ABLawg

Case Commented On: R v Ryon, 2019 ABCA 36 CanLII

I have written at great length on the W(D) decision, R v W(D), 1991 CanLII 93 (SCC), and the extraordinary impact that case has on our justice system. In my recent article on the issue, aptly entitled The W(D) Revolution, (2018) 41:4 Man LJ 307, I posit that the decision reflects a watershed moment in the assessment of credibility in criminal cases. The case decision, outlining the analytical approach to be taken in assessing credibility when there are “two diametrically opposed versions” of events, revolutionized such assessments by providing a template for integrating factual determinations within the burden and standard of proof (see e.g. R v Avetysan, 2000 SCC 56 (CanLII) at para 28). The W(D) state of mind was one that ensured that the principles of fundamental justice as distilled through the special criminal burden and standard of proof, would remain front and centre in the ultimate determination of guilt or innocence of an accused. This is not to say that the path towards enlightenment has not been strewn with difficulties. To the contrary, to recognize the imperfections of the decision and to experience the twists and turns of W(D) as pronounced upon in future SCC decisions, is to appreciate the W(D) ethos even more. W(D) has needed reinterpretation and reaffirmation throughout the decades since its release, but the question of whether it needed a reconsideration was at issue in the recent decision from the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (CanLII).

Justice Romaine Weighs in on ‘lifting the stay’ in the Context of Replacement of Operator Provisions in Oil and Gas Joint Venture Agreements

By Nigel Bankes

On January 31, 2019

In Uncategorized

By: Nigel Bankes

PDF Version: Justice Romaine Weighs in on ‘lifting the stay’ in the Context of Replacement of Operator Provisions in Oil and Gas Joint Venture Agreements

Case Commented On: Alberta Energy Regulator v Lexin Resources Ltd, 2019 ABQB 23 (CanLII)

In a crisp and well-reasoned judgment, Justice Barbara Romaine, one of the acknowledged bankruptcy experts on the Court of Queen’s Bench, has weighed in on the question of ‘lifting the stay’ in the context of replacement of operator provisions in joint venture agreements. While she does not rule out lifting the stay in appropriate cases, Justice Romaine emphasizes that this is an exceptional remedy. As such the decision may serve to curb what might have been a growing enthusiasm on the part of non-operators to think that it was easy to lift a stay.

UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

By Elysa Darling

On January 29, 2019

In Aboriginal, Human Rights, International Law

By: Elysa Darling and Drew Lafond

PDF Version: UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

Decision Commented On: Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act and is not intended to carry any derogatory connotations in this post.

Introduction

In a decision released on January 14, 2019, the United Nations Human Rights Committee (UNHRC) determined that the Government of Canada violated the International Covenant on Civil and Political Rights (ICCPR) by discriminating against First Nations women and their descendants through Status requirements under the Indian Act, RSC 1985, c I-5. The decision was one that the claimants, Sharon McIvor and her son Jacob Grismer, had been waiting for more than a decade since their case was first heard by the British Columbia Superior Court in 2007.

To understand McIvor and Grismer’s complaint to the UNHRC and the litigation that preceded it, a review of their family lineage and the many amendments made to the Indian Act will be reviewed in this post. We will also briefly review the Status provisions of the Indian Act and the litigation and legislative amendments that have resulted from claims of sex discrimination under the Act, review McIvor and Grismer’s litigation, and summarize the arguments made to the UNHRC and the Committee’s final decision.

Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

By Shaun Fluker

On January 21, 2019

In Protection of Species

By: Shaun Fluker and Drew Yewchuk

PDF Version: Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

Policy Change Commented On: Alberta Orphan Black Bear Cub Rehabilitation Protocol, April 2018

In April 2018, Alberta Environment and Parks revised its wildlife rehabilitation policy to allow for the rehabilitation of black bears less than one year old. This change allows for the rehabilitation of orphaned black bear cubs in Alberta, an activity that has been prohibited since 2010 when Alberta implemented a policy change that heavily limited wildlife rehabilitation. Under the new policy, orphaned or injured black bear cubs and several other species have typically been euthanized by wildlife officers. Injured or orphaned wildlife with the good fortune of being found in the national parks might be spared this fate because of federal policy which is more accommodating to the interests of wildlife. For example, orphan bear cubs found in a washroom in Banff were sent to be rehabilitated outside of the province. The Public Interest Law Clinic at the University of Calgary had been working with a person interested in challenging Alberta’s prohibitive wildlife rehabilitation policy, and after the policy change for orphaned black bear cubs in April of 2018, we filed a freedom of information request under the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) seeking to learn more about this policy shift. In December 2018 we received the disclosure materials, and this post explains what we learned as part of our ongoing series about using the access to information process in Alberta.

Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

By Hugh Benevides

On January 17, 2019

In Environmental, Natural Resources

By: Hugh Benevides

PDF Version: Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

Legislation Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

Much debate has occurred in recent months about Bill C-69, the federal government’s attempt to make good on election promises to strengthen and restore public trust in environmental decision-making. (Martin Olszynski addressed some of the problematic claims last September; other ABlawg posts have looked at various aspects of the Bill). As further set out below, the critics and opponents of Bill C-69, which was referred to a Senate committee in December following Second Reading, refuse to acknowledge that the proposed Impact Assessment Act will give Canadians the chance to have greater input into proposals affecting their communities, and to better trust decisions about projects like mines, dams—and yes, pipelines. It promises to do so by ensuring that people who care about a proposed development can participate meaningfully in its assessment, with a view to more lasting environmental, economic, social and health benefits.

Why Reconsider W(D)?

Justice Romaine Weighs in on ‘lifting the stay’ in the Context of Replacement of Operator Provisions in Oil and Gas Joint Venture Agreements

UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details