Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

By: David V. Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

The Supreme Court of Canada (SCC) recently released its opinion on the constitutionality of the federal impact assessment (IA) regime. In a 5:2 majority opinion, Chief Justice Richard Wagner concluded that much of the scheme is unconstitutional for projects falling primarily within provincial jurisdiction. ABlawg has published initial reflections (see here and here), as well as a primer.

One aspect of the majority opinion and any forthcoming legislative amendments that is in need of further attention is the Court’s analysis of greenhouse gas emissions. This post focuses on that aspect. In short, the majority reiterated that there is no plenary federal power to regulate greenhouse gas emissions, and found that Canada had not adequately made the legal argument to support inclusion of a designated project’s greenhouse gas emissions as a basis for triggering the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) or for making final decisions. However, the majority left the door open on this aspect, while also clarifying that there are no constitutional constraints during the assessment phase (i.e. information gathering phase) of the federal process. At the present juncture, the SCC opinion provides some valuable additional clarity regarding greenhouse gas emissions, but very far from total clarity. Uncertainty remains, and that is unfortunate. In the following discussion, I lay out what the majority said and did not say on greenhouse gas emissions, what that means, and what’s next. Continue reading →

Comments on the AER’s Draft Regulations for Rock-Hosted Mineral Mining

By: Drew Yewchuk

Regulatory Documents Commented on: AER Bulletin 2023-36: Invitation for Feedback on Proposed New Requirements for Rock-Hosted Mineral Resource Development; Draft Directive 0XX: Rock-Hosted Mineral Resource Development

PDF Version: Comments on the AER’s Draft Regulations for Rock-Hosted Mineral Mining

Despite the Alberta Energy Regulator (AER)’s poor reputation and history of scandals, the Alberta government expanded the role of the AER to include a broader role in regulating mining operations. In March 2023 changes to the Responsible Energy Development Act, SA 2012, c R-17.3 gave the AER new powers to regulate almost all types of mining under the Mineral Resource Development Act, SA 2021, c M-16.8. In my view, expanding the mandate and role of the AER is a mistake given their institutional failures and the public’s justified low confidence in the AER. Continue reading →

The Myth of False Allegations of Intimate Partner Violence

By: Jennifer Koshan

Case Commented On: R v RMD, 2022 ABKB 851 (CanLII)

PDF Version: The Myth of False Allegations of Intimate Partner Violence

A colleague recently brought to my attention a decision concerning intimate partner sexual violence that was released earlier this year. In R v RMD, Justice Robert Graesser dealt with an application by the accused to cross-examine the complainant – his previous partner – on her past sexual activity in a criminal trial for alleged sexual assault. The court’s reasons for decision on this application arguably perpetuate one of the most common myths about intimate partner violence (IPV): that litigants make false or exaggerated claims of violence to gain an advantage in family law disputes. Indeed, the court went so far as to take judicial notice of this “fact” (at para 45). This post unpacks the decision, placing it in the larger context of gendered myths and stereotypes about IPV and the relevant research and case law. Continue reading →

There is No Presumption of Loss Flowing from a Breach of the Contractual Duty of Honest Performance

By: Jassmine Girgis

Case commented on: Bhatnagar v Cresco Labs Inc, 2023 ONCA 401 (CanLII)

PDF Version: There is No Presumption of Loss Flowing from a Breach of the Contractual Duty of Honest Performance

In Bhatnagar v Cresco Labs Inc, 2023 ONCA 401 (“Cresco Labs”), the Ontario Court of Appeal addressed whether the Supreme Court’s decision in CM Callow Inc v Zollinger, 2020 SCC 45 (CanLII) (“Callow”) created a legal presumption of loss once a court finds a breach of the contractual duty of good faith. The ONCA found that there is no presumption of loss and that a plaintiff claiming a loss of opportunity has the burden of providing evidence. Continue reading →

Submission to Justice Canada on the Criminalization of Coercive Control

By: Janet Mosher, Shushanna Harris, Jennifer Koshan, and Wanda Wiegers

Bill Commented On: Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), First Session, Forty-fourth Parliament (2023)

PDF Version: Submission to Justice Canada on the Criminalization of Coercive Control

Justice Canada has been holding an engagement process on the issue of whether an offence of coercive control should be added to the Criminal Code, RSC 1985, c C-46. This offence has been proposed in a series of private members bills, most recently, Bill C-332. Our submission (link below) argues that it is imperative that actors in all legal domains acquire a nuanced and contextual understanding of coercive control derived from an intersectional analysis that attends to how multiple systems of oppression interact to shape the tactics of coercion and control. However, we do not support the criminalization of coercive control, either as a standalone offence or within a broader offence of domestic abuse/violence. We argue that it is the former approach – the acquisition of deep and contextualized knowledge by legal system actors – and not criminalization, that holds promise in enhancing safety for women and children. Continue reading →