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Being in the Moment: An Analysis of the Supreme Court of Canada’s Decision in R v Chung

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On April 8, 2020

In Criminal, Supreme Court of Canada

By: Lisa Silver

PDF Version: Being in the Moment: An Analysis of the Supreme Court of Canada’s Decision in R v Chung

Case Commented On: R v Chung, 2020 SCC 8 (Can LII)

Mindfulness, according to Jon Kabat-Zinn, the founder of MBSR (mindfulness-based stress reduction), is “the psychological process of bringing one’s attention to the internal and external experiences occurring in the present moment, which can be developed through the practice of meditation and other training.” Leaving aside how one can develop mindfulness, this concept of being “in the moment” has received much attention of late. Mindfulness is everywhere. It focuses on how we can bring more awareness to those reflexive and automatic activities we do throughout the day. This emotional and physical awareness allows us to better control the reactions we have to the stressors of life. Mindfulness also has a place in the legal world as seen in the recent Supreme Court of Canada decision in R v Chung, 2020 SCC 8 (Can LII). In that case, the Court, in essence, applies the process of mindfulness to the two issues under consideration; whether the Crown appeal against an acquittal raises a question of law and if so, whether the trial judge erred in applying the incorrect legal test required in assessing the objective mens rea of dangerous driving.

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Alberta Court of Appeal Restores Access to Habeas Corpus

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On April 7, 2020

In Constitutional, Criminal

By: Jonnette Watson Hamilton

PDF Version: Alberta Court of Appeal Restores Access to Habeas Corpus

Case Commented On: Wilcox v Alberta, 2020 ABCA 104 (CanLII) (Wilcox CA)

This Court of Appeal decision is significant for a number of reasons. Most importantly, the decision means that accused individuals in pre-trial solitary confinement in Alberta now have access to habeas corpus, the fastest way to challenge the legality of that confinement. So too do prisoners held in solitary confinement from the very beginning of their sentence. It is also significant because it criticizes the approach taken by the Court of Queen’s Bench to recent habeas corpus applications, including that of Mr. Wilcox. The appellate court found that the lower courts misunderstood precedents, cited cases for rules those cases did not support, ignored a 1985 Supreme Court of Canada decision, relied upon a case that had been overturned, found that an issue was not pled when it was, came to unreasonable conclusions, and made an unwarranted threat of personal costs against Mr. Wilcox’s counsel. In addition, the Court of Appeal clarified which habeas corpus pleadings are vexatious and abusive and which are not. It also vindicated the work of the Alberta Prison Justice Society and many of the individual prisoners’ rights lawyers in that group.

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The Effects of COVID-19 on the Health System: Legal and Ethical Tensions Part I

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On April 6, 2020

In COVID-19, Health Law, Human Rights

By: Lorian Hardcastle

PDF Version: The Effects of COVID-19 on the Health System: Legal and Ethical Tensions Part I

Matter Commented On: COVID-19 in Alberta and Canada

Introduction

Coronaviruses are a large family of viruses that affect humans and animals and, in some circumstances, can pass between species. Coronaviruses cause illnesses ranging from the common cold to SARS. A novel coronavirus, SARS-CoV-2, which causes COVID-19, was first identified in Wuhan, China in December 2019. There have been over 1,250,000 cases worldwide, over 68,000 of which have been fatal. Actual infection rates are likely much higher, given the limited number of tests conducted in many jurisdictions, the backlog in receiving test results, and the prevalence of false negative tests. As of April 5, there have been 1181 cases in Alberta, including 20 fatalities.

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COVID-19 and Retroactive Law-Making in the Public Health (Emergency Powers) Amendment Act (Alberta)

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On April 6, 2020

In COVID-19, Health Law

By: Shaun Fluker

PDF Version: COVID-19 and Retroactive Law-Making in the Public Health (Emergency Powers) Amendment Act (Alberta)

Legislation Commented On: Public Health (Emergency Powers) Amendment Act, SA 2020 c 5

On April 2, Alberta amended provisions governing emergency powers under the Public Health Act, RSA 2000, c P-37. This post discusses amendments made to section 52.1, and also comments on their retroactive effect. I’ve previously commented here and here on the exercise of these emergency powers to address COVID-19.

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More Competition For Underground Disposal Space

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On April 3, 2020

In Energy, Environmental

By: Nigel Bankes

PDF Version: More Competition For Underground Disposal Space

Decisions Commented On: 2020 ABAER 005, Pure Environmental Waste Management Ltd. Applications for the Hangingstone Project February 27, 2020 and 2020 ABAER 004, Pure Environmental Waste Management Ltd. Regulatory Appeal of Approval WM 211 for Pure Environmental Waste Management Ltd.’s Hangingstone Facility February 27, 2020

Conventional and non-conventional oil and gas operations frequently seek to dispose of liquid oilfield waste in underground formations that have suitable injectivity and sealing properties. Not all formations are suitable for injection purposes and even those that are suitable may have limited capacity, especially where the characteristics of the formation limit opportunities for pressure leakoff. Locally limited capacity or scarcity may lead to competition for the available disposal capacity.

These two decisions (and especially 2020 ABAER 005) address the licensing of disposal wells in such a competitive setting. These are not the first such examples we have seen in Alberta. I commented on an earlier AER decision (2014) on a disposal well application here. See also Bankes, “Disputes between the owners of different sub-surface resources” in Don Zillman et al (eds), The Law of Energy Underground (Oxford University Press, 2014) p 433.

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