Yearly Archives: 2015

R v Porter: Self-incrimination – Judicial Restraint of State Coercion

By: Brett Code, Q.C.

PDF Version: R v Porter: Self-incrimination – Judicial Restraint of State Coercion

Case Commented On: R v Porter, 2015 ABCA 279

It should not have been necessary, because the applicable law on the matter has been settled since 1999, but for those police officers and prosecutors who might have forgotten, the Court of Appeal in R v Porter has once again forcefully stated that statutorily compelled statements are inadmissible in criminal trials because they violate the principle against self-incrimination and section 7 of the Canadian Charter of Rights and Freedoms. Insistent upon guarding against the admissibility of potentially unreliable confessions, against potential abuse of state power, and against the improper use by the Crown of otherwise properly-collected, statutorily required information, the Court confirmed the principle of fundamental justice that the state may not conscript the accused against himself or herself but must build any case to meet without compelled evidence from the suspect.

At issue was the use, if any, that could be made of information contained in compulsory accident reports made to police under section 71 of the Traffic Safety Act, RSA 2000, c T-6 (TSA) and in compulsory statements made to insurers for insurance purposes following an accident. The Court’s decisive conclusions were that:

  1. such statements or the information contained in them are inadmissible in criminal proceedings arising out of a car accident; and
  2. the information obtained through those statements cannot be used as part of the reasonable and probable grounds of an informant in an Information to Obtain a Search Warrant or Production Order.

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What Policy Direction should Alberta Follow on Carbon Emissions?

By: Shaun Fluker

PDF Version: What Policy Direction should Alberta Follow on Carbon Emissions?

Matter Commented On: Climate Leadership – Discussion Document (Government of Alberta, August 2015)

Alberta’s Climate Change Advisory Panel is seeking public input on what direction provincial climate change policy should follow going forward. One method of providing your input is to complete an online survey on or before September 18. This is the second part of a two-step process announced by the Minister of Environment and Parks in late June 2015 (see here for the post by my colleague Nigel Bankes on this announcement). To inform this important public dialogue, in August 2015 the Climate Change Advisory Panel published the Climate Leadership – Discussion Document. This 62 page document sets out the overall carbon emissions profile in Alberta (at 9 – 17) and then discusses emissions by individual economic sector and summarizes policy tools that have been used in Alberta and elsewhere to reduce emissions in that sector: oil & gas (at 20 – 26), electricity (at 27 – 34), transportation (at 35 – 40), commercial and residential buildings (at 41 – 46), industrial and manufacturing (at 47 – 51), agriculture, forestry, and waste (at 52 – 56). The Minister’s announcement together with the overall tone and content of the discussion document make it clear the current intensity-based emissions reduction policy implemented by the Specified Gas Emitters Regulation, Alta Reg 139/2007 will be replaced on or before the end of 2017. I believe the centrepiece of Alberta’s new direction should be joining the cap-and-trade system currently operating in Quebec and California, along with Ontario which in April 2015 announced its intention to join.

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ITLOS, The Enrica Lexie Incident and the Prescription of Provisional Measures: Saying That There is Urgency Does Not Make It So

By: Nigel Bankes

PDF Version: ITLOS, The Enrica Lexie Incident and the Prescription of Provisional Measures: Saying That There is Urgency Does Not Make It So

Decision Commented On: ITLOS, The Enrica Lexie Incident: Order in respect of request for the prescription of provisional measures, Italy v India, 24 August 2015

Article 290 of the Law of the Sea Convention of 1982 (LOSC) accords the International Tribunal of the Law of Sea (ITLOS) the authority to prescribe provisional measures in two different circumstances. Paragraph one authorizes ITLOS (along with the International Court of Justice, and any relevant international tribunal properly seized with an application) “to prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision” provided that ITLOS, the Court or an arbitral tribunal (as the case may be) has prima facie jurisdiction, to consider the matter.

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The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

By: Kirk Lambrecht, Q.C.

PDF Version: The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

Matter Commented On: Order in Council PC 2015-1137

In plain language, it seems that the Governor in Council shot the Trans Mountain Pipeline Expansion Project in the foot just as the Project was about the cross the finish line of a two year environmental assessment and regulatory review process overseen by the quasi-judicial National Energy Board [NEB]. A Governor in Council decision to appoint a Proponent’s witness to the NEB, taken while a Panel of the NEB was still considering the Proponent’s application, has occasioned the striking of a part of the Proponent’s evidence in the ongoing environmental assessment process (described here) and regulatory review process (described here) for the Trans Mountain Pipeline Expansion Project (described here). The Governor in Council’s action will cause unexpected changes and delays to these processes; and the clouds of future litigation which lay on the horizon for this Project now darken as a further consequence. This comment is structured around four questions: (1) what happened? (2) how could this happen? (3) will this affect Aboriginal consultation? and (4) what happens next?

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Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?

By: Nigel Bankes

PDF Version: Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?

Decision Commented On: Chief Gale and the Fort Nelson First Nation v Assistant Regional Water Manager & Nexen Inc et al, Decision No. 2012-WAT-013(c), BC Environmental Appeal Board, September 3, 2015

In this important (and lengthy) decision (115pp), British Columbia’s Environmental Appeal Board (EAB) revoked Nexen’s commercial water licence for two reasons: first, the terms and conditions of Nexen’s licence were not technically supportable, and second, the Crown was in breach of its constitutional obligation to consult the First Nation with respect to the decision to issue the water licence.

I think that the decision is important for at least four reasons (notwithstanding the fact that the days for the version of the Water Act, RSBC 1996, c 483 in force at the time of this licence decision are numbered since it is due to be replaced by the new BC Water Sustainability Act in early 2016 and for comment see here). First, and most generally, it is an excellent example of the important role that environmental appeal boards can play in shining a light on the administrative practices of line departments. In the same vein, it is also offers a dramatic illustration of the differences between the role of an EAB and the role of a court on a judicial review or statutory appeal application. An EAB can offer a searching, de novo, technical re-assessment of the merits of the department’s decision; a court is inevitably more deferential and precluded from engaging in an assessment of the merits. I have written at length on this important role that EABs serve, see “Shining a light on the management of water resources: the role of an environmental appeal board” (2006), 16 Journal of Environmental Law and Practice 131 – 185.

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