ABLawg

By: Alice Woolley

PDF Version: Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

Case Commented On: R. v. Anderson, 2014 SCC 41

With its unanimous judgment in R. v. Anderson, 2014 SCC 41, the Supreme Court has clarified the scope of “prosecutorial discretion”, distinguishing it from matters that go only to “tactics and conduct before the court” (para 35) while confirming its application to a “wide range of prosecutorial decision making” (para 45). The Court also confirmed the non-reviewable nature of prosecutorial discretion absent demonstration of an abuse of process, and reviewed the law governing assessment of an abuse of process. Finally, the Court held that Crown counsel have no constitutional obligation to consider an accused’s aboriginal status when they tender Notice to the accused that the Crown intends to seek the mandatory minimum punishment that may be applicable given that accused’s prior convictions.

Crossed Wires: The AESO-Milner Transmission Loss Saga

By Sean Bullen

On June 19, 2014

In Energy

By: Sean Bullen

PDF Version: Crossed Wires: The AESO-Milner Transmission Loss Saga

Decision commented on: AUC Decision 2014-110, Application for Review of AUC Decision 2012-104: Complaint by Milner Power Inc. regarding the ISO Transmission Loss Factor Rule and Loss Factor Methodology

On April 16, 2014, an Alberta Utilities Commission panel released Review and Variance Decision 2014-110 (the “R & V Decision”) relating to a complaint made by Milner Power Inc. (“Milner”) in 2005. Milner is a subsidiary of Maxim Power Corp. and is the general partner of the limited partnership owner of the HR Milner power plant, a 150 megawatt coal-fired generation facility located near Grande Cache, Alberta. Milner’s 2005 complaint came on the heels of a change made by the Alberta Electric System Operator (the “AESO”) to the rule and methodology employed to determine the allocation among Alberta’s electricity generation owners of “transmission losses” resulting from the transmission of electricity from the sources of generation to the locations of consumer load. A lengthy regulatory entanglement has ensued involving each of the province’s leading electricity generators, including TransAlta, Capital Power, ATCO, ENMAX and TransCanada, together with Milner and the AESO. Coming nearly a decade after Milner’s original complaint, the R & V Decision represents a partial step toward resolution of the transmission losses issue. However, much remains unsettled. This comment will provide some background to the decision, summarize its procedural history, review the R & V Decision itself and consider the path forward.

“Arbitrary Disadvantage”: A Slip of the Pen or Something More?

By Jennifer Koshan

On June 18, 2014

In Constitutional, Human Rights

By: Jennifer Koshan

PDF Version: “Arbitrary Disadvantage”: A Slip of the Pen or Something More?

Case commented on:McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39

I have written several ABlawg posts on the test for discrimination under human rights legislation (see e.g. here, here and here). The ongoing issue in this series of cases is the extent to which the test for violations of equality rights under section 15 of the Charter should influence the approach in the human rights sphere. In the Supreme Court’s most recent human rights decision, McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39 (CanLII), the Court continues to muddy the waters on the appropriate test. Linda McKay Panos has already written about the McCormick case and its implications for employment related complaints of discrimination here. As she noted in that post I have a few things to say about the case as well.

#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

By Alice Woolley

On June 13, 2014

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version:#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

How do we understand bad things done to women by men? Through the few men who do them (#Notallmen)? Through misogyny in our culture as a whole? Through the experience of all women living with the risk that such bad things can happen (#Yesallwomen)? The ferocity of recent internet debate on this topic clouds the possibility that harm done by men to women should be understood as about all these things: the men who inflict it, the society in which it occurs and the lives of the women who live with the possibility of that threat.

In this post I explore the thought that sexual harassment and sexual discrimination in the legal profession must be understood with this sort of breadth of perspective: it is conduct reflecting the pathologies of the specific men who do it; it in no way reflects the conduct of all – or even that many – men in the profession; yet it is conduct that reflects aspects of our professional culture, aspects that we need to address to achieve gender equity and fairness.

Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

By Elizabeth Whitsitt

On June 12, 2014

In International Law

By: Elizabeth Whitsitt and Nigel Bankes

PDF Version: Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

Decision commented on: World Trade Organization, Appellate Body Report – European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (22 May 2014)

Just a few short weeks ago the World Trade Organization (WTO) issued its final word on the legality of a regime that bans seal products from the European Union (EU) market. In a decision that has Canadian and EU officials claiming victory, the WTO Appellate Body (AB) determined that the EU’s ban on seal products is justified under the right to protect public morals, specifically on the grounds of protecting animal welfare. The AB also found, however, that the ban is discriminatory in the way it is applied, and should be modified in order to fully comply with international trade obligations.

Briefly summarized, the measure at issue in this case bans the sale of seal products in all EU member states, subject to certain implicit and explicit exceptions. Explicitly, the measure permits the sale of seal products in the EU market if those products are: (i) derived from hunts carried out by indigenous peoples (IC), (ii) derived from hunts that were conducted for the sustainable management of marine resources (MRM), (iii) or personally imported into the EU by travellers. Implicitly, the measure also permits the import of seal products into the EU for process and re-export, a convenient loophole that protects commercial interests within the EU.