ABLawg

Evidence of Amelioration: What Does Kapp Require of Governments Under s.15(2) of the Charter? What Will Courts Permit?

On March 8, 2009

In Aboriginal, Constitutional, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: Evidence of Amelioration: What Does Kapp Require of Governments Under s.15(2) of the Charter? What Will Courts Permit?

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 53

Jonnette Watson Hamilton and I recently commented on the implications of the Supreme Court of Canada’s decision in R v Kapp, 2008 SCC 41 for the proper approach to equality rights under s.15(1) of the Charter (see The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges). We also noted that Kapp was more clear in terms of the approach to be taken under s.15(2) of the Charter, giving that section “independent status to protect ameliorative laws, programs and activities.” A recent Alberta case deals with a potential new battleground under s.15(2): government attempts to introduce new evidence to establish the ameliorative purpose of their laws on appeal. If a government is successful in this respect, and the court accepts the ameliorative purpose of the law or program in question, this will effectively serve to bar a claim under s.15(1).

What is sauce for the goose is sauce for the gander (and other, more mixed, metaphors): and a prediction as to the role of power and influence on law-making in the province.

By Nigel Bankes

On February 25, 2009

In Administrative Law, Natural Resources

Cases Considered: ATCO Midstream Ltd. v. Alberta (Energy Resources Conservation Board), 2009 ABCA 41.

PDF Version: What is sauce for the goose is sauce for the gander (and other, more mixed, metaphors): and a prediction as to the role of power and influence on law-making in the province.

The cases are legion in which the Energy Resources Conservation Board, supported by the Court of Appeal, has denied standing to public interest interveners, First Nations (e.g. Dene Tha’ First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68) and fellow-travellers on the grounds that they lack an adequate legal interest in the subject matter of the application. What is interesting about this case is that, this time, the ox that is gored is a sacred cow. Two sacred cows in fact; a leading provincial utility and gas processor (ATCO), and a petrochemical interest (NOVA) that the province spawned. At a formal level the result might be celebrated in terms of respect for the neutrality of the law and equality before the law. Respect may be tempered if we think the rule to be a bad rule.

Don’t you forget about me: Remembering the rest of administrative law after Dunsmuir

By Alice Woolley

On February 23, 2009

In Aboriginal, Administrative Law

Cases Considered: Bear Hills Charitable Foundation v. Alberta Gaming and Liquor Commission 2008 ABQB 766; East Prairie Métis Settlement v. Alberta (Métis Settlements Ombudsman) 2009 ABQB 31.

PDF Version: Don’t you forget about me: Remembering the rest of administrative law after Dunsmuir

In March 2008 the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, in which it rearticulated the appropriate approach to identifying and applying the standard for judicial review of administrative decisions. The significance (or not) of this re-articulation has been discussed elsewhere on ABlawg (see here and here). What perhaps needs to be better understood, however, is that in rearticulating the standard of review, the Supreme Court did not change other principles of administrative law. Two recent decisions of the Alberta Court of Queen’s Bench indicate that there may be some confusion on this point. In one case, the Dunsmuir analysis was used by the Court to consider a question of administrative procedure, even though procedural questions are not properly subject to standard of review analysis. In another case, the Dunsmuir analysis was used by the Court to review a decision properly characterized either as procedural or non-dispositive which, again, makes the use of a Dunsmuir analysis inapt.

R. v. Syncrude Canada: The Case of The 500 Dead Ducks

By Shaun Fluker

On February 23, 2009

In Environmental

PDF Version: R. v. Syncrude Canada: The Case of The 500 Dead Ducks

Alberta Environment and Environment Canada have laid charges against Syncrude Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 500 migratory birds in 2008.

Environment Canada has charged Syncrude for violating section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 by depositing substances harmful to migratory birds in its tailing pond. This is the same information as sworn by John Custer in his private prosecution that commenced in January (See my earlier post Environmental Private Prosecution Update: John Custer v. Syncrude Canada).

The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

By Jonnette Watson Hamilton

On February 20, 2009

In Aboriginal, Constitutional, Oil & Gas, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

Case Commented On: Ermineskin Indian Band and Nation v Canada, 2009 SCC 9

After the Supreme Court of Canada handed down its decision in R v Kapp, 2008 SCC 41 in June of 2008 there were questions about whether the Court had changed the legal framework for analyzing challenges brought under section 15(1) of the Charter. Kapp had clearly changed the approach to section 15(2), granting it independent status to protect ameliorative laws, programs and activities. However, on the topic of section 15(1), the Court had sent mixed signals about its intended approach. The message sent by the Court’s February 13, 2009 decision in Ermineskin Indian Band and Nation v Canada is much clearer; the legal framework for analyzing section 15(1) claims will be very different than it has been for the past decade.