The Fair Deal Panel Report – and the British North America Act?

By: Nigel Bankes

 PDF Version: The Fair Deal Panel Report – and the British North America Act?

Report Commented On: Fair Deal Panel, Report to Government, May 2020

The Kenney government has now released the Report of the Fair Deal Panel. It is not a good read. Many sections are poorly written and poorly reasoned. But since ABlawg is a blog on legal developments, let’s start with the title to this post and the decision of the authors to refer to Canada’s founding constitutional document as the British North America Act (BNA Act) of 1867.

While the authors concede (at 13) that the BNA Act is also known as the Constitution Act, 1867, they consistently refer to the BNA Act throughout the report. This is simply wrong, and it has been wrong since 1982 when Canada adopted the Constitution Act, 1982. That Act includes a Schedule entitled “Modernization of the Constitution” (emphasis added) which serves to rename elements of the Constitution. In particular, item 1 in the Schedule renames the BNA Act of 1867 the Constitution Act, 1867. It repeals the title to the old BNA Act.

This may seem, especially to non-lawyers, a relatively trivial point (perhaps the Panel members just made an elementary mistake, despite having two lawyers on the Panel), but perhaps there is something deeper going on. Perhaps the Panel, consciously or unconsciously, is hearkening back to the “golden” days of Empire and reaffirming the institution of the Monarchy; or perhaps the Panel is somehow questioning the legitimacy of the patriation of the Constitution and its (Pierre) Trudeau Charter? But none of that makes any sense. As the statue topplers remind us, there was nothing especially golden about the Empire, and there is one element of the 1982 constitutional package that Alberta continues to rely on heavily. That is the addition of section 92A, the resources amendment, to the Constitution Act, 1982. That amendment afforded the provinces greater powers over the regulation of oil and gas, electricity, and other natural resources.

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Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

By: Shaun Fluker

PDF Version: Oil and Gas Consortium Intervenes in the Jurisdictional Challenge to the Alberta Inquiry into Anti-Alberta Energy Campaigns

Case Commented On: Ecojustice Canada Society v Alberta, 2020 ABQB 364 (CanLII)

In July 2019, the Lieutenant Governor in Council commissioned the Allan Inquiry with Order in Council OC 125/2019, issued under section 2 of the Public Inquiries Act, RSA 2000, c P-39. The Order in Council directs Commissioner Steve Allan to investigate and report on any anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations. Several ABlawg posts have been critical of the Allan Inquiry, commenting on its mandate, process, interference with the freedom of expression protected by the Charter, and lack of transparency. Ecojustice has brought an application for judicial review seeking an order quashing Order in Council 125/2019 and prohibiting the Allan Inquiry from proceeding. This post comments on a decision by Justice Karen M. Horner granting an application made by an “Industry Consortium” for leave to intervene in this proceeding.

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eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

By: Gideon Christian

PDF Version: eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

In adversarial litigation, oral questioning is an out-of-court pre-trial or pre-hearing proceeding where a party to litigation orally examines (by way of questioning) under oath another party adverse in interest, or their agents, for the purpose of adducing information that may be used as evidence. In the Alberta Rules of Court, Alta Reg 124/2010 (Alberta ROC), oral questioning can take the form of questioning for discovery (Rules 5.17 and 5.22) or questioning on application (Rules 6.7 and 6.8). Before the COVID-19 crisis and its social-distancing requirements, the default method of oral questioning in civil litigation was in person, with the parties and their lawyers present at a physical location accessible to all, such as the lawyer’s office or some other location chosen by the parties. A certified court reporter must also be present, who swears the witnesses and also takes record of the ‘question and answer’ proceeding.

The COVID-19 pandemic has resulted in public health and judicial directives enforcing isolation and social-distancing rules. Consequentially, in-person questioning became impractical on public health grounds. Although the justice system was substantially paralysed by the pandemic, litigation must go on even in that state of paralysis. In response to the realities imposed on the justice system, in-person oral questioning gave way to virtual or remote questioning using audio- or video-conferencing technologies. This method of questioning is what I refer to in this post as eQuestioning (short for electronic questioning).

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Examining the Future of Policing in Edmonton: Reflections on Reform & Accountability – Part II

By: Asad Kiyani

PDF Version: Examining the Future of Policing in Edmonton: Reflections on Reform & Accountability – Part II

This is Part Two of a series detailing my comments made to Edmonton City Council in the context of a motion to thoroughly examine policing (available here). In Part One, I focused on the need for collection of data about policing, pointing out that this information can be of use not only to citizens who are wary of police, but to police forces looking to build positive relationships with local communities and to improve their service, as well as to City Council as it tries to understand how its massive investment of hundreds of millions of dollars into policing is spent.

In this post, I offer some brief thoughts on independent oversight of police. This review is not intended to be comprehensive. I then consider why Edmonton needs to think about police reform even though George Floyd was killed by American police in Minnesota, and some reflections on questions I was asked by members of Council after my presentation about the broader themes of policing, poverty, and community relationships.

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Examining the Future of Policing in Edmonton: Reflections on Reform & Accountability – Part I

By: Asad Kiyani

PDF Version: Examining the Future of Policing in Edmonton: Reflections on Reform & Accountability – Part 1

The killing of George Floyd in the United States has prompted a swell of public activism across Canada. Building on the initial wave of ‘Black Lives Matter’ initiatives – which was itself sparked by police killings of other Black citizens in the United States several years ago – and tapping into decades-long demands for public sector reform across Canada, this activism has in particular focused on Canadian policing. Part of the public debate is about defunding and/or abolishing policing.

Edmonton City Council was recently presented with such a motion (summarized here), and is currently hearing from members of the public about the proposal. It is a timely initiative, not just because of the public outcry, but because Alberta had begun the process of reviewing the provincial Police Act, RSA 2000, c P-17, even before George Floyd’s death three weeks ago.

In this blog post and one to follow, I offer a slightly edited version of the presentation on which I based my comments to Edmonton City Council. The motion covers a lot of ground, including potentially freezing the scheduled budget increase for the Edmonton Police Service (EPS); independent oversight of complaints against the police and other enforcement officers (such as Transit Peace Officers); and, a review of the city’s street checks policy.

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