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Matter Commented On: The Kent Report (February 15, 2022)

On February 25, the Premier issued a brief statement announcing that former Minister of Justice, Kaycee Madu, was being shifted to Minister of Labour and Immigration, and that the former Minister of Labour and Immigration, Tyler Shandro, is now the Minister of Justice. This Friday afternoon swap was in response to the findings of retired Justice Adèle Kent in her investigation into a phone call made by Minister Madu to the Edmonton Chief of Police on the morning of March 10, 2021, concerning a traffic ticket issued to him that very same morning. As we discuss at the end of this post, this investigation seemingly only occurred because CBC news reporter Elise Von Sheel revealed the making of the call in a news story published on January 17, 2022. Several hours after the CBC broke the news, Premier Kenney announced on Twitter that Minister Madu was temporarily stepping aside from his ministerial duties while an independent investigation reviewed whether the call amounted to an interference with the administration of justice. The Kent Report concludes that the call (1) was an attempt to interfere with the administration of justice and (2) created a reasonable perception of an interference with the administration of justice. In this post, we summarize and comment on the findings of the Kent Report.

Secrecy in Species at Risk Act Permits

By Drew Yewchuk

On February 22, 2022

In Protection of Species

By: Drew Yewchuk & Daniella Marchand

PDF Version: Secrecy in Species at Risk Act Permits

Permit Commented On: Explanation for issuing permit (19-HCAA-01862) pursuant to the provisions of section 73 of SARA – Bull Trout

Public Interest Law Clinic staff have been monitoring the Species at Risk Act, SC 2002, c 29 (SARA) public registry from the early days of the clinic in 2016, when the clinic looked at a proposed permitting policy under SARA. Maintaining the public registry is a requirement of SARA (see SARA sections 120-124), and one type of document that must be posted to the registry are the explanations for the granting of section 73 permits to affect species at risk or their critical habitat. The clinic has found instances where they are either never being posted at all or posted very late – so late that the permits are expired by several months by the time they are posted to the registry. This blog describes the problem with the long delays in posting explanations for permits and argues these delays violate the intention of SARA. This post ends with a brief reflection on the usefulness of online registries meant to increase transparency.

COVID-19 and the Emergencies Act (Canada) Redux

By Shaun Fluker

On February 17, 2022

In Emergencies Act, Protest

By: Shaun Fluker

PDF Version: COVID-19 and the Emergencies Act (Canada) Redux

Legislation Commented On: Emergencies Act, RSC 1985, c 22 (4th Supp); Order in Council, PC Number: 2022-0106 (February 14, 2022), SOR/2022-20; Emergency Measures Regulation, SOR/2022-21; Emergency Economic Measures Order, SOR/2022-22

On February 14, the federal Minister of Justice and Attorney General announced the declaration of a public order emergency under the Emergencies Act, RSC 1985, c 22 (4^th Supp). The emergency was formally declared by proclamation made by the Governor in Council under section 17 of the Act with Order in Council, PC Number: 2022-0106 (February 14, 2022), SOR/2022-20. This proclamation provides for the exercise of extraordinary powers to take measures to end the blockades and occupations across Canada; actions that were initiated as a protest against restrictions on individual and economic liberties imposed by COVID-19 public health measures, but which quickly morphed into #freedomconvoy, weaponized extremism, threats of insurrection, and significant economic losses. The emergency powers have initially been set out in the Emergency Measures Regulation, SOR/2022-21 and the Emergency Economic Measures Order, SOR/2022-22. As is required by the Act, the declaration and these powers will be the subject of a debate in Parliament this week.

What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

By Laura Buckingham

On February 15, 2022

In Law Reform, Property

By: Laura Buckingham

PDF Version: What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

Reports Commented On: Alberta Law Reform Institute, Dower Act: Consent to Disposition, Report for Discussion 36; Alberta Law Reform Institute, Dower Act: Life Estate, Report for Discussion 37

Sometimes, the problem with a law is easy to see. If a government proposes legislation that might be unconstitutional, events play out in the public eye. Lawyers, academics, and other experts will point out the issue (for just a few examples, see e.g. here, here, and here). A court challenge can attract a lot of attention. If a court strikes down a law, news media will report the story.

Other problems are less visible. That does not mean they are less important. Most of us encounter the law in commonplace situations, like buying or selling a home, making a will or administering an estate, entering a lease, being hired or fired from a job, or getting divorced. If these transactions are inefficient or difficult to navigate, it won’t make the news. Nonetheless, these problems are important to the people affected by them. Resolving them can take money and time. A common problem that affects a lot of people can have a big cumulative effect. Law reform often addresses these kinds of problems. The Alberta Law Reform Institute’s (ALRI) project on the Dower Act, RSA 2000, c D-15 is a good example.

Rigs in a Parlour: The Freedom Convoy and the Law of Private Nuisance

By David V Wright

On February 9, 2022

In Torts

By: David V Wright and Martin Olszynski

PDF Version: Rig in a Parlour: The Freedom Convoy and the Law of Private Nuisance

Matter Commented On: Li v Barber et al, Court File No CV-22-00088514-00CP

After more than a week of disruptive, and at times highly offensive, protesting in the nation’s capital, private law has been engaged. Specifically, residents of the inner downtown area applied to the Ontario Superior Court for injunctive relief (essentially, a temporary ban on certain conduct) and for damages under the tort of private nuisance. This post discusses the basic elements and principles of private nuisance as they relate to the present context (we do not comment on procedural aspects – e.g., certification of the proceeding as a class action). Our preliminary assessment is that the prospects for success on the question of private nuisance are very good. Early indications from the Court are consistent with this assessment, as Justice Hugh McLean of the Ontario Superior Court granted an interim injunction on Monday (copy of the Court order here). In doing so, Justice McLean indicated that the right of citizens to peace and quiet was the overriding right (see this detailed thread on Twitter summarizing the Court proceedings).

Former Minister of Justice Attempted to Interfere with the Administration of Justice: Kent Report

Secrecy in Species at Risk Act Permits

COVID-19 and the Emergencies Act (Canada) Redux

What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

Rigs in a Parlour: The Freedom Convoy and the Law of Private Nuisance