Category: Constitutional Page 34 of 72

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:

such statements or the information contained in them are inadmissible in criminal proceedings arising out of a car accident; and
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.

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

By Nigel Bankes

On September 11, 2015

In Aboriginal, Constitutional, Environmental, Oil & Gas, Water Law

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.

Why We Should Care About Magna Carta

By Ian Holloway

On June 19, 2015

In Constitutional

By: Ian Holloway

PDF Version: Why We Should Care About Magna Carta

I write this just as I’m returning to Canada from Runnymede, England. The Queen was there, as were the Duke of Edinburgh, the Princess Royal, and Prince William. The five of us — along with a thousand others from all over the world — were gathered to commemorate, and to celebrate, the 800th anniversary of the sealing of Magna Carta by King John on June 15, 1215.

So what’s the big deal? Why is it that a document that, as a British civil servant once described it, is nothing more than an archaic piece of paper with no intrinsic value, should attract such attention?

After all, while bits of it continue to have the force of law, the majority of Magna Carta’s provisions reflect little more than an incoherent jumble of individual grievances from King John’s nobles. Moreover, John himself showed his disdain by reneging on the deal a mere nine weeks later. And the Pope formally nullified it as soon as he became aware of its terms.

Oliver Cromwell — someone not normally known for his sense of humour — called it “Magna Farta.”

So why were a thousand of us assembled in an English country meadow this morning?

Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

By Nigel Bankes

On June 12, 2015

In Constitutional, Energy

By: Nigel Bankes

PDF Version: Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

Case Commented On: Togstad v Alberta (Surface Rights Board), 2015 ABCA 192

In a completely predictable decision the Court of Appeal has applied the doctrine of collateral attack to dismiss the efforts of landowners to have a second kick at the can by seeking to question the constitutional basis for provincial regulation of a proposed transmission line before the Surface Rights Board.

This case, in fact, two cases, Togstad on appeal from 2014 ABQB 485 and an appeal from Kure v Alberta (Surface Rights Board) 2014 ABQB 572, involves the longstanding efforts of the provincial government to strengthen the transmission grid in the province through the construction of two new major transmission lines known as WATL and EATL – Western Alberta Transmission Line and the Eastern Alberta Transmission Line. These projects have been, to say the least, controversial. Along the way the Energy and Utilities Board bumped into its spy scandal and was subsequently dissolved; the province introduced the so-called critical infrastructure legislation to definitively and authoritatively resolve the question of “need” (SA 2009, c.44); and there was litigation, lots of it, on everything from allegations of bias (Lavesta Area Group v Alberta (Energy and Utilities Board), 2011 ABCA 108) to valiant efforts to argue that the Alberta Utilities Commission (AUC) still had to establish need as part of its assessment of public interest and notwithstanding the critical infrastructure legislation: Shaw v Alberta (Utilities Commission), 2012 ABCA 378, albeit involving the Heartland project rather than WATL or EATL. And then, in the hearings on the merits in WATL, the AUC carefully examined (and dismissed, AUC Decision 2012-327) landowner arguments to the effect that the lines were interprovincial undertakings that should be subject to federal regulation.

The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

By Jennifer Koshan

On May 29, 2015

In Aboriginal, Constitutional

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

Case Commented On: Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII)

The Supreme Court released its decision in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 yesterday. We commented on the Federal Court of Appeal decision in the case here. Taypotat was one of two appeals concerning adverse effects discrimination under section 15(1) of the Charter heard by the Supreme Court in October 2014, the other being Carter v Canada (Attorney General), 2015 SCC 5. The Supreme Court declined to rule on the section 15(1) issue in Carter (see here; see also the Court’s decision not to address section 15 in last week’s ruling in R v Kokopenace, 2015 SCC 28 (CanLII), a case involving the representativeness of juries for Aboriginal accused persons). However, the Court did not have the option of avoiding section 15 in Taypotat. In a unanimous judgment written by Justice Abella, the Court held that the adverse effects claim in Taypotat was not established by the evidence.