ABLawg

Case Commented On: R v Zora, 2020 SCC 14 (CanLII)

It is never too soon to start thinking about the fall semester – in fact, I keep a running list of changes to make to my syllabus throughout the year. But this year, it seems that the newest Supreme Court of Canada decision in R v Zora, 2020 SCC 14 (CanLII), is going to be added to my syllabus in more places than one. Zora is a rare decision in which the Court does much with so little. I do not say this flippantly but seriously. On the surface, the issue of whether the offence of failure to comply with a release order under section 145(3) of the Criminal Code, RSC 1985, c C-46, requires objective or subjective mens rea seems trite. In fact, any 1L student might be asked to do such an analysis on a law school exam. Yet, Zora soars as Justice Sheilah Martin expertly analyzes the issue holistically, humanely and firmly anchored in the Charter. In doing so, Justice Martin, on behalf of the entire Court, is weaving together a narrative based on the histories of all those accused who have carried their bail conditions like dead weight, from the moment of arrest and right up to the courtroom doors. In this post, I will share 5 reasons why I am adding Zora to my 1L Crime syllabus.

Community Generation Projects in Alberta

By Nigel Bankes

On June 30, 2020

In Energy

By: Nigel Bankes

PDF Version: Community Generation Projects in Alberta

Regulation and Decisions Commented On: Small Scale Generation Regulation, Alta Reg 194/2018 and five decisions of the Alberta Utilities Commission (AUC): (1) AUC Decision 24857-D01-2020, Three Nations Energy GP Inc., Fort Chipewyan Solar Generation Facility (Phase 2), January 15, 2020; (2) AUC Decision 25236-D01-2020, Peavine Metis Settlement, 4.97-Megawatt Community Solar Power Plant, May 4, 2020; (3) AUC Decision 25459-D01-2020, Innisfail Solar Corporation, Innisfail Solar Project Time Extension and Community Generation Designation, May 21, 2020; (4) AUC Decision 24845-D04-2020, 2113260 Alberta Ltd., Community Generation Designation for Oyen Community Solar Project, June 17, 2020; and (5) AUC Decision 25471-D01-2020, 2181731 Alberta Ltd., Vulcan County Community Solar Project, June 25, 2020.

While the Kenney government declined to commit to new rounds of procurements to meet the target of 30% renewables by 2030 established by the Renewable Electricity Act, SA 2016, c R-16.5 (surprisingly, still in force), it has continued with a renewables incentive program provided for under the Small Scale Generation Regulation, Alta Reg 194/2018 (SSGR), including the concept of community generation projects designed to foster community sponsored renewables projects. This post examines the terms of that regulation as well as practice to date under the regulation.

The SSGR applies to three categories of small scale generation projects: (1) small scale projects (generally), (2) small scale community generation projects, and (3) small scale community generation projects that are located within an isolated community. The second and third categories are sub-sets of the first. None of these projects require any degree of self-supply in order to qualify as eligible projects.

A Family Lawyer’s Role is (Not) to Minimize Conflict

By Deanne Sowter

On June 29, 2020

In Family

By: Deanne Sowter

PDF Version: A Family Lawyer’s Role is (Not) to Minimize Conflict

Do family law lawyers have an obligation to minimize conflict? It seems obvious that given the stakes involved in family law matters, especially where there is family violence or children, that a lawyer’s role ought to include minimizing conflict; however, that idea is not as straightforward as it sounds. A family lawyer does have an obligation to advise her client on the impact of actions that inflate conflict; but a lawyer’s role properly understood, does not include an objective of minimizing conflict. This may seem like splitting hairs, but it is an important distinction.

Minimizing Conflict

The BC Family Law Act, SBC 2011, c 25 (BC FLA), Rules of Court, and guidance from the BC Law Society all aim to ensure family law proceedings minimize conflict. The BC FLA requires a court to “ensure that a proceeding under this Act is conducted in a manner that strives to minimize conflict, and if appropriate, promote cooperation, by the parties” (s 199(1)(b)(i)). An object of the BC Supreme Court Family Rules, BC Reg 169/2009 is to “help parties resolve the legal issues … in a way that will minimize conflict and promote cooperation between the parties” (R 1-3(1)(a)(ii)).

