Author Archives: Scott Carrière

About Scott Carrière

Scott Carrière is a 2020 Juris Doctor candidate at the University of Calgary. Scott received a Bachelor of Science in Engineering (Civil-Environmental) from the University of Alberta. As an engineer, he worked as an environmental consultant in the area of remediation and reclamation for the mining and oil and gas industries. Scott is a summer law student with Osler, Hoskin & Harcourt LLP and research assistant to Professor Fenner Stewart, and is an incoming Associate Editor-in-Chief of the Alberta Law Review. Scott will also be articling with the Provincial Court of Alberta.

Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

By: Scott Carrière

PDF Version: Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

Case Commented On: R v Desautel, 2019 BCCA 151 (CanLII)

On October 24, 2019, the Supreme Court of Canada agreed to hear the Crown’s appeal from the British Columbia Court of Appeal’s decision in R v Desautel, 2019 BCCA 151 (CanLII) (Desautel). The Crown characterized the case as one of national significance, and the country’s highest court has decided to hearthe case despite Desautel’s unanimous three-judge decision. It is difficult to disagree; the case raises issues surrounding the role of Canadian sovereignty in the application of Aboriginal rights and the guarantees of section 35 of The Constitution Act, 1982. Sovereignty inherently implicates all Canadians, thus the Court of Appeal’s reasoning deserves careful scrutiny on this matter.

In Desautel, the Court of Appeal upheld the acquittal of Richard Desautel for hunting without a licence contrary to the Wildlife Act, RSBC 1996, c 488. It did so by affirming his section 35 Aboriginal right to hunt in an area in southeastern British Columbia, having satisfied the test for such rights set down by the Supreme Court of Canada in R v Van der Peet, 1996 CanLII 216 (SCC). Desautel, however, is an American; he has never lived in British Columbia, nor is he a Canadian citizen. He is a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) living on the Colville Indian Reserve in Washington (Desautel at paras 4 – 5). The basis for the rights claim was CCT’s status as successor to the Sinixt, a people whose traditional territory straddled the Canada-US border and who crossed the border frequently even into the 20th century. The case therefore turned on whether section 35 could apply to non-Canadians and how to reconcile the assertion of sovereignty in the context of modern borders (Desautel at para 3).

This post will examine the British Columbia Court of Appeal’s analysis of the interplay of Canadian sovereignty and Aboriginal rights that arose in Desautel. It will not attempt to predict how the Supreme Court of Canada may approach the Crown’s appeal, but will reflect on ambiguities not addressed by British Columbia’s top court and how they might play out in Alberta and elsewhere in Canada. Continue reading →

Alberta Court of Appeal Stages a Judicial Intervention on Judicial Interventions

By: Scott Carrière

PDF Version: Alberta Court of Appeal Stages a Judicial Intervention on Judicial Interventions

Case Commented On: R v Quintero-Gelvez, 2019 ABCA 17

In January, the Alberta Court of Appeal (the Court) allowed an appeal from a sexual assault conviction in R v Quintero-Gelvez, involving an issue of judicial intervention. The matter before the Court was whether repeated comments and interventions by the trial judge inhibited defence counsel from cross-examining the complainant as he was entitled, preventing the accused from making full answer and defence. The Court, in ordering a new trial, declined to take up the question of bias but agreed trial fairness was compromised. Continue reading →

Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

By: Scott Carrière

PDF Version: Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

Case Commented On: Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission, 2018 ABQB 476 (CanLII)

On June 19, 2018, the Alberta Court of Queen’s Bench (the Court) issued its decision in Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission (Steam Whistle), holding that two changes to mark-up rates on craft beer produced outside Alberta were ultra vires s 121 of the Constitution Act, 1867, 30 & 31 Vict, c 3 (the Constitution). The Alberta Gaming and Liquor Commission (AGLC) applies these mark-ups to retailers based on different classes of liquors. Prior to 2015, the same mark-up was applied to all craft beer produced anywhere in Canada. However, by 2016, the mark-up regime had differential rates applied to different regions, along with a grant for Alberta brewers to offset to the mark-up they would otherwise pay.

In assessing their pith and substance, Justice Gillian Marriot held the AGLC’s mark-up regime to be a valid scheme of proprietary charges under the Gaming and Liquor Act, RSA 2000, c G-1 (GLA). Ultimately, however, she found that the intention behind the changes to the mark-up regime was to advantage Alberta craft brewers, constituting a barrier to interprovincial trade under the analytical framework for s 121 established earlier this year in R v Comeau, 2018 SCC 15 (CanLII) (Comeau).

In this post, I will review the Court’s decision and comment on its significance, both with respect to the mark-ups’ classification, and in cementing recent s 121 jurisprudence.

Continue reading →

Not Your Grandfather’s Cooperative Federalism: Constitutional Themes at the Supreme Court Hearing of Redwater

By: Scott Carrière

PDF Version: Not Your Grandfather’s Cooperative Federalism: Constitutional Themes at the Supreme Court Hearing of Redwater

Case Commented On: Orphan Well Association, et al v Grant Thornton Limited, et al, 2017 ABCA 124 (CanLII), leave granted 2017 CanLII 75023 (SCC), webcast available here, factums on appeal available here

Background

The Orphan Well Association and Alberta Energy Regulator’s action against a now-defunct oil and gas company’s bankruptcy trustee and primary creditor— commonly known as Redwater—was heard before the Supreme Court in February, and with the facts of the case disclosing a number of significant issues pertaining to the division of powers, the constitutional themes took centre stage throughout the oral and written submissions to the court. The arguments put forward by the parties and interveners represent significant considerations of Canada’s doctrinal approach to federalism as they pertain to contemporary natural resource governance. This post focuses on these substantial doctrinal issues put to the court by the parties and interveners, as it is likely that the case will be decided on narrower bases than the full suite of considerations put to the Court given its general restraint on constitutional matters that could represent a shift in the established doctrine dealing with the division of federal and provincial powers. Continue reading →