ABLawg

By: Alice Woolley

PDF Version: Law and Morality: Reflections on the Angela Cardinal Case

What constrains lawyer conduct? I don’t mean in terms of positive law – i.e., the codes of conduct or the decisions of the court. I mean at its source – what is the bottom line restriction on a lawyer’s professional role? I’ve been thinking about this question a great deal following the story of Angela Cardinal– the sexual assault victim who was incarcerated for 5 nights to ensure her testimony in a preliminary inquiry (trial judgment here; media reports here and here). If what happened to Angela Cardinal was wrong (and I think it’s hard to argue that it wasn’t), and if what happened to her involved lawyers (which it did), then how can we identify the constraints on lawyer conduct so as to help them not to do such things?

National Security, Bill C-59, and CSIS’s Continuing Power to Act Disruptively in Violation of the Charter

By Michael Nesbitt

On June 23, 2017

In Terrorism and Security

By: Michael Nesbitt

PDF Version: National Security, Bill C-59, and CSIS’s Continuing Power to Act Disruptively in Violation of the Charter

Legislation Commented On: Bill C-59, An Act Respecting National Security Matters, 2017; Anti-terrorism Act, 2015, SC 2015, c 20

Government Report Commented On: Protecting Canadians and their Rights: A New Road Map for Canada’s National Security, SECU Committee Report, May 2017, 42^ndParliament, 1^st Session.

Introduction/Overview of Bill C-59 & CSIS’s Disruptive Powers

On Tuesday, June 21, 2017, right before Parliament rose for the summer break, the Liberal government released its long-awaited national security legislative update, marketed in part as a response to the Conservative government’s controversial Anti-terrorism Act (2015), known as Bill C-51. The Liberal government’s response came in the form of Bill C-59 and not only did it address many—though not all—of the perceived issues with Bill C-51, it went much farther afield. In general, we are all better off for that.

I will provide more detailed thoughts on Bill C-59 as a whole in short order, after I collect my thoughts. But first I want to address one issue that I see as potentially very controversial and—if Twitter can be trusted, an admittedly dubious proposition—that remains one of the least understood elements of the new (and old) anti-terror legislation: CSIS’s powers under both Bills to act disruptively (physically) to counter threats, including taking actions in breach of the Charter or of other Canadian laws.

Announcing a Summer Discussion Series on Recent Developments in Energy and Environmental Law

By Martin Olszynski

On June 22, 2017

In Energy, Environmental

By: Martin Olszynski and Nigel Bankes

PDF Version: Announcing a Summer Discussion Series on Recent Developments in Energy and Environmental Law

Event Commented On: 2017 Energy & Environmental Law Summer Discussion Series

The past year has been relatively busy from a legislative and policy reform perspective, especially with respect to Canadian energy and environmental law. At the federal level, all of the expert panels and parliamentary committees tasked by the current Liberal government with reviewing the Harper-era changes to Canada’s energy and environmental law regime have now delivered their reports: Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future (regarding the National Energy Board); Building Common Ground: A New Vision for Impact Assessment in Canada (regarding federal environmental assessment processes); Review of changes made in 2012 to the Fisheries Act: enhancing the protection of fish and fish habitat and the management of Canadian fisheries; and A Study of the Navigation Protection Act. There has also been important litigation at the provincial level, especially the Alberta Court of Appeal’s recent decision in the Redwater litigation: Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124 (CanLII).

While most of these developments have been discussed in this forum (see e.g. posts by Kwasniak, Fluker and Yewchuk, Olszynski, and Mascher with respect to environmental assessment and Bankes on the NEB report and Redwater), the Faculty and the Canadian Institute of Resources Law have decided that it would also be interesting to host a series of panel discussions over the summer to further analyze the issues.

Let’s Shine Some Light into Creative Environmental Sentencing

By Shaun Fluker

On June 21, 2017

In Environmental, Provincial Court

By: Shaun Fluker

PDF Version: Let’s Shine Some Light into Creative Environmental Sentencing

Case Commented On: R v Canadian National Railway Company sentencing order dated June 2, 2017 (ABPC)

On June 12 the Alberta government announced that Canadian National Railway Company (CN Rail) had pled guilty to two offences under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA) with respect to the release of hydrocarbons that occurred in April 2015. The penalty imposed on CN Rail was a total of $125,000, consisting of $15,000 in fines and a $110,000 payment in funds directed to the Edmonton and Area Land Trust to support conservation in the Edmonton region with a focus on aquatic and riparian habitat. This payment of funds to the Land Trust is known as a creative environmental sentence, and this post asks some critical questions about how this increasingly popular form of punishment for environmental offences is being implemented in Alberta.

“Majoritarian Blind Spot”? Drug Dependence and the Protection Against Employment Discrimination

By Jennifer Koshan

On June 20, 2017

In Human Rights, Labour/Employment, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: “Majoritarian Blind Spot”? Drug Dependence and the Protection Against Employment Discrimination

Case Commented On: Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII)

The Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII) on June 15, 2017. As noted in earlier ABlawg posts on the case (see here and here), the case involves a long-term employee whose job was terminated when, after a minor workplace accident, he tested positive for cocaine and admitted to having consumed the drug while off work a couple of days prior. Elk Valley Coal, the employer, had a policy providing some lenience for employees who disclosed drug or alcohol addictions and sought treatment, failing which its practice was to automatically terminate employment where an employee tested positive for drugs or alcohol following a workplace accident. Stewart did not avail himself of this policy because he did not realize he had an addiction until after the accident. He alleged that his termination amounted to discrimination on the basis of disability contrary to section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5, and that he had not been reasonably accommodated by Elk Valley. Stewart’s claim was dismissed by the Alberta Human Rights Tribunal, a decision upheld by the Court of Queen’s Bench and a majority of the Alberta Court of Appeal. A majority of the Supreme Court of Canada (per Chief Justice McLachlin) upheld as reasonable the Tribunal decision that there was no discrimination. Justices Moldaver and Wagner disagreed with this conclusion but concurred in the result, finding that the Tribunal was reasonable in concluding that Elk Valley had fulfilled its duty to accommodate. Justice Gascon dissented, characterizing the Tribunal’s decisions on both discrimination and the duty to accommodate as unreasonable.

I find Justice Gascon’s decision most persuasive and most in keeping with a broad, generous approach to interpreting human rights legislation. His remark (at para 59) that drug-dependent persons can “easily be caught in a majoritarian blind spot in the discrimination discourse” was evident in the decisions of the Tribunal and courts below, and in the reasons of the majority of the Supreme Court, as I will elaborate on in this post.