Author: Drew Yewchuk Page 17 of 19

B.A. (UAlberta) J.D. (UCalgary) LLM (U.B.C.) Drew was a full-time staff lawyer with the University of Calgary's Public Interest Law Clinic from 2018-2022. He is now an PhD student at the Peter A. Allard School of Law. His research focuses on administrative secrecy, access to information law, species at risk, resource law, and environmental liabilities.

The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

By Drew Yewchuk

On April 19, 2017

In Environmental

By: Shaun Fluker and Drew Yewchuk

PDF Version: The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

Last November, the University of Calgary’s Public Interest Law Clinic, on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter, presented to the Expert Panel responsible for Canada’s federal environmental assessment process. The presentation focused exclusively on problems with the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52 (CEAA 2012). We described that presentation here, and the full written submission to the Panel including exhibits is available here (CPAWS Submission). The Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada, was released April 5, 2017. Professor Arlene Kwasniak provided some background and an overview of key aspects of the report here. CPAWS left the Expert Panel with three messages in relation to the current federal environmental assessment process in the national parks: there is (1) too much discretion; (2) not enough transparency; and (3) a complete lack of accountability. In this post, we comment on how the Report addresses each of these points.

As an overall comment, it is disappointing the Expert Panel did not specifically address environmental assessment in the national parks. The Report focuses on sustainability as the measuring stick for impact assessment: “Federal IA [impact assessment] should provide assurance that approved projects, plans and policies contribute a net benefit to environmental, social, economic, health and cultural well-being.” (at 2.1.3) While sustainability is a commendable objective generally, this commitment to sustainability and its polycentric consideration of factors is not consistent with the legislated priority of maintaining or restoring ecological integrity in the national parks. The legislated ecological integrity mandate set out in section 8(2) of the Canada National Parks Act, SC 2000 c 32 demands an assessment process which skews in favour of environmental protection over economic and other social considerations. Perhaps, however, the Expert Panel was thinking of national parks and the ecological integrity mandate in its recommendation for regional impact assessments. The Report specifically calls for regional impact assessments that address matters such as baseline conditions and thresholds for federal lands with the potential for cumulative effects problems (at 3.5).

An Update on The Right to Trial Within a Reasonable Time

By Drew Yewchuk

On March 2, 2017

In Constitutional, Criminal

By: Drew Yewchuk

PDF Version: An Update on The Right to Trial Within a Reasonable Time

Cases Commented On: R v Lam, 2016 ABQB 489 (CanLII); R v Regan, 2016 ABQB 561 (CanLII); R v Lavoie, 2017 ABQB 66 (CanLII)

It has been about 8 months since the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and overhauled how courts deal with applications under section 11(b) of the Charter, the right “to be tried within a reasonable time”. I described the new framework in an earlier post. In short, Jordan established presumptive ceilings for unreasonable delay (minus defence delays and exceptional circumstances) between charges being laid and the end of trial. The ceilings are 18 months for charges going to trial in provincial court and 30 months for charges going to superior court, subject to a flexible transitional approach for cases that were already in the system when Jordan was decided. Since the release of Jordan there have been 11 reported decisions in Alberta posted to CanLII for applications for stays under the new framework. This post discusses three of those decisions that addressed interesting aspects of the new framework.

Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?

By Drew Yewchuk

On February 24, 2017

In Administrative Law

By: Shaun Fluker and Drew Yewchuk

PDF Version: Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?

Case Commented On: Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII)

Statutory provisions which provide for an appeal from a statutory tribunal to a superior court have not received much critical attention in Canadian administrative law. In 2010 the Alberta Law Reform Institute contemplated a study on statutory appeals to the courts from adjudicative decisions, and in preparation for that study the Institute compiled an inventory of adjudicative tribunals and their statutory appeal mechanisms published in Administrative Adjudicative Decisions: Statutory Review Mechanisms. The Institute decided not to pursue this study, which is unfortunate because there is plenty of uncertainty surrounding the application of these provisions including, for example, how they operate alongside the inherent authority of a superior court to engage in judicial review of administrative decisions. That point does not concern us here, but rather our focus is on the typical legislative requirement that a prospective appellant to obtain leave or judicial permission to proceed with the statutory appeal of a tribunal decision. What principles guide the court in deciding whether to grant leave to appeal? The leave to appeal decision in Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII) provides a recent illustration for the purpose of exploring this question.

CPAWS Presents to the Expert Panel for Environmental Assessment

By Drew Yewchuk

On November 23, 2016

In Environmental

By: Shaun Fluker, Kristina Roberts, and Drew Yewchuk

PDF Version: CPAWS Presents to the Expert Panel for Environmental Assessment

Case Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime continues to hear presentations on recommended amendments to the federal environmental assessment process (Professor Martin Olszynski published his presentation to the Panel in an earlier post). The University of Calgary’s Public Interest Law Clinic was retained to advise and assist the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter and National Office in making recommendations to the Panel. On November 23, 2016, Professor Shaun Fluker together with Anne-Marie Syslak, the Executive Director of CPAWS – Southern Alberta, co-presented to the Panel on behalf of CPAWS. This submission focused exclusively on the current state of the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52, a process which is perhaps best summarized as non-transparent, unaccountable, and completely discretionary. What follows is an excerpt from the CPAWS presentation to the Panel.

The Appointment of Justice Rowe

By Drew Yewchuk

On October 26, 2016

In Supreme Court of Canada

By: Drew Yewchuk

PDF Version: The Appointment of Justice Rowe

Event Commented On: Nomination of the Honourable Malcolm Rowe for Appointment to the Supreme Court of Canada

On October 17, 2016 Prime Minister Trudeau nominated Justice Malcolm Rowe for appointment to the Supreme Court of Canada. Justice Rowe was a trial judge in Newfoundland and Labrador for two years before being appointed to the Court of Appeal of Newfoundland and Labrador in 2001.

The first section of this post describes the recent changes to the Supreme Court appointment process, as Justice Rowe is the first nomination under the new process. The second section of this post reviews Justice Rowe’s application for the position. The third discusses the public hearing, which I attended in Ottawa on 25 October 2016.