Filling the Gaps in the Federal Government Discussion Paper to Regain Public Trust in Federal Assessment

By: Arlene Kwasniak

PDF Version: Filling the Gaps in the Federal Government Discussion Paper to Regain Public Trust in Federal Assessment

Document Commented On: Environmental and Regulatory Reviews, Discussion Paper, Government of Canada, June 29, 2017

As explained in Professor Mascher’s July 13th ABlawg post the Government of Canada’s Discussion Paper outlines a series of “system-wide changes” the Government “is considering to strengthen Canada’s environmental assessment and regulatory processes”. The Discussion Paper remarks that the changes reflect the Government’s commitment to “deliver environmental assessment and regulatory processes that regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with Indigenous peoples, ensure good projects go ahead, and resources get to market” (at 3). The Government seeks comments on the Discussion Paper up to August 28, 2017. Comments may be provided on canada.ca/environmentalreviews. The Government also continues to consult on the law reform initiatives. It promises to table its legislative changes in fall 2017. Continue reading →

Buterman’s Appeal on the Issue of Settlements Dismissed: Was that Reasonable?

By: Linda McKay-Panos

PDF Version: Buterman’s Appeal on the Issue of Settlements Dismissed: Was that Reasonable?

Cases Commented On: Buterman v St. Albert Roman Catholic Separate School District No. 734, 2017 ABCA 196 (CanLII) (Buterman, ABCA); Buterman v Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734, 2016 ABQB 159 (CanLII) (Buterman, ABQB 2016)

Jan Buterman wants to have a public airing on the merits of his human rights complaint, but he seems to have been stymied again. The current matter involves two appeals of decisions of the Alberta Human Rights Tribunal (AHRT) on preliminary matters. Hearings on procedural aspects of Buterman’s case have been going on for eight years. The last two cases deal with procedural aspects of the case, and also focus on the standard of review of the procedural decisions made by the AHRT. Continue reading →

Unpacking R v Barton

By: Lisa A. Silver

PDF Version: Unpacking R v Barton

Case Commented On: R v Barton, 2017 ABCA 216 (CanLII)

 R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles. Continue reading →

CRILF Reviews Federal Divorce Data for Alberta

By: John-Paul Boyd

PDF Version: CRILF Reviews Federal Divorce Data for Alberta

Report Commented On: Analysis of Data from the Federal Justice Divorce File Review Study: Report on Findings for Alberta, 2011

The Department of Justice undertook the Federal Justice Divorce File Review Study in 2003, a project which wound up gathering enormous amounts of information about families going through divorce from courts across Canada. Three waves of data were collected, in 2005, 2008 and 2011. In 2015, the Canadian Research Institute for Law and the Family (CRILF) was granted access to the third tranche of data collected from the Calgary registry of the Alberta Court of Queen’s Bench.

The Institute has now released its report on that data, focusing on the timelines between separation and key events in the divorce process, parenting orders and child support orders, and analyzing the data by gender and the mention of family violence. Although the Institute’s findings are interesting, the data collected are not representative of divorce files in Canada, nor of divorce files in Alberta, for two main reasons. First, it appears that many of the 328 court files reviewed for the Study were uncontested desk order divorce applications; 75.9% of cases only had one order in the court file and 95.7% of those orders were final orders. Second, the coders who gathered the data were instructed to ensure that every third or fourth file they reviewed was “thicker,” thus oversampling files expected to have a higher degree of complexity. Continue reading →

“Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

By: Amy Matychuk

PDF Version: “Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

Case Commented On: McCargar v Canada, 2017 ABQB 416 (CanLII)

On May 5, 2017, Mr. McCargar, currently a federal prison inmate, filed a joint habeas corpus application in the Court of Queen’s Bench on behalf of himself and three other inmates. Habeas corpus is a constitutional and common law remedy for unlawful detention; however, it is usually invoked as an individual remedy because it assesses individual circumstances, so a joint application is unorthodox. Mr. McCargar also undertook to represent his fellow inmates (at their request) in court on the joint application. Justice John T. Henderson quickly disabused Mr. McCargar of the notion that he could act in the role of a lawyer, and in his judgment, described the narrow circumstances in which joint habeas corpus applications are appropriate, clarified the kinds of state treatment that merit the remedy of habeas corpus at all, declined to take jurisdiction of the application, and proposed new restrictions on habeas corpus hearings. He also ordered $1000 in costs against Mr. McCargar, found Mr. McCargar in prima facie contempt of court, and restricted his court filing activities pending a hearing on whether he should be declared a vexatious litigant. Continue reading →