PDF version: Sliding Down the Slippery Slope

Case considered: R. v. Loewen, 2010 ABCA 255

In the area of national security, the years since the attacks of September 11, 2001, have been characterized by an increased dominance of state power in terms of investigation, interrogation, and detention powers, often at the expense of individual liberties. This dominance has become entrenched in some respects in Canada, as well as in a number of other democratic nations, and in many ways has become so familiar that it arguably represents a new normal, rather than an extraordinary situation.

It is my belief that, while this shift has attracted most attention in the national security arena, and is primarily advanced in that arena, the increasing acceptance that individual rights must give way to state security interests sets the stage for the proverbial slippery slope, lending credibility to arguments for the erosions of individual rights in more traditional criminal matters as well. As an example, the increasing tendency of national governments to allow for warrantless searches in cases in which terrorism is alleged may arguably have served as an undercurrent for the recent decision of the Supreme Court of Canada in R. v. Gomboc, 2010 SCC 55 (overturning a ruling by the Alberta Court of Appeal and upholding a warrantless request by Calgary police to an electrical company to install a recording device, designed to measure electrical usage, to determine whether the person under investigation was growing marijuana).

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PDF version: Accommodation for Family Status Required by Federal Human Rights Tribunal for Three Alberta Women 

 Cases considered: Cindy Richards v Canadian National Railway, 2010 CHRT 24; Kasha Whyte v Canadian National Railway, 2010 CHRT 22; Denise Seeley v Canadian National Railway, 2010 CHRT 23

Family status was added in 1996 as a protected ground under Alberta’s human rights legislation (currently the Alberta Human Rights Act, RSA 2000, c A-25.5, (AHRA)). Under the AHRA, family status is defined as: “the status of being related to another person by blood, marriage or adoption” (section 44(1)(f)). Family status is also a protected ground in several other jurisdictions, including federally. Three recent and related decisions of the Canadian Human Rights Tribunal indicate that under the ground of family status, employers will be required to accommodate parental responsibilities.

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 PDF version: Using water reservations to protect the aesthetic values associated with water courses: a note on the Spray River (Banff)

Documents commented on: Order in Council 546\49; South Saskatchewan Basin Water Allocation Regulation, Alta. Reg. 307/1991 (rescinded by Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta. Reg. 171/2007); Alberta Environment, TransAlta Utilities (TAU) licence for the Spray River development.

I have been doing some work on Crown water reservations over the last few months and in the course of that came across an example of what at first glance seemed to be the use of a water reservation to preserve the aesthetic qualities of a watercourse. The example also has an interesting constitutional twist that is worth reflecting on.

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PDF version: CCS and CDM: the eligibility of carbon capture and storage projects under the clean development mechanism of the Kyoto Protocol - the Cancun Meeting of the Conference of the Parties

Decision commented on: UNFCCC, Kyoto Protocol, CoP\MoP Decision on “Carbon dioxide capture and storage in geological formations as clean development mechanism project activities”

The 16th Meeting of the Conference of the Parties to the United Nations Convention on Climate Change (UNFCCC), and the 7th Meeting of the Parties to the Kyoto Protocol (KP) (CoP\MoP) concluded last week in Cancun. In the assessment of most observers this was a successful meeting but perhaps only because expectations were modest and anything seemed liked progress after the Copenhagen debacle of last year. But there is still much that remains to be done before countries can agree on a successor to the first commitment period of the KP which expires in 2012. Without such agreement the KP will simply die. Some, especially Europe, but also developing countries, want to see a second commitment period. But others, like Canada, point to the lack of inclusiveness of the KP (to say nothing of our own non-compliance which would result in a penalty on Canada during any second commitment period) and want to see an alternative to the KP that imposes emissions reduction obligations not only on the United States (not a party to the KP) but also on the so-called BRIC countries (Brazil, India, China) as well as other developing countries.

The Meeting did make progress on number of larger matters including REDD+ (reduced emissions from deforestation and forest degradation) and on the narrower issue of the eligibility of carbon capture and storage (CCS) projects under the clean development mechanism (CDM) of the KP. The purpose of this note is to provide an update on that debate.

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PDF version: Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v. Cunningham 

Case considered: Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development), et al. v. Barbara Cunningham, et al. (Alberta) (Civil) (By Leave) Case number 33340, on appeal from Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

The Supreme Court of Canada is scheduled to hear the appeal of the Alberta government in Alberta (Minister of Aboriginal Affairs and Northern Development) v. Cunningham on Thursday, December 16, 2010. Cunningham will be the first case in which the Supreme Court considers the application of section 15(2) of the Charter since that Court gave independent meaning to section 15(2) in R. v. Kapp, 2008 SCC 41 and the first case in which the Court must consider the possible application of section 15(2) when the challenge is on the basis of under-inclusiveness. This comment is based on my experience serving on the Women’s Legal Education and Action Fund (LEAF) case subcommittee in Cunningham, the factum filed by LEAF, and, to a much lesser extent and only to offer a contrast, the facta of the Appellants and the Attorney General of Ontario.