As an aside, the more time I spend with the BC FLA, the more I admire it. It really is a remarkable piece of legislation in the way it tries to guide families towards a less conflictual resolution to their dispute. The Act encourages parties to make their own decisions, and it aims for them to do so in a way that is less conflictual, responsive to family violence, and mindful of children’s interests. That said, Susan Boyd and Ruben Lindy found that BC courts are still relying on “problematic assumptions about family violence”, indicating that judicial and legal education is still falling short of effectively training the legal profession about family violence (see here at 45).

Supreme Court of Canada Finally Addresses Racial Profiling by Police

By Meryl Friedland

On June 26, 2020

In Constitutional, Criminal, Police, Supreme Court of Canada

By: Meryl Friedland

PDF Version: Supreme Court of Canada Finally Addresses Racial Profiling by Police

Cases Commented On: R v Le, 2019 SCC 34 (CanLII); R v Ahmad, 2020 SCC 11 (CanLII)

Nine minutes. This is the length of time that a police officer pressed a knee to the neck of George Floyd in the United States, while he lay on the ground immobilized, pleading, stating he couldn’t breathe. Nine minutes is a shockingly long time for Constable Chauvin to have exerted deadly force on a human being whom he had already rendered vulnerable. He could only do this without interference because of the power provided to him by the state. He could only do this because violent race-based state conduct is nothing new – far from it.

Our current Canadian protests expose the local experience of abusive and racist police tactics, both systemic and overt, against Black, Indigenous, and other racialized Canadians. These protests and the action urged by them have the potential to mobilize and enact change. The criminal justice system is reactionary, but it can still send a message denouncing unlawful conduct with the aim of preventing it from recurring. Recently, the Supreme Court of Canada has given us new tools in this fight, by addressing racial profiling twice in the past year in R v Le, 2019 SCC 34 (CanLII) and R v Ahmad, 2020 SCC 11 (CanLII). It has taken an exceptionally long time for our highest court to give us these tools. Although these judgments are a start, unquestionably there is still much work to be done, both in and out of the courts.

The Fair Deal Panel Report – and the British North America Act?

By Nigel Bankes

On June 25, 2020

In Constitutional

By: Nigel Bankes

PDF Version: The Fair Deal Panel Report – and the British North America Act?

Report Commented On: Fair Deal Panel, Report to Government, May 2020

The Kenney government has now released the Report of the Fair Deal Panel. It is not a good read. Many sections are poorly written and poorly reasoned. But since ABlawg is a blog on legal developments, let’s start with the title to this post and the decision of the authors to refer to Canada’s founding constitutional document as the British North America Act (BNA Act) of 1867.

While the authors concede (at 13) that the BNA Act is also known as the Constitution Act, 1867, they consistently refer to the BNA Act throughout the report. This is simply wrong, and it has been wrong since 1982 when Canada adopted the Constitution Act, 1982. That Act includes a Schedule entitled “Modernization of the Constitution” (emphasis added) which serves to rename elements of the Constitution. In particular, item 1 in the Schedule renames the BNA Act of 1867 the Constitution Act, 1867. It repeals the title to the old BNA Act.

This may seem, especially to non-lawyers, a relatively trivial point (perhaps the Panel members just made an elementary mistake, despite having two lawyers on the Panel), but perhaps there is something deeper going on. Perhaps the Panel, consciously or unconsciously, is hearkening back to the “golden” days of Empire and reaffirming the institution of the Monarchy; or perhaps the Panel is somehow questioning the legitimacy of the patriation of the Constitution and its (Pierre) Trudeau Charter? But none of that makes any sense. As the statue topplers remind us, there was nothing especially golden about the Empire, and there is one element of the 1982 constitutional package that Alberta continues to rely on heavily. That is the addition of section 92A, the resources amendment, to the Constitution Act, 1982. That amendment afforded the provinces greater powers over the regulation of oil and gas, electricity, and other natural resources.

Adding Zora to the 1L Crime Syllabus

Community Generation Projects in Alberta

A Family Lawyer’s Role is (Not) to Minimize Conflict

Supreme Court of Canada Finally Addresses Racial Profiling by Police

The Fair Deal Panel Report – and the British North America Act?