Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

By: Linda McKay-Panos

PDF Version: Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

Report Commented On: Information and Privacy Commissioner, Public Interest Commissioner, Investigation Report on Alleged improper destruction of records by Alberta Environment and Sustainable Resource Development

On January 7, 2016, the Office of the Information and Privacy Commissioner of Alberta (OIPC) and the Public Interest Commissioner (PIC) released their Investigation Report on alleged improper destruction of records by Alberta Environment and Sustainable Resource Development after the 2015 Provincial Election (Investigation Report). When reading the highlights of the Investigation Report’s recommendations, one hopes that the current government might implement and retain some rules and practices that deter future events of this nature.

After the Alberta provincial election in May, 2015, there were a number of media reports about destruction of records during the transition to a new government (Investigation Report, at para 2). The OIPC issued a news release on May 7, 2015 to inform and remind Albertans of the provisions of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) dealing with record destruction, while noting that some of the records were not subject to the same rules (Investigation Report, at para 6). On May 12, 2015, a disclosure of wrongdoing was made to the PIC under the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, C P-39.5, alleging that staff members of the Department of Sustainable Resource Development (ESRD) were instructed to move all briefing material into the Action Request Tracking System (ARTS), and all records would then be deleted (Investigation Report, at para 3). On May 13, 2015, the OIPC and the PIC announced that they would jointly investigate allegations that records within ESRD may have been destroyed in an unauthorized manner (Investigation Report, at para 9).

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Access to Legal Services in Women’s Shelters

By: Alysia Wright

PDF Version: Access to Legal Services in Women’s Shelters

Report Commented On: Canadian Research Institute for Law and the Family, Access to Legal Services in Women’s Shelters

In December 2015, the Canadian Research Institute for Law and the Family (CRILF) published a new report, Access to Legal Services in Women’s Shelters, authored by myself and Dr. Lorne Bertrand, examining access to legal services among clients of women’s domestic violence shelters. The study sampled the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs; examining the challenges clients attempting to access legal services encounter; and making recommendations for improvement. Although domestic violence affects both men and women, women are disproportionally victims of domestic violence compared to men and there are no shelters for male victims of domestic violence in Alberta.

We conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. We recommend that a further Alberta-wide study be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.

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The Regulation of the Construction and Operation of Electric Distribution Systems in Alberta

By: Nigel Bankes

PDF Version: The Regulation of the Construction and Operation of Electric Distribution Systems in Alberta

Decision Commented On: AUC Decision 20799-D01-2016, Finlay Group, Complaint Regarding FortisAlberta Inc, Distribution Line Rebuild Project, February 3, 2016

This decision of the Alberta Utilities Commission (AUC) involves the rebuild of a short 25 kV distribution by FortisAlberta Inc. Other than from the perspective of the landowners who owned property adjacent to the distribution line this could hardly be a matter of great moment, but the decision deserves a post because of what it tells us about what seems to be a gap in the regulatory rules governing the construction and operation of distribution lines in the province. The Commission does its best to fill that gap but it does seem odd that while a homeowner needs to “pull a permit” from the relevant municipal authority before doing electrical work in their home, there is no AUC permitting requirement that a distribution utility must satisfy prior to constructing new distribution lines or changes thereto. The absence of such a permitting requirement may make sense for a sophisticated entity operating a “behind the fence” generation and distribution system for a designated industrial system under s. 4 of the Hydro and Electric Energy Act (HEEA), RSA 2000, c H-16 (see generally, Nigel Bankes, Giorilyn Bruno and Cairns Price, “The Regulation of Cogeneration in Alberta” (2015) 53 Alberta Law Review 383) but it makes less sense when the distribution utility is providing an essential public service. On the other hand, the absence of a history of high profile complaints or adverse publicity for electric distribution utilities for their construction operations suggests that, in general, they have been doing a good job – and “if it ain’t broke don’t fix it.”

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Reflections on Week One of the Ghomeshi Trial

By: Jennifer Koshan

PDF Version: Reflections on Week One of the Ghomeshi Trial

I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.

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Posted in Criminal, State Responses to Violence | 8 Comments

The Tension Between Process and Outcome in Creating Representative Juries

By: Erin Sheley

PDF Version: The Tension Between Process and Outcome in Creating Representative Juries

Case Commented On: R v Newborn, 2016 ABQB 13

The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.

Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.

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Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

By: Joshua Sealy-Harrington and Tara Russell

PDF Version: Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909

In Abbotsford (City) v Shantz, 2015 BCSC 1909 (Abbotsford), Chief Justice Hinkson of the British Columbia Supreme Court assessed multiple Charter challenges to various bylaws affecting individuals experiencing homelessness in British Columbia. Abbotsford continues a trend of recent Canadian decisions addressing the Charter rights of homeless individuals. While the Court in Abbotsford recognized a right for homeless individuals to camp overnight in parks when insufficient shelter space is available, that right is narrow since it can be eliminated through the expansion of homeless shelters (even though many homeless individuals legitimately prefer camping to a shelter). Further, that right rests upon an unclear foundation of legal reasoning that narrows the constitutional protections for homeless individuals without adequate justification.

