ABLawg

By: Michael Nesbitt

PDF Version: Public Consultations, Anti-Terrorism Law, & Canada’s National Security Framework

Legislation Commented On: The Anti-Terrorism Act, 2015 SC 2015, c. 20

Report Commented On: The Government of Canada’s Our Rights, Our Security: National Security Green Paper, 2016

Sitting in opposition during 2014 through the beginning half of 2015, the Liberal Party of Canada chose to support the Conservative Government’s controversial Bill C-51, which became the Anti-Terrorism Act, 2015 on 18 June 2015 (SC 2015, c. 20). While the New Democratic Party voted against the Bill, the Liberals promised to pass, then revisit the Bill should they win the 2015 Federal Election. The Liberals did (win), and they have (begun to revisit Bill C-51).

The first step in this review has been the issuance of a “Green Paper” on Canada’s “National Security Framework” followed by a multi-pronged approach to public consultations on national security law and policy in Canada. There are a plethora of legal and policy considerations that deserve close governmental and public scrutiny during this process. However, this post focuses on the need to consult with and take seriously the views of Canada’s younger generations, including but not limited to law students, in deciding how best to balance Canadian’s rights with our security interests. In an effort to ensure these voices are heard, the Faculty of Law’s Terrorism Law & Reform lab will be posting on ABlawg in December a series of self-generated, student-authored legal and policy recommendations on three of the more controversial aspects of Canada’s national security framework. As a primer to this initiative, this post offers background on the Government’s consultative process as well as my remarks as prepared as testimony for the Standing Committee on Public Safety and National Security. These comments focus briefly on national security oversight and review and then in a little more detail on CSIS’s new “disruptive” powers as authorized by Bill C-51.

Bill 27: Financial Support for Renewable Electricity

By Nigel Bankes

On November 10, 2016

In Climate Change, Energy

By: Nigel Bankes

PDF Version: Bill 27: Financial Support for Renewable Electricity

Legislation Commented On: Bill 27, Renewable Electricity Act

Report Commented On: AESO, Renewable Electricity Program, Recommendations, dated May 2016, publicly released November 3, 2016

Press Release Commented On: Government of Alberta, Renewable electricity plan to create jobs, spur investment, November 3, 2016

Alberta’s Climate Leadership Plan (CLP) of November 2015 has four key planks:

Phasing out emissions from coal-generated electricity and developing more renewable energy
Implementing a new carbon price on greenhouse gas emissions
A legislated oil sands emission limit
Employing a new methane emission reduction plan

The government introduced legislation to implement an economy-wide carbon price in June (the Climate Leadership Implementation Act) and in the resumed session this fall (2016) it introduced first of all Bill 25: The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit (I commented on Bill 25 here) followed now by Bill 27, the Renewable Electricity Act to implement the second half of the first plank – developing more renewable energy. We have yet to see the detailed plans for phasing out coal generation.

No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

By Jonnette Watson Hamilton

On November 9, 2016

In Family, Property, Statutory Interpretation

By: Jonnette Watson Hamilton

PDF Version: No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

Case Commented On: Singh v Mangat, 2016 ABQB 349 (CanLII)

The issue in Singh v Mangat was one of priority: in what order were different groups entitled to sale proceeds. There were three types of claimants to the proceeds of the sale of a husband’s interest in the matrimonial home: the wife, who had brought a matrimonial property action and registered a certificate of lis pendens on the title to those lands; those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home before the wife’s certificate of lis pendens; and those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home after the wife’s certificate of lis pendens. The relative timing of the registrations created what Master A. R. Robertson, QC, called a “CLP sandwich” (at para 2). This case appears to be the first time an issue of priority in circumstances involving a “CLP sandwich” has come before the Alberta courts. Master Robertson analyzed a complex statutory interpretation issue in order to resolve the priorities issue in this decision (handed down in June 2016 but only added to the CanLII database in October). In a result that might surprise those accustomed to priorities under a Torrens land title system, he resolved the issue in favour of all of the judgment creditors, those registered before the certificate of lis pendens and those registered after.

The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

By Shaun Fluker

On November 8, 2016

In Administrative Law, Supreme Court of Canada

By: Shaun Fluker

PDF Version: The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

Case Commented On: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47

In 2015 the Alberta Court of Appeal issued two decisions which suggested the Court is attempting to curtail the presumption of deference in the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII) (Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Alberta? and Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII) which I commented on in Fundamental Legal Questions and Standard of Review in Alberta. The Supreme Court of Canada granted leave to appeal on both decisions, and on November 4 the Supreme Court issued its decision in Capilano: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 (Capilano) . The slim majority judgment (5-4) written by Justice Andromache Karakatsanis reverses the Court of Appeal on both its standard of review analysis and on the merits of the case by restoring the assessment review board decision. The result for standard of review analysis is that the presumption of deference to substantive decisions made by statutory tribunals should be alive and well in Alberta, but it should be noted there is a growing resistance to the presumption not only at the Alberta Court of Appeal but also within the Supreme Court of Canada.

The Saga of the Intoxication Defence Continues: Desjarlais and its Application to Uttering Threats

By Dylan Finlay

On November 4, 2016

In Criminal, Provincial Court

By: Dylan Finlay

PDF Version: The Saga of the Intoxication Defence Continues: Desjarlais and its Application to Uttering Threats

Case Commented On: R v Desjarlais, 2016 ABPC 182 (CanLII)

The defence of voluntary intoxication holds an awkward place in Canadian criminal law. Everyone who commits a crime must both do a guilty act (actus reus) and possess a guilty mind (mens rea) – even if that guilty mind is mere recklessness. But what if someone gets so drunk they commit a criminal act? What is the difference between someone who is sleepwalking and someone who is in a drunken stupor so severe they do not have the mental capacity comprehend their actions? Technically, neither hypothetical offender possesses a guilty mind.

True, voluntary intoxication is voluntary, sleepwalking is not. But legally, this distinction is irrelevant. The relevant mens rea is the mental state possessed at the time of the offence. Thus, public policy steps in. While sleepwalking is a defence to murder (see R v Parks, [1992] 2 SCR 871 (CanLII)), voluntary intoxication is not. However, the public policy argument against the intoxication defence does not strike such a chord if the offence becomes causing a disturbance.

Where does the law stand on the intoxication defence for uttering threats? (s. 264.1(1) of the Criminal Code). In July, Judge Allen of the Alberta Provincial Court in Edmonton produced a lengthy decision on this subject. The case is R v Desjarlais, 2016 ABPC 182 (CanLII). It involves a messy situation with multiple witnesses and plenty of credibility analysis; what is important for our purposes is that it involved a situation where the accused threatened to kill the complainant (para 88) while the accused was intoxicated to the point of being, in the words of different witnesses: “eight and one half to nine on a scale of ten,” or “temporarily insane” (para 97).