ABLawg

By: Joshua Sealy-Harrington

PDF Version: Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

Case Commented On: R v Ghomeshi, 2016 ONCJ 155

On March 24, 2016, Justice Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of five criminal charges: four counts of sexual assault and one count of overcoming resistance to sexual assault by choking. The judgment, like the original controversy surrounding his CBC dismissal and related sexual assault allegations, has polarized Canadian discourse on sexual assault – with reviews of Justice Horkins’ reasons ranging from a “total masterclass in misogynist, arrogant windbaggery” to a “masterful job of analyzing the evidence, identifying the weaknesses in the prosecution’s case and coming to the right decision.”

It is undeniable that the Canadian administration of sexual assault law must be improved. But, in pursuing that improvement, it is critical to isolate where this administration truly fails, and how best to address those failures in a manner that properly balances the interests of the accused and victims of sexual assault. The Ghomeshi judgment, which contains both strengths and weaknesses, provides a unique opportunity to deconstruct our administration of sexual assault laws, note its flaws (and strengths), and begin developing a constructive strategy moving forward. This balanced approach is most likely to manifest in targeted reforms that will actually enhance the administration of justice and provide greater protection and support to victims of sexual assault.

Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

By Shaun Fluker

On March 30, 2016

In Administrative Law

By: Shaun Fluker

PDF Version: Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138

The substance of the dispute in this decision is whether a prohibition enacted by the Alberta College of Pharmacists is lawful. Specifically, in April 2014 the College voted to amend its Code of Ethics to prohibit pharmacists from providing inducements – such as loyalty program points or other forms of consumer purchase rewards – to a patient for the acquisition of a drug or a service from them. The College provides a description of the inducement issue and its rationale for the prohibition here. Sobeys challenges the lawfulness of this prohibition, and thus seeks judicial review. It seems that the standard of review to be applied in this case became a significant issue in the hearing, and this decision by the Honourable Mr. Justice V.O. Ouellette is the Court’s reasons for selecting correctness – notwithstanding that both Sobeys and the College had agreed the standard should be reasonableness. The decision illustrates, or perhaps exposes, some uncertainty in the application of administrative law principles to legislative acts by delegates of the Legislature, and unfortunately I am not sure the reasoning provided by Justice Ouellette is helpful in resolving this uncertainty.

What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections

By Alice Woolley

On March 29, 2016

In Criminal, Ethics and the Legal Profession, State Responses to Violence

By: Alice Woolley

PDF Version: What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections

Case Commented On: R v Ghomeshi, 2016 ONCJ 155

The Ghomeshi trial made me think about the ethical duties of prosecutors in sexual assault cases. Not because I have any basis for saying that the prosecutors violated their ethical duties. I have no personal knowledge of what the prosecutors did or did not do in their preparation and presentation of the Ghomeshi case. I also do not know either the pressures they faced or the policies that governed their decisions.

Rather, I have thought about the ethical duties of prosecutors because of claims made by people in response to criticisms of the Ghomeshi prosecutors. Specifically, I have heard the following:

The prosecutor simply takes the case the police provide: “You do the best you can with the evidence you’re given” (Laura Fraser, “Jian Ghomeshi trial questions answered by criminal lawyers” CBC February 12, 2016, here).

The prosecutor should not prepare witnesses. Otherwise, the prosecutor risks becoming a witness due to his disclosure obligations pursuant to R v Stinchcombe, [1991] 3 SCR 326: “Crown interference, even through so-called preparation, can result in a Crown Attorney becoming a witness to the own proceeding or worse still a stay of proceeding for an abuse of process” (Sean Robichaud, “In Defence of the Crown in Ghomeshi”, here).

The prosecutor represents the public, not the complainants, and owes the complainants no obligation in his role as prosecutor.

(See also here and here)

R v LSM and the “Sanctity” of the Joint Submission

By Lisa Silver

On March 28, 2016

In Criminal

By: Lisa Silver

PDF Version: R v LSM and the “Sanctity” of the Joint Submission

Case Commented On: R v LSM, 2016 ABQB 112

In R v LSM, 2016 ABQB 112, Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta, sitting as a summary conviction appeal court, considers the “sanctity” of the joint submission and the circumstances in which the subsequent sentence will be varied on appeal. In his view “an appeal of a joint submission should rarely succeed” (at para 20). He supports this position by outlining three very narrow exceptions to this rule. After a thorough analysis of the principles, Associate Chief Justice Rooke reluctantly allows the appeal in part. He does so by finding only one ground of appeal, the ground presented on consent, falls within an exception. The decision, on its face, appears to be a straightforward application of the principles at hand. Yet, on further contemplation, this decision may not be about the “sanctity” of a joint submission but rather about ensuring that, in the end, justice is done.

The Termination of Power Purchase Arrangements in Alberta: What is the Legal Position and What are the Implications of Termination?

By Nigel Bankes

On March 24, 2016

In Energy

By: Nigel Bankes

PDF Version: The Termination of Power Purchase Arrangements in Alberta: What is the Legal Position and What are the Implications of Termination?

Case Commented On: The decisions of various buyers to “terminate” their interests in power purchase arrangements (PPAs)

In December 2015, Enmax announced that it was “terminating” its interest in a power purchase arrangement (PPA) with the owner of the Battle River 5 coal plant subject to the PPA (see Enmax terminates unprofitable-coal-fired electricity contract). That was followed this month (March 2016) with announcements from TransCanada Energy and ASTC Power Partnership (a partnership of Trans Canada Energy and AltaGas Pipelines) that they too had given notice to terminate and would be walking away from their obligations as buyers under PPAs relating to Sheerness and Sundance A and B. In announcing its decision, TransCanada indicated that it was doing so because “Unprofitable market conditions are expected to continue as costs related to CO₂ emissions have increased and they are forecast to continue to increase over the remaining term of the PPA agreements.” It is generally understood that reference to “costs related to CO₂ emissions” is a reference to the emissions penalty imposed by the Specified Gas Emitter Regulation (SGER), Alta Reg 139/2007. This Regulation, first introduced in 2007, requires regulated emitters (including owners of coal fired generating plants) to achieve improvements in emissions intensity at their facilities (or purchase offsets or emissions performance credits) failing which these emitters must pay into the Climate Change and Emission Management Fund. The emissions intensity target was originally set at 12% over the original baseline for the facility and the fund contribution at $15 a tonne (payable only for emissions in excess of the emissions intensity target for the facility). While the previous government dithered and procrastinated on changes to the intensity target and changes to the level of fund contribution (indeed the previous government extended the sunset provision in the regulation twice), the Notley government grasped the nettle, and, in June 2015 announced, as an interim step in the development of a more comprehensive climate change policy, that regulated emitters will be required to achieve an emissions intensity target of 15% in 2016 and 20% in 2017, while the compliance price for excess emissions will rise from $20 per tonne in 2016 to $30 per tonne in 2017. Those developments are discussed in an earlier post here.