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Environment in the Courtroom – A Free Symposium on Environmental Inspections and Enforcement Actions: On-site and in Court, February 26 & 27, 2016

By: Allan Ingelson

PDF Version: Environment in the Courtroom – A Free Symposium on Environmental Inspections and Enforcement Actions: On-site and in Court, February 26 & 27, 2016

This is the fifth national environmental law symposium funded by Environment Canada (now Environment & Climate Change Canada), organized by the Canadian Institute of Resources Law (CIRL) in the Faculty of Law at the University of Calgary, and its partners. During the last four years, practitioners, judges, and academics from across Canada have attended either in person or online and have contributed questions and comments to the discussion of current important environmental law issues. Last year we had 299 registrants from across Canada and in the United States. This year one presenter (Jonathan Leo) will discuss the American experience with environmental inspections and enforcement actions. Registrants can obtain the symposium program and papers in both official languages. Symposium presentations will be in either French or English, depending on the speaker, and will address civil and/or common law perspectives. Attendees at previous symposiums have reported that the information that has been provided is both practical and useful. We encourage active audience participation in the panel discussions. Last year the symposium was held in the Faculty of Law at the University of Calgary. This year the national symposium has been organized by CIRL, the Faculty of Law at the University of Ottawa, and the Ontario Bar Association.

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Sexual Assault and Choking – Making Sense of the Legal Consequences

By: Jennifer Koshan

PDF Version: Sexual Assault and Choking – Making Sense of the Legal Consequences

Case Commented On: R v White, 2016 ABQB 24

The Jian Ghomeshi trial gets underway today and there is likely to be intense coverage of this event in the media and blogosphere (for earlier ABlawg posts on Ghomeshi see here and here). Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. Choking is not uncommon in sexual assault cases, although its legal significance is still somewhat murky. For example, in R v JA, [2011] 2 SCR 440, 2011 SCC 28, the Supreme Court declined to rule on whether choking that leads to unconsciousness amounts to bodily harm so as to vitiate consent (at para 21). A recent Alberta case, R v White, 2016 ABQB 24, considered the relevancy of choking in the context of sentencing for sexual assault offences. As I will discuss in this post, White suggests that choking should be seen as equivalent to bodily harm in this context, which may have implications for sexual assault matters more broadly.

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Physician-Assisted Dying Once Again Before the Supreme Court: What Just Happened?

By: Elliot Holzman

PDF Version: Physician-Assisted Dying Once Again Before the Supreme Court: What Just Happened?

Case Commented On: Carter v Canada (Attorney General), 2016 SCC 4

On February 6, 2015, the Supreme Court of Canada handed down its much-anticipated decision in Carter v Canada (Attorney General), 2015 SCC 5 (Carter I), a landmark ruling where the criminal prohibition on physician-assisted dying was declared unconstitutional. Professor Jennifer Koshan wrote here about Carter I. In that decision, the Court did not immediately invalidate the relevant sections of the Criminal Code, RSC 1985, c C-46, rather the declaration of invalidity was suspended by one year, set to expire on February 6, 2016. Since February 6, a confluence of factors, including: Parliament not acting with much hurry on crafting new legislation to respond to Carter I, a historically long federal election that resulted in a change of government, and the four-month dissolution of Parliament, resulted in the Court once again hearing oral arguments in the case – this time an application by the Attorney General of Canada to extend the suspension of invalidity by another 6 months (see Carter v Canada (Attorney General), 2016 SCC 4 (Carter II)).

In Carter II, the Court had to grapple with new issues since the Carter I decision – Quebec’s National Assembly enacted its own legislation permitting physician assisted suicide – and the Court heard oral arguments from the Attorney General of Quebec seeking an exemption from the proposed extension. The Court granted the Attorney General of Canada a four-month extension, Quebec was given the green light to implement its legislation, and in the four-month window, individual patients can apply to the courts for a constitutional exemption to the suspension of invalidity. This comment will first look at the remedy the Court crafted in Carter I, and then move on to its decision in Carter II.

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Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

By: Sarah Burton

PDF Version: Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

Case Commented On: Barr v Alberta (Attorney General), 2016 ABQB 10

Last spring, I posted a comment flagging the constitutional concerns surrounding section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1, the province’s gang affiliation law (here). The provision authorizes police officers to remove or exclude anyone from a licenced premises based on their belief that the target of removal is connected, in varying degrees, to a gang (see section 69.1 here). Failing to comply with this direction is an offence punishable by a fine and/or a maximum of 6 months in prison (Gaming and Liquor Act, sections 116, 117; Barr v Alberta (Attorney General), 2016 ABQB 10 at para 3).

The gang affiliation law is meant to protect bar owners by diminishing gang presence in bars and de-incentivizing the lifestyle to potential recruits (Barr at para 6). Despite this laudable goal, the law raises several red flags under the Charter: it appears overbroad both in its sphere of application (it applies not only to bars, but all licenced premises) and targets for removal (including not only gang members, but persons who support or facilitate gangs, or persons in the company of any of those persons). It also appears to contravene the Charter’s guaranteed freedoms regarding peaceful assembly and association. I encourage readers interested in the provision to read my earlier post here.

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