ABLawg

By: Joshua-Sealy Harrington

PDF Version: Can the Homeless Find Shelter in the Courts?

Case Commented On: Tanudjaja v Canada (Attorney General), 2014 ONCA 852

Late in 2014, the Ontario Court of Appeal considered a Charter challenge to provincial and federal (in)activity allegedly contributing to homelessness and inadequate housing (Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (“Tanudjaja CA”)). The appellants sought to overturn a motion judge’s decision striking their application at the pleadings stage (Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (“Tanudjaja SC”)). A majority of the Court of Appeal (the “Majority”) upheld the motion judge, while the dissenting judgment (the “Dissent”) would have overturned the motion judge and allowed the Charter challenge to proceed to trial. This comment analyzes both judgments and concludes that the Dissent provides a more compelling analysis of the governing legal principles and their application in this case.

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

By Martin Olszynski

On April 1, 2015

In Environmental

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?