportionate. According to Silver, it underscored the importance of context in legal analyses and the need to balance competing interests in a manner that respects both individual freedoms and collective well-being.

In a case which appears to be to be the first instance where a court has outlined the factors to consider when deciding whether to allow late applications, Devlin addressed the exercise of discretion under section 89(2) of Alberta's Wills and Succession Act, which allows courts to permit late applications for family maintenance and support. He interpreted and applied the law purposively and remedially, weighing the applicant's circumstances against the potential impact on the estate and its beneficiaries. He considered factors such as the applicant's health, the estate's debts, and the applicant's previous actions, ultimately denying the late application due to lack of satisfactory explanation for the delay and potential prejudice to the estate.

In deciding the legal approach to testamentary capacity, Devlin applies the principles of flexibility, focusing on a common-sense approach and emphasizing that medical evidence alone cannot define legal capacity. His decision reinforced that the test for determining testamentary capacity is not one of certainty or beyond a reasonable doubt, but rather a "balance of probabilities." The ruling supported the notion that courts should look at the person's ability to understand their actions at the specific time the will was made, balancing medical insights with a broader legal realism. Further, the conflicting interests of family members can influence the way the evidence is presented and interpreted, but the court focuses on legal standards, not familial disagreements.Jacuta, James. "On the Landscape of Familial Discord a Person Might Lack Capacity." ''Hull and Hull LLP'', November 12, 2020, https://hullandhull.com/2020/11/on-the-landscape-of-familial-discord-a-person-might-lack-capacity/.

Publications

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References

{{DEFAULTSORT:Devlin, Nicholas
Judges in Alberta
1971 births
Living people
University of Calgary alumni
University of Toronto alumni