PDF version: Blow over? Think twice before blaming it on the flu. 

Decision considered: R v Kasim, 2011 ABCA 236.

The Respondent claimed to have drunk no more than 3 or 4 beers between 7 and 8:30 p.m. on September 18, 2008. He was behind the wheel soon after. At about 9 p.m. he complied with a lawful demand for an Intoxilyzer breath sample and the two samples he provided measured 100 mg percent, or 20 mg percent over the legal maximum of 80 mg of alcohol in 100 millilitres of blood. At trial the Respondent testified that his body temperature was elevated as he was suffering from the flu or a fever that day. This testimony was corroborated, and the trial judge accepted it. The Respondent’s expert witness, Dr. Malicky, testified that given the Respondent’s elimination rate, and an elevated body temperature, “his blood alcohol level at the time should have been approximately 36 mg percent if he had three containers of beer, and 60 mg percent if he had four containers of beer” (R v Kasim, [2010] AJ No 969, para 64). The Respondent argued that the test results were therefore askew and that raised a reasonable doubt as to whether he the violated the Criminal Code (RSC, 1985, c C-46). Both the Provincial Court judge and Queen’s Bench summary conviction appeal judge found for the Respondent. By consent order the Crown appealed to the Court of Appeal on a single issue: “The summary conviction appeal judge erred in law in her interpretation of s. 258(1) (c) of the Criminal Code” (CA decision at para 7). These Criminal Code provisions set out presumptions that subject to certain time and other limitations Intoxilyzer readings of blood alcohol are accurate. The provisions also limit permissible challenges to the presumed accuracy.

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PDF version: The Fading Federal Presence in Environmental Assessment and the Muting of the Public Interest Voice 

Topic: Federal environmental assessment and effective public participation update

Good environmental assessment followed by well crafted permits, regulation, monitoring and follow-up responsive to the assessment, results in better planned projects, fewer environmental impacts, and often net environmental and social sustainability gains. The legislative authority for the federal government to carry out the assessment is found in the Canadian Environmental Assessment Act (SC 1992, c 37) (”CEAA“) and regulations. The federal government may assess a project when it has constitutional jurisdiction over an area that may be impacted by a project, and, generally, where the federal government has permitting authority over the project or an aspect of it, all as set out in the CEAA and regulations. These areas include fisheries, navigation, migratory birds, federal lands, Aboriginal interests, nuclear facilities, interprovincial and international matters. Having the exclusive right to regulate in these and other areas, only the federal government can do a fully responsive job in assessing impacts. This is because only the federal government is in a position to know what information it needs in the environmental assessment process in order to determine whether it should provide the permit for the project when taking into account likely environmental impacts. If the project does go ahead (like most projects do) only the federal government is in a position to know what it needs during the assessment process in order to properly mitigate and regulate impacts, especially on areas within its jurisdiction. Such mitigation and alteration could include project alterations, monitoring, follow up conditions, and adaptive management measures that may require the proponent to change environmental management because of unexpected impacts. As well, as the responsible protector of the public interest with respect to matters under its jurisdiction, only the federal government can wholly take into account the public and national interest during the environmental assessment and following regulatory processes.

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PDF version: Lack v. Alberta: Court Unmuddies and Advances Accretion Law 

Case considered: Lack v. Alberta (Sustainable Resource Development), 2011 ABQB 379

Courts typically find the facts, ascertain the applicable law, and apply the law to the facts. When asked to apply common law of accretion to a natural world overlaid with complex situations of land ownership and statutory rules and rights under the Alberta Land Titles Act, RSA, c L-4, this straightforward approach cannot always easily be adopted. Over the last few years accretion challenges have invited creative judicial activity and problem solving in order to reconcile classic accretion at common law, the natural world, and the Alberta Torrens system as manifested in the Land Titles Act. My earlier blog Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach discussed some of the accretion issues that lead to questions regarding what is the applicable law in Alberta. Is it the old common law concerning accretion Is it an evolving common law to account for a changing physical and social world? Is it the common law mixed or modified by the application of the Land Titles Act, and rights under that Act? Justice Yamuchi’s decision in Lack v. Alberta takes us a fair distance in clearing up some of these recently exposed murky areas.

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PDF version: Innovative but controversial municipal bylaws survive challenges

Case considered: Keller v. Municipal District of Bighorn No. 8, 2010 ABQB 362

This case is significant in three regards. First it raises the thorny issue of standard of review regarding the reasonableness of a municipal bylaw under the Municipal Government Act (R.S.A. 2000, c. M-26) (MGA),  given that the SCC in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir) collapsed the previous standard of review categories of patent unreasonableness and reasonableness into one category, reasonableness, and section 539 of the MGA that states that no municipal bylaw (or resolution) may be challenged on the ground that it is unreasonable. Second, it considers the validity of an innovative municipal land use management tool that is not specifically authorized by the MGA, thus shedding light on the breadth of municipal authority in carrying out its land use and development functions. Third, it is the first decision to consider the effect of the Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (ALSA). The case considers who may bring a challenge regarding alleged non-compliance with the ALSA, and whether the ALSA is retroactive.

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Considered: Canadian Environmental Assessment Act, S.C. 1992, c. 37
Regulations Amending the Exclusion List Regulations, SOR/2009-88
Infrastructure Projects Environmental Assessment Adaptation Regulations, SOR/2009-89
Regulations and Regulatory Impact Analysis Statement

PDF Version: The Eviscerating of Federal Environmental Assessment in Canada

Introduction
A cornerstone of sustainable development is environmental assessment. Through environmental assessment (”EA”) processes regulators identify and assess the environmental, social, and economic consequences of proposed projects to assist them in determining whether they should be approved, and if so, under what conditions. Because of EA, projects are better planned and have reduced environmental impacts and social costs. However, notwithstanding the benefits of EA, recently the federal government has announced its plans to greatly reduce the number of federal EAs in Canada and to limit the application of federal legislation designed to protect our navigable waters and fisheries.

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Cases Considered: William Holowatiuk v. Beaver County, 2008 ABQB 290

PDF Version: Queen’s Bench Boosts Municipal Bylaw Making Powers

This decision takes a broad view of municipal powers granted under the Alberta Municipal Government Act (R.S.A. 2000, c. M-26) (MGA). In doing so it finds that statutory provisions that limit municipal powers may not limit municipal bylaw making power. Although the Court engaged in an extensive historical and statutory interpretation exercize in reaching its decision, in my view, the decision failed to consider a key provision of the MGA, section 13. If it had, the Court might well have reached a different conclusion.

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Cases Considered: Andriet v. County of Strathcona No. 20, 2008 ABCA 27

PDF Version: Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach

In this important reserved judgment, the Alberta Court of Appeal applied a creative approach to attempt to reconcile uncertainties relating to common law accretion with a Torrens Land Titles system, and in doing so once again found for private ownership of accreted lands over Crown ownership of exposed beds and shores.

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