ABLawg

By: Alice Woolley

PDF Version: Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

Case Commented On: Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7

In Attorney General (Canada) v. Federation of Law Societies, 2015 SCC 7 the Supreme Court of Canada precluded the application to lawyers of certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002?184. The Court held that, as applied to lawyers, those provisions violated s. 7 and s. 8 of the Charter. The violation of s. 8 arose from the provisions’ failure to protect adequately solicitor-client privilege in the context of searches permitted under the legislation. The violation of s. 7 arose because the provisions put lawyers’ liberty at risk and were inconsistent with fundamental justice. Specifically, because of the “conclusion that the search aspects of the scheme inadequately protect solicitor-client privilege” (at para 105) and, for a majority of the Court, because the provisions interfered with a newly articulated principle of fundamental justice: that the state may not impose duties on lawyers that undermine a lawyer’s commitment to her client’s cause. The Court declined to hold that independence of the bar was a principle of fundamental justice.

The conclusion by the majority that fundamental justice prevents improper interference with lawyers’ commitment to their clients is welcome. The rule of law requires legal counsel committed to protecting the ability of clients to enjoy the respect for their dignity and autonomy that the law provides (see my articles setting out this position here and here). The Court’s view of the legislation as unconstitutional also appears warranted; certainly the legislation’s search provisions seem plausibly to permit improper intrusions into privileged documents and information.

Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

By Jennifer Koshan

On February 18, 2015

In Constitutional

By: Jennifer Koshan

PDF Version: Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

Case Commented On: Carter v Canada (Attorney General), 2015 SCC 5

In a landmark decision, on February 6, 2015 the Supreme Court of Canada unanimously struck down the criminal prohibition against physician assisted death (PAD) in Carter v Canada, 2015 SCC 5. By declining to follow its 1993 decision in Rodriguez v British Columbia, 1993 CanLII 75 (SCC), [1993] 3 SCR 519, which had upheld the prohibition, Carter marks the third time in the first few weeks of 2015 that the Court has overruled previous Charter decisions (see also Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, which will be the subject of a future ABlawg post). In Carter, the Court held that the ban on PAD violates the rights to life, liberty and security of the person contrary to the principles of fundamental justice under section 7 of the Charter, and could not be justified as a reasonable limit under section 1. As predicted, however, the Court declined to deal with the claim that the ban on PAD also violates equality rights contrary to section 15(1) of the Charter.

The AER and the Values of Efficiency, Flexibility, Transparency and Participation: Best in Class?

By Nigel Bankes

On February 12, 2015

In Energy

By: Nigel Bankes

PDF Version: The AER and the Values of Efficiency, Flexibility, Transparency and Participation: Best in Class?

Matter Commented On: AER Bulletin, 2015-05 and an amendment to the Oil and Gas Conservation Rules creating the concept of a “Subsurface Order”

On February 10, 2015 the Alberta Energy Regulator (AER) issued Bulletin 2015-05 announcing a change to the Oil and Gas Conservation Rules. This change authorizes the AER to issue something called a Subsurface Order:

11.104 Notwithstanding sections 3.050, 3.051, 3.060, 4.021, 4.030, 4.040, 7.025, 10.060, 11.010, 11.102 and 11.145, if the Regulator is satisfied that it is appropriate to do so, the Regulator may, on its own motion, issue a subsurface order that

(a) designates a zone in a specific geographic area, and

(b) prescribes requirements pertaining to spacing, target areas, multi-zone wells, allowables, production rates and other subsurface matters within that zone,

in which case if there is a conflict or inconsistency between the subsurface order and any of the sections referred to above, the subsurface order prevails to the extent of the conflict or inconsistency.

The Bulletin provides additional guidance as to how the AER will use this significant new power – which evidently allows it to suspend and vary the default rules relating to important issues such as spacing, target areas, allowables and production rates over broad geographic areas. The amendment likely has something to do with the AER’s experimentation with the play-based approach (see post welcoming that development here). The Bulletin does not specifically mention that initiative although it does indicate that the change is particularly directed at tight oil and gas resources.

Uber & Calgary – A Modern Day Romeo & Juliet

By Theresa Yurkewich

On February 9, 2015

In Municipal Law

By: Theresa Yurkewich

PDF Version: Uber & Calgary – A Modern Day Romeo & Juliet

The days of ride-sharing programs are nothing new, but with Uber’s recent opening in Edmonton, there is no doubt that it will soon make its way to Calgary. However, Uber is not the first taxi-alternative to make a run at the Calgary market. Blue & white Car2Gos can be seen populating the city, and especially the downtown core, where users sign up with their payment information and driver’s license in order to rent easy-to-park vehicles on a per-minute basis. These cars can be reserved using a mobile app or web browser and payment is electronically transferred when the ride ends.

But Car2Go isn’t the only ride-sharing program in Calgary – a simple search on Kijiji will find various drivers offering rides, Carpool.ca will match riders with drivers, and there are other start-ups in the works. This post will consider the legal regime governing ride-sharing, with a focus on Calgary, while identifying some of the legal issues that these programs might face when operating within a municipality.

Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

By Linda McKay-Panos

On February 6, 2015

In Constitutional

By: Linda McKay-Panos

PDF Version: Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

Case Commented On: BC Civil Liberties Association v University of Victoria, 2015 BCSC 39

In Pridgen v University of Calgary, 2012 ABCA 139, one member of the Alberta Court of Appeal, Justice Paperny, came to the conclusion that the Canadian Charter of Rights and Freedoms could apply to the actions of the University of Calgary in disciplining the Pridgen brothers for non-academic misconduct (see a post on that decision here). In BC Civil Liberties Association v University of Victoria, 2015 BCSC 39 (“UVic”), the British Columbia Supreme Court ruled that the Charter did not apply, and distinguished Pridgen on several grounds.

Pridgen involved a number of University of Calgary students in the Faculty of Communication and Culture (now Arts) who posted derogatory comments about one of their instructors on Facebook, and who were disciplined for non-academic misconduct. The discipline included writing mandatory letters of apology and lengthy periods of probation. Some students appealed the faculty’s decision to the General Faculties Council Review Committee, which upheld the finding of non-academic misconduct. The Pridgens sought further appeal to the University’s Board of Governors. One of the grounds of appeal was that their freedom of expression under the Charter had been violated by the University. Justice Jo’Anne Strekaf of the Alberta Court of Queen’s Bench granted the Pridgens’ application for judicial review on both Charter and administrative law grounds (see Pridgen v University of Calgary, 2010 ABQB 644).