Category: Statutory Interpretation Page 2 of 4

Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act

On December 6, 2022

In Constitutional, Law Reform, Statutory Interpretation

By: Martin Olszynski and Nigel Bankes

Legislation Commented on: Bill 1 – Alberta Sovereignty Within a United Canada Act

PDF Version: Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act

On Tuesday, November 29, 2022, the provincial government unveiled its highly anticipated and controversial “Alberta Sovereignty Within a United Canada Act” (Bill 1). The promise to introduce some form of sovereignty legislation was the key plank of Premier Danielle Smith’s UCP leadership campaign this past summer and fall. An initial ABlawg post that drew from the general contours of the legislation, as found in a 2021 policy document called the “Free Alberta Strategy,” expressed concerns that “the clearest and most immediate effects of such ideas is not sovereignty, nor changes to the confederation bargain, but rather a damaging blow to the rule of law and the basic building blocks of democratic governance.”

Alberta’s Vaccine Passport System: The Good, the Bad, and the Ugly

By Lorian Hardcastle

On September 20, 2021

In COVID-19, Statutory Interpretation

By: Lorian Hardcastle and Shaun Fluker

PDF Version: Alberta’s Vaccine Passport System: The Good, the Bad, and the Ugly

Matters Commented On: Chief Medical Officer of Health (CMOH) Order 42-2021 and CMOH Order 43-2021

Good governance practices by the executive branch in how it addresses COVID-19 have largely been absent throughout the pandemic across Canada, but surely we have hit a new low in Alberta with what transpired last week. Facing criticism from the public, pleas from health care professionals, and a health care system straining under the increasing number of hospitalizations, the Premier reappeared at a September 15 press conference after a lengthy hiatus, along with the Minister of Health, the Chief Medical Officer of Health, and the CEO of Alberta Health Services. The Premier was questioned about the termination of public health restrictions in early July and the decision to move towards treating COVID-19 as endemic by largely eliminating basic public health measures like testing, tracing, and isolating (a decision that the government later backpedalled on). Although the Premier was initially apologetic for ending public health restrictions in an effort to enjoy the “best summer ever,” he later stated that “I don’t apologize for the decision to relax public health restrictions in the summer….” For her part, the CMOH has admitted that July’s decisions, which were based on her recommendations, put Alberta on its devastating fourth wave trajectory and has said that she “deeply” regrets contributing to the narrative that COVID-19 was over.

Kananaskis Conservation Pass

By Shaun Fluker

On June 7, 2021

In Environmental, Protection of Spaces, Statutory Interpretation

By: Shaun Fluker

PDF Version: Kananaskis Conservation Pass

Ministerial Order Commented On: Ministerial Order 51/2021 (Environment and Parks)

On May 27, the Minister of Environment and Parks (Jason Nixon) issued Ministerial Order 51/2021 to impose a fee to access Kananaskis Country. This new access fee applies to many popular parks and recreational areas in Kananaskis Country such as West Bragg Creek, Barrier Lake, Elbow Falls, Evans Thomas Creek, Spray Lakes, and Highwood Pass. Payment of the fee provides the purchaser with a Kananaskis Conservation Pass. The geographic scope of the fee requirement is curiously both over and under inclusive in relation to its name. The boundary map on the Alberta parks website (and attached to Ministerial Order 51/2021) indicates the access fee applies to areas outside of what is commonly known as Kananaskis Country (e.g. portions of the Bow Valley Wildland Park east of Canmore, including Grotto Canyon and Mount Yamnuska) and – as was pointed out by Nathan Schmidt (JD 2021) here – the fee does not apply to the McLean Creek area which is clearly within Kananaskis Country. This post critically examines the legislative changes made to implement the Kananaskis Conservation Pass requirement.

Distracted Driving and the Traffic Safety Act

By Shaun Fluker

On April 2, 2019

In Criminal, Statutory Interpretation

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.

What Precisely Is A Regulatory Offence?

By Lisa Silver

On September 26, 2018

In Criminal, Statutory Interpretation

By: Lisa Silver

PDF Version: What Precisely Is A Regulatory Offence?

Case Commented On: R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273

This semester, I will start teaching 1Ls the first principles of criminal law. The main components of a crime, consisting of the familiar terms of actus reus or prohibited act and mens rea or fault element, will be the focus. These concepts, that every lawyer becomes intimately familiar with in law school, are figments of the common law imagination as actus reus and mens rea do not figure in the Criminal Code. The terms are derived from the Latin maxim, “actus non facit reum nisi mens sit rea,” which translates as “there is no guilty act without a guilty mind.” This stands for the proposition that the actus reus or prohibited act must coincide or happen at the same time as the mens rea or fault element. That maxim, however, fails to shed light on what those terms mean in law. Indeed, what exactly is a prohibited act or actus reus depends on the crime as described in the Criminal Code, and what exactly is the fault element or mens rea depends on a combination of common law presumptions, statutory interpretation, and case law. In other words, it’s complicated. Even more complex is the vision of these terms when applied to the regulatory or quasi-criminal context. In the recent decision of R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273 [Precision], the Alberta Court of Appeal attempts to provide clarity to these terms but in doing so may be creating more uncertainty.