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By: Jennifer Koshan

Matter Commented On: Standing Committee on Justice and Human Rights, Study of Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), 44th Parliament, 1st session

PDF Version: Bill C-332 and the Criminalization of Coercive Control

On February 26, 2024, I appeared before the federal Standing Committee on Justice and Human Rights (JUST), which is currently studying Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct).

After hearing from a number of witnesses speaking in favour of, and cautioning against, the criminalization of coercive control (as well as taking positions in between), JUST begins its clause-by-clause study of the Bill today. This post sets out my prepared five-minute opening remarks to JUST, which were followed by a question and answer period. A recording of the hearing is available here and the minutes are available here. In addition, I submitted a 10-page written brief to JUST with colleagues Janet Mosher, Shushanna Harris, and Wanda Wiegers that is available here.

‘Negative Population Growth’ for Boreal Caribou in Alberta

By Shaun Fluker

On March 15, 2024

In Animal Law, Environmental, Protection of Species

By: Shaun Fluker

Report Commented On: First Report on the implementation of the Section 11 agreement for the conservation and recovery of the woodland caribou in Alberta (January 19, 2024)

PDF Version: ‘Negative Population Growth’ for Boreal Caribou in Alberta

In late January, Alberta issued the first Report on implementation of the Agreement for the conservation and recovery of the Woodland Caribou in Alberta, signed by Alberta and Canada under section 11 of the Species at Risk Act, SC 2002, c 29 [SARA] in October 2020. Commentators have noted that the Report reveals little progress by Alberta on protecting what is left of boreal caribou in this province. This criticism is certainly warranted, however the commitments made by Alberta in this Agreement will never result in progress towards halting the march of caribou towards extirpation (see “Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou”). What the Report does make transparent is: (1) Alberta continues to authorize the destruction of caribou habitat despite saying publicly that the government is committed to achieving population recovery; and (2) Alberta’s only real action plan to save caribou is to kill wolves.

Alphabow’s Regulatory Appeal: The AER Hearing Panel Misunderstood Their Job

By Drew Yewchuk

On March 11, 2024

In Administrative Law, Appellate Practice, Energy, Oil & Gas

By: Drew Yewchuk

Decision Commented on: Alphabow Energy Ltd: Regulatory Appeals of AER Orders (Regulatory Appeals 1943516 and 1943521), 2024 ABAER 001 (Alphabow)

PDF Version: Alphabow’s Regulatory Appeal: The AER Hearing Panel Misunderstood Their Job

This is a comment on an Alberta Energy Regulator (AER) hearing panel decision following a regulatory appeal of enforcement action against a company that was failing to meet the AER’s expectations for regulatory compliance.

Because of an administrative law mistake by the AER hearing panel, the decision is not what it should be. The AER’s handling of financially troubled corporations with large closure liabilities, significant unpaid debts, compliance troubles, and financial problems is a multi-billion dollar policy problem for Alberta. The decision should have assessed the AER’s policy approach to one of these companies, but the hearing panel misunderstood their role and assessed only procedural fairness and ‘reasonableness’ in the restricted sense that word applies on judicial review. As a result, the decision is less interesting than it should be, since it only finds that what the AER did was legal and says nothing about whether it was good policy or in the public interest.

The Online Harms Bill – Part 1 – Why We Need Legislation

By Emily Laidlaw

On March 6, 2024

In Internet Law, Law Reform

By: Emily Laidlaw

Matter Commented On: Bill C-63, An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts, 1^st Sess, 44^th Parl, 2024 (Online Harms Bill)

PDF Version: The Online Harms Bill – Part 1 – Why We Need Legislation

This is the first in a series of posts that will unpack the Online Harms Bill C-63. In this first post, I will explain how and why we got here, as there is a significant amount of misunderstanding about what this Bill is about and why we might need it before the merits of this Bill are examined. It also important to contextualize the Bill within the law of intermediary liability, the law that applies to technology companies that facilitate transactions between third parties. Unlike many other jurisdictions, Canada operates in a relative legal vacuum in this space.

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

By Nigel Bankes

On March 5, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

The Children, Youth and Families Reference is a decision on the “Indians” head of section 91(24), a head that the Supreme Court of Canada has reframed as “Indigeneity, that is, Indigenous peoples as Indigenous peoples” (Reference at para 94). The Court takes a broad view of the scope of this head of federal power. It also reminds us that the double aspect doctrine means that so long as federal legislation is firmly connected to a federal head of power it can compete with and trump provincial legislation grounded on provincial heads of power addressing the same subject area (e.g. child and family welfare), so long as the federal legislation is addressed to the federal aspect of that subject matter. Furthermore, the Reference makes it clear that Parliament may accord the laws of Indigenous Nations the authority of federal law while the Nations await judicial confirmation that section 35 of the Constitution Act, 1982 protects a broad inherent power of Indigenous self-government. This implies that, provided that the federal government has the necessary legal or political motivation, it has the means to back-out provincial laws and create space for Indigenous self-government on a broad range of matters that can be connected to Indigenous peoples as Indigenous peoples.