ABLawg

By: Martin Olszynski

PDF Version: Environmental Damages under Bill C-46 (Pipeline Safety Act)

Legislation commented on: Bill C-46: An Act to Amend the National Energy Board Act and the Canada Oil and Gas Operations Act

Yesterday, I had the opportunity to appear before the House of Commons Standing Committee on Natural Resources in the context of its study of Bill C-46, referred to as the Pipeline Safety Act, which amends the National Energy Board Act, RSC 1985 c N-7 and the Canada Oil and Gas Operations Act, RSC 1985 c 0-7. Below are my speaking notes in slightly modified form. Interested readers are also referred to the Library of Parliament’s Legislative Summary of Bill C-46; you will also find commentary on the Bill here and here.

An Update on the Northern Gateway Litigation

By Nigel Bankes

On March 31, 2015

In Aboriginal, Energy, Intervenors and Standing

By: Nigel Bankes

PDF Version: An Update on the Northern Gateway Litigation

Cases Commented On: Forest Ethics Advocacy Association v Northern Gateway Pipelines Inc, 2015 FCA 26; Gitxaala Nation v Northern Gateway Pipelines Inc, 2015 FCA 27; Gitxaala Nation v Northern Gateway Pipelines Inc, 2015 FCA 73

This post provides an update on the various challenges that have been mounted to Enbridge’s Northern Gateway Project (NGP). ABlawg has been following this project for some time. Earlier posts include a post on the relationship between the National Energy Board (NEB) and the Governor in Council, a post on BC’s conditions for oil pipelines as well as a series of posts by Shaun Fluker here, here and here particularly on Species at Risk Act (SC 2000, c.29) issues with respect to the report of the Joint Review Panel (JRP) and the Governor in Council’s decision, and Martin Olszynski’s post on the JRP Report. In addition, I offered an earlier account of the Federal Court proceedings in August 2014 which was published in Energy Regulation Quarterly.

Mental Illness and Sentencing: Blaming the Mentally Ill for their Lack of Cooperation with Inadequate Treatment in R v Maier

By Glen Luther

On March 30, 2015

In Criminal

By: Glen Luther, Q.C. and Dr. Mansfield Mela

PDF Version: Mental Illness and Sentencing: Blaming the Mentally Ill for their Lack of Cooperation with Inadequate Treatment in R v Maier

Case Commented On: R v Maier, 2015 ABCA 59

Mental illness presents a difficult issue for the sentencing judge. The Criminal Code, RSC 1985, c C-46 requires that in sentencing an accused a court must apply the fundamental principle of sentencing, contained in s. 718.1, which requires that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In sentencing a mentally ill offender who has been convicted of an offence a judge must decide on the degree of responsibility of the offender and balance that against the gravity of the offence. It is clear of course that many mentally ill individuals are in fact guilty of the offence they committed as the provisions of s.16 of the Code relating to criminal responsibility are very narrow and exempt only the rare individual from being seen as having committed their crime. How then do we sentence the guilty but mentally ill offender and how do we decide how responsible they are for the offending behaviour?

Trinity Western University and Some Finer Points of Trans and Intersex Diversity

By Saul Templeton

On March 26, 2015

In Human Rights, Legal Education

By: Saul Templeton

PDF Version: Trinity Western University and Some Finer Points of Trans and Intersex Diversity

In the comments to my first post on Trinity Western University, it was suggested that TWU should be given the benefit of the doubt concerning its policy on admitting trans students (or, more accurately, its lack of any policy on this issue). Perhaps TWU simply has not considered whether and if it would admit trans students, and joint submissions could be made to TWU on why it ought to admit trans students.

I appreciate the sincerity of this offer. However, I must respectfully counter that accepting trans students in principle would solve none of the problems with TWU’s Community Covenant. I raised the question of what TWU would do with trans students and applicants in a previous post because there are really two issues here: (1) would TWU accept trans people at all, even if they were married and sexually active with their spouses; and (2) if trans people were accepted at TWU, how could TWU possibly apply the Covenant to trans people in a way that is both logical and in accordance with biblical morality?

Constitutional Concerns about Being “In the Company” of a Gang-Affiliate

By Sarah Burton

On March 25, 2015

In Constitutional

By: Sarah Burton

PDF Version: Constitutional Concerns about Being “In the Company” of a Gang-Affiliate

Legislation Commented On: Gaming and Liquor Act, RSA 2000, c G-1

Six years ago, the Province of Alberta amended the Gaming and Liquor Act, RSA 2000, c G-1 as part of a broader policy to crack down on gang related activity. Section 69.1 of the Act allows police officers to “exclude or remove from licensed premises any person the police officer believes to be associated with a gang.” Almost immediately, the amendment raised a number of serious constitutional concerns (see here). Political pressure to shut down gangs, however, proved more powerful than any protest from civil libertarians and Charter enthusiasts. Despite the multitude of objections, the amendment came into effect and has been in force since 2009.

Given this history, it strikes me as odd that the provision has never been considered (or even mentioned) in any reported decision. Why is that? Perhaps the law is not being used at all. Maybe persons who resist are being charged under different provisions, or charges are being dropped before trial. It is difficult to fill in the reasons for a gap in judicial consideration, but given the constitutional concerns that were immediately evident, the absence of any case law is a puzzling cause for concern.

This post is intended to circle back on the “gangbuster” amendment to explore what has transpired since its enactment. It also reconsiders and fleshes out questions about the amendment’s constitutionality.