ABLawg

By: Sharon Mascher

PDF Version: Triggering Federal Impact Assessment: Lessons from Down-Under

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

On April 5, 2017, the Expert Panel on the Review of Federal Environmental Assessment Processes released a report entitled Building Common Ground: A New Vision for Impact Assessment in Canada proposing major reforms to Canada’s federal environmental assessment processes. Professor Arlene Kwasniak has provided some background and an overview of key aspects of the report. Professor Shaun Fluker and Drew Yewchuk have commented on the Panel’s response to concerns raised by the University of Calgary’s Public Interest Law Clinic on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter in relation to discretion, transparency and accountability.

The focus of this post is to comment on the Panel’s recommendations relating to the first of three fundamental questions it considered – what should require federal impact assessment (IA)? In answering this question, the Expert Panel reached the overall conclusion that “[t]here should be an appropriate threshold for effects on federal interests so that a trivial impact does not trigger IA. This threshold, defined as a consequential impact, should be tied to the sustainability framework.” To achieve this outcome, the Expert Panel recommends three different triggering mechanisms for projects, plans and policies clearly linked to matters of federal interest. The Expert Panel notes that Australia takes a similar approach, with environmental assessments required when a proposed action is “likely to have a significant impact on a matter of national environmental significance.” This post explores the similarities and differences between the Panel’s recommendations and the approach taken in Australia to ask what lessons can be learned from the Australian experience.

“Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

By Jonnette Watson Hamilton

On May 26, 2017

In Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: “Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

Cases Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII) and Shearer v Shields, 2017 ABPC 108 (CanLII)

A landlord can dispose of the belongings that a residential tenant has left behind at the rented premises if those belongings meet the definition of “abandoned goods” in section 31(1) of the Residential Tenancies Act, SA 2004, c R-17.1. That section says “abandoned goods” are goods left at residential premises by a tenant who has either abandoned the premises or has vacated the premises after their tenancy has expired or been terminated. Two recent Provincial Court judgments discuss whether a tenant’s belongings were “abandoned goods” or not. In both judgments, the landlords were found to have acted rashly and the tenants were found to have not abandoned their belongings. However, only one of the judgments considers whether the belongings were “abandoned goods” by paying attention to the definition in section 31(1) of the Act. That definition requires that the focus be on the premises and the tenant’s legal relationship to those premises, and not on the belongings themselves.

The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

By Lisa Silver

On May 25, 2017

In Criminal

By: Lisa Silver

PDF Version: The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Case Commented On: Alberta (Health Services) v Bhanji, 2017 ABCA 126 (CanLII)

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence 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. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers. The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority.

Recent Developments in Domestic Violence Law and Policy in Alberta

By Jennifer Koshan

On May 24, 2017

In Family, Labour/Employment, Limitations, State Responses to Violence

By: Jennifer Koshan

PDF Version: Recent Developments in Domestic Violence Law and Policy in Alberta

Legislation and Report Commented On: Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence; Family Violence Death Review Committee Annual Report 2015-2016

Statistics Canada’s most recent report on family violence indicates that although the rate of family violence reported to the police was stable across the country overall from 2014 to 2015, Alberta experienced a 2% increase in the rate of family violence during this period (Family violence in Canada: A statistical profile, 2015 at 37). Shelters in Alberta also report an increase in the number of calls to their crisis lines and for shelter space since 2014. At the same time, results from Canada’s 2014 General Social Survey showed that 7/10 self-reported victims of spousal violence did not report the violence to police, often because they viewed the abuse as a “private matter” (Family violence in Canada: A statistical profile, 2014 at 10).

Within this context, two recent developments in Alberta merit discussion. Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, removes the limitation period that would otherwise restrict the time within which civil claims for damages can be commenced in domestic violence and sexual assault cases, and the Family Violence Death Review Committee’s 2015-2016 Annual Report makes several recommendations for changes to Alberta law and policy to better deal with family violence issues.

Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

By Amy Matychuk

On May 19, 2017

In Constitutional, Criminal, Evidence

By: Amy Matychuk

PDF Version: Ewanchuk Continues to Treat Habeas Corpus as an All-Purpose Remedy

Case Commented On: Ewanchuk v Canada (Parole Board), 2017 ABCA 145 (CanLII)

On May 16, 2017, the Alberta Court of Appeal (ABCA) released a decision dismissing a habeas corpus application with certiorari in aid from Stephen Brian Ewanchuk, who just this week was featured on ABlawg for being declared a vexatious litigant in the Alberta Court of Queen’s Bench (ABQB) on a different application for habeas corpus. As Jonnette Watson Hamilton noted in that post, this is the same Ewanchuk whose sexual assault conviction was the subject of an oft-cited Supreme Court decision. He is now 68 years old and since 2007 has been serving his fifth sentence for sexual assault, this time on a minor. In the current habeas corpus application at the ABCA, he challenged the Parole Board of Canada’s April 25, 2014 decision (and the subsequent Nov 12, 2015 ABQB decision) not to provide relief on his statutory release date, but instead to require him to serve out the remainder of his sentence. He will be released on February 21, 2018.