Gross Overriding Royalty Payable on 100% of Production

By: Nigel Bankes

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Case Commented On: Obsidian Energy Partnership v Grizzly Resources Ltd, 2019 ABQB 406

In this decision, Master J.T. Prowse granted summary judgment in favour of Obsidian (formerly Penn West Petroleum) against Grizzly Resources, concluding that Obsidian’s gross overriding royalty interest (GORR) of 2.75% was payable on 100% of production from the encumbered properties rather than on Grizzly’s working interest in the properties. Continue reading →

Alberta Court of Appeal Broadens the Scope of Offences for Conditional Discharges

By: Serena Eshaghurshan

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Case Commented On: R v Chowdhury, 2019 ABCA 205

In May 2019, the Alberta Court of Appeal (ABCA) heard an appeal for a dangerous driving causing bodily harm case. The appellant, Mr. Chowdhury, sought a conditional discharge, but the sentencing Judge refused to grant one. Mr. Chowdhury appealed his sentence and was surprisingly granted a conditional discharge, the first of its kind for this offence. Continue reading →

Alberta Court of Appeal Stages a Judicial Intervention on Judicial Interventions

By: Scott Carrière

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Case Commented On: R v Quintero-Gelvez, 2019 ABCA 17

In January, the Alberta Court of Appeal (the Court) allowed an appeal from a sexual assault conviction in R v Quintero-Gelvez, involving an issue of judicial intervention