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PDF version:The Continued Complexity of Administrative Law post-Dunsmuir 

Cases considered: Mitzel v. Alberta (Law Enforcement Review Board), 2010 ABCA 336; Calgary (City) v. Alberta (Municipal Government Board), 2010 ABQB 719

The Supreme Court’s judgment in Dunsmuir v. New Brunswick, 2008 SCC 9, purported to identify a “more coherent and workable” approach to substantive judicial review (Dunsmuir at para. 32). Whether, as a general matter, Dunsmuir has achieved this ambition is uncertain. It does seem to have liberated courts from the formalistic analysis that was previously de rigueur in the standard of review analysis. On the other hand, it has left some significant questions unanswered, and in some respects has created new issues that did not exist formerly.

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PDF version: What is the applicable standard of review in assessing the adequacy of reasons? 

Case considered: Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719

This decision concerns an appeal by the City of Calgary from an order of the Municipal Government Board that set aside a business tax assessment on underground parking facilities owned by BTC Properties II in the downtown area. The Municipal Government Act, RSA 2000, c M-26 and applicable City bylaws provide that a business tax is assessable on those persons who operate a business in premises located in Calgary. The issue at the Municipal Government Board was essentially whether BTC is in the business of selling parking, and one particular item of dispute was whether the fact that BTC charges its tenants a separate and additional fee for parking space is decisive evidence that it is in the parking business. The Municipal Government Board concluded that BTC did not operate a parking business, and accordingly set aside the City’s business tax assessment. The City was unsuccessful in seeking judicial review at the Court of Queen’s Bench. One ground of appeal argued by the City was that the Board did not provide adequate reasons in its decision to set aside the tax assessment. My comment here focuses solely on this issue, and in particular examines the following question: What is the applicable standard of review to be applied by a reviewing court in assessing the adequacy of reasons provided by an administrative decision-maker? Madam Justice Romaine confirms that this issue is not settled law in Alberta (at para 42).

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PDF version: Little Salmon and the juridical nature of the duty to consult and accommodate 

Case commented on: Beckman v Little/Salmon Carmacks First Nation, 2010 SCC 53

This is the first decision of the Supreme Court of Canada to deal head on with the relationship between the terms of a constitutionally protected land claims agreement (LCA) and the duty to consult and accommodate. The Court holds that the terms of an LCA do not exhaust the Crown’s duty to consult, or, to put it another way, an LCA is not a complete code but is embedded in the general legal system embracing both constitutional law norms and administrative law norms. This means that the Crown may have consultation obligations that are additive to those found in the text of an LCA. However, the majority articulates a narrow view of the content of the duty to consult and thus it was easy for the Court to find that the Crown — here the Government of Yukon (YTG) — had satisfied its obligations. In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.

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Proposal commented on: ERCB Bulletin 2010 - 42, Invitation for Feedback on Draft Legislative Amendments for Removing Industrial Development Permits for Energy Resource Use

Yes. That’s right. In Bulletin 2010-42 issued on December 2, 2010 the ERCB announced that it is “proposing to remove industrial development permits (IDP) legislation from its mandate”. If that wasn’t clear enough the Bulletin goes on to state that “The ERCB is proposing to repeal Sections 28 to 31 of the CCA, [Coal Conservation Act, RSA 2000, c. C-17], Section 43 of the OGCA, [Oil and Gas Conservation Act, RSA 2000, c. O- 6] and Section 12 of the OSCA [Oil Sands Conservation Act, RSA 2000, c. O- 7]. The ERCB is also proposing to modify the definitions of a “processing plant” and “oil sands products” under the OSCA to provide greater clarity as to what types of facilities would fall under the ERCB’s jurisdiction.”

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PDF version: Domestic Violence and Provocation: The Door Remains Open 

Case Considered: R. v. Tran, 2010 SCC 58

The Supreme Court’s most recent decision, R. v. Tran, is an Alberta case I commented on at the Court of Appeal level. Tran involves a man who killed his estranged wife’s lover and slashed his wife’s face, causing her permanent injury. The issue in this case was whether there was provocation arising from the fact that the accused found his wife in bed with her lover, such that he should be convicted of manslaughter rather than second degree murder. In a decision authored by Justice Louise Charron, the Supreme Court agreed with the Alberta Court of Appeal that provocation was not made out in the circumstances of the case, and upheld the accused’s conviction for murder. While this is a positive outcome, in my view the Court did not go far enough in contextualizing this case as one involving domestic violence, nor did it foreclose future uses of the provocation defence in this context.

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