New Report Provides a Framework for Thinking about Environmental Risk in the Regulatory Context

By: Martin Olszynski

PDF Version: New Report Provides a Framework for Thinking about Environmental Risk in the Regulatory Context

Report Commented On: Responsible Risk: How putting a price on environmental risk makes disasters less likely

Anyone following the public debate with respect to carbon taxes in Canada will likely have heard of the Ecofiscal Commission – a policy shop operating at McGill University that for the past couple of years has been championing the use of carbon pricing as the most efficient way to tackle climate change. The Commission is not, however, a one-trick pony; it has also published reports on municipal water pricing, urban congestion, and biofuel subsidies, to name but a few.

In its most recent report, “Responsible Risk: How putting a price on environmental risk makes disasters less likely” (“Responsible Risk”), the Commission has set its sights on the environmental risks that inevitably accompany economic growth and development in Canada. In the report, the Commission makes the case for a more widespread use of “financial assurance” tools (e.g., bonds, insurance, industry funds) in order to more effectively and efficiently manage these risks.

As someone who researches and writes about environmental law and policy and who spent nearly half a dozen years working for a regulator, it is clear to me that this report should be mandatory reading for regulators, regulatory lawyers, and law students interested in environmental and natural resources law.

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The Great Divide on Standard of Review in Canadian Administrative Law

By: Shaun Fluker

PDF Version: The Great Divide on Standard of Review in Canadian Administrative Law

Case Commented On: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 (CanLII)

In an unusual move earlier this year, the Supreme Court of Canada announced it would consider the nature and scope of judicial review in a trilogy of upcoming appeals in Bell Canada, Vavilov, and National Football League, and specifically invited the parties to make submissions on standard of review. This open invitation to revisit the standard of review framework established by Dunsmuir v New Brunswick, 2008 SCC 9 did not come as a surprise to followers of Canadian administrative law who have observed a divide form amongst the current members of the Supreme Court (only one of whom – Justice Abella – was sitting when Dunsmuir was argued) on how to select the standard of review. This division is fully apparent in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 and is the subject of this post. Elysa Darling and Drew Lafond have recently analyzed the substance of the merits in Canadian Human Rights Commission on ABlawg here, and my post will focus only on the standard of review analysis by the Court in the case.

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A Religious Belief in Inequality: No Injunction Against Bill 24

By: Drew Yewchuk

PDF Version: A Religious Belief in Inequality: No Injunction Against Bill 24

Case Commented On: PT v Alberta, 2018 ABQB 496

PT v Alberta, is the decision of Justice Johnna Kubik on the interlocutory application by several parents and various private schools for an injunction against two provisions in Bill-24: An Act to Support Gay Straight Alliances (Bill 24). Their application to delay the legal effect of the challenged provisions until their constitutional challenge could be heard was denied.

Although PT v Alberta is a fairly brief decision determining an interlocutory application, it is interesting for several reasons: (1) counsel for the applicants was a non-profit entity, the Justice Centre for Constitutional Freedoms, who describes their mission as defending “the constitutional freedoms of Canadians through litigation and education” (JCCF); (2) the applicants brought experts whose evidence was in direct conflict with the legislated legal protections for sexuality and gender identity in Alberta; and (3) one of the religious beliefs that the applicants sought protection for was “that all sexual orientations are not equal” (at para 46). I begin with a summary of a decision, and then discuss these three issues in turn.

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A Fine Balance: Sentencing Suter in the Supreme Court of Canada

By: Lisa Ann Silver

PDF Version: A Fine Balance: Sentencing Suter in the Supreme Court of Canada

Case Commented On: R v Suter, 2018 SCC 34

Sentencing, Chief Justice Lamer tells us in R v M (CA), 1996 CanLII 230, [1996] 1 SCR 500, at paragraph 91, is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” This sentiment neatly encapsulates all that is sentencing: an ephemeral yet earthy task in which the sentencing judge envelopes themself in a venture engaging both heart and mind. It is a “delicate” process, not heavy-handed, which requires a deft understanding of the human condition within the clarity of legal rules and principles. It is an art, not a science, meaning it is not a base computation or a tallying up of factors given pre-determined weight. Art also suggests artistic freedom and the discretionary nature we nurture in the sentencing process. But it is a determination statutorily mandated with well-defined rules and principles. There is wriggle room but just as we must stay within our lanes while driving, the sentencing judge must not over-correct or act erratically in imposing sentence. There are parameters. Some are, as indicated, statutory, as the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 of the Criminal Code).  Other parameters arise from the profound sense of community that envelopes us when a fellow member breaks our laws – the laws that reflect our fundamental values. We feel the impact of rule-breakers, but we also feel their angst. We all know, to some degree, we too could be similarly situated, both as victim or offender. It is at this tipping point where the sentencing judge’s task becomes even more delicate as it searches for the fair and just balancing of all which is required to impose a fit and appropriate sentence tailored to the circumstances of the offence and the background of the offender. It is this delicate or fine balancing which is at the core of the myriad of issues arising in the newest Supreme Court sentencing decision in R v Suter, 2018 SCC 34.

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Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

By: Scott Carrière

PDF Version: Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

Case Commented On: Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission, 2018 ABQB 476 (CanLII)

On June 19, 2018, the Alberta Court of Queen’s Bench (the Court) issued its decision in Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission (Steam Whistle), holding that two changes to mark-up rates on craft beer produced outside Alberta were ultra vires s 121 of the Constitution Act, 1867, 30 & 31 Vict, c 3 (the Constitution). The Alberta Gaming and Liquor Commission (AGLC) applies these mark-ups to retailers based on different classes of liquors. Prior to 2015, the same mark-up was applied to all craft beer produced anywhere in Canada. However, by 2016, the mark-up regime had differential rates applied to different regions, along with a grant for Alberta brewers to offset to the mark-up they would otherwise pay.

In assessing their pith and substance, Justice Gillian Marriot held the AGLC’s mark-up regime to be a valid scheme of proprietary charges under the Gaming and Liquor Act, RSA 2000, c G-1 (GLA). Ultimately, however, she found that the intention behind the changes to the mark-up regime was to advantage Alberta craft brewers, constituting a barrier to interprovincial trade under the analytical framework for s 121 established earlier this year in R v Comeau, 2018 SCC 15 (CanLII) (Comeau).

In this post, I will review the Court’s decision and comment on its significance, both with respect to the mark-ups’ classification, and in cementing recent s 121 jurisprudence.

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