Author Archives: Shaun Fluker

About Shaun Fluker

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary). Associate Professor. Please click here for more information.

Standing to Seek Judicial Review of a Statutory Decision

By: Shaun Fluker

PDF Version: Standing to Seek Judicial Review of a Statutory Decision

Case Commented On: Kozina v Knecht, 2019 ABQB 355

This is a decision by Mr. Justice Brian R. Burrows ruling that the applicant (Kozina) has standing to seek judicial review of a decision made by the Alberta Law Enforcement Review Board (Board). It seems that the applicant’s standing was contested at the outset of the judicial review hearing on March 29, and thus Justice Burrows initially heard submissions on standing. The merits of the judicial review application will now proceed at a later date. This ruling is of interest to me because of my ongoing work on standing to commence proceedings and also because the case involves the relationship between judicial review and a statutory right of appeal. Continue reading →

Distracted Driving and the Traffic Safety Act

By: Shaun Fluker

PDF Version: Distracted Driving and the Traffic Safety Act

Case Commented On: R v Ahmed, 2019 ABQB 13 (CanLII)

Alberta added distracted driving offences to the Traffic Safety Act, RSA 2000 c T-6 in 2011, and two of these provisions are the subject of this decision by Justice John T. Henderson. The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone. This particular section prohibits driving while holding, viewing or manipulating a hand-held electronic device or a wireless electronic device. The facts were not in dispute at trial, but the traffic commissioner ruled that a mobile phone is not an “electronic device” and thus acquitted the accused. The Crown appealed this decision to the Court of Queen’s Bench. A literal or plain reading of section 115.1(1)(b) does lead one to question the view that a mobile device is not an electronic device, but statutory interpretation is not always a literal exercise – particularly when the provisions themselves are written in a complicated or “inelegant” manner as is noted by the court here. This case is perhaps more about distracted drafting than it is distracted driving.

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Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

By: Shaun Fluker and Drew Yewchuk

PDF Version: Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

Policy Change Commented On: Alberta Orphan Black Bear Cub Rehabilitation Protocol, April 2018

In April 2018, Alberta Environment and Parks revised its wildlife rehabilitation policy to allow for the rehabilitation of black bears less than one year old. This change allows for the rehabilitation of orphaned black bear cubs in Alberta, an activity that has been prohibited since 2010 when Alberta implemented a policy change that heavily limited wildlife rehabilitation. Under the new policy, orphaned or injured black bear cubs and several other species have typically been euthanized by wildlife officers. Injured or orphaned wildlife with the good fortune of being found in the national parks might be spared this fate because of federal policy which is more accommodating to the interests of wildlife. For example, orphan bear cubs found in a washroom in Banff were sent to be rehabilitated outside of the province. The Public Interest Law Clinic at the University of Calgary had been working with a person interested in challenging Alberta’s prohibitive wildlife rehabilitation policy, and after the policy change for orphaned black bear cubs in April of 2018, we filed a freedom of information request under the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) seeking to learn more about this policy shift. In December 2018 we received the disclosure materials, and this post explains what we learned as part of our ongoing series about using the access to information process in Alberta.

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Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

By: Shaun Fluker

PDF Version: Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

Case Commented On: R v The Lake Louise Ski Area Ltd, 2018 ABPC 280 (CanLII)

In December 2017, the Lake Louise Ski Resort pled guilty to unlawfully cutting down and damaging 148 trees without a permit during the summer of 2013 in the Ptarmigan Chutes area of the resort. Some of the trees cut were whitebark pines, a species listed as endangered under the federal Species at Risk Act, SC 2002, c 29 (SARA). Section 32 of SARA prohibits any conduct that harms the endangered whitebark pines and section 97 makes it an offence to contravene this prohibition. Most of the trees cut at the resort were not from an endangered species, but were nonetheless cut down without authorization from Parks Canada, and thus Lake Louise also contravened section 10 of the National Parks General Regulations, SOR/78-213, which is an offence under section 24(2) of the Canada National Parks Act, SC 2000, c 32 (Parks Act). On November 30, 2018 Judge Heather Lamoureux of the Provincial Court of Alberta sentenced Lake Louise to a $1.6 million penalty under SARA for cutting the whitebark pines, and a $500,000 penalty under the Parks Act for unlawful cutting of the other trees, for a total penalty of $2.1 million which will be directed into the federal Environmental Damages Fund. Lake Louise has since filed an appeal with the Court of Queen’s Bench seeking to have this total penalty reduced to $200,000. Continue reading →

Let’s Talk About Access to Information in Alberta: Part One

By: Shaun Fluker and Drew Yewchuk

PDF Version: Let’s Talk About Access to Information in Alberta: Part One

Legislation Commented On: Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25

The Faculty’s Public Interest Law Clinic handles a lot of inquiries from the community that engage with Alberta’s access to information legislation: the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act). Simply put, there is a high demand for the disclosure of information collected, produced and otherwise held by state officials. The Information and Privacy Commissioner, who serves as an officer of the Legislature (FOIP Act, s 45), is responsible for overseeing the administration of the FOIP Act with the assistance of the Office of the Information and Privacy Commissioner (OIPC). In its 2015-2016 and 2016-2017 reports to the Legislative Assembly the OIPC indicated the access to information process in Alberta is approaching a crisis. Since commencing operations in 2015, the Public Interest Law Clinic has developed some expertise on working within the FOIP Act, and we would agree the system needs some critical attention. This post summarizes our current observations in this regard and, as the title to this post suggests, we see this as the beginning of a longer conversation. In order to illustrate the process and some of the problems within it, we refer to a request for information filed by the Clinic in July 2017, which is still ongoing, with respect to a creative environmental sentence imposed on CN Rail (see here for details on the offence and the creative sentence).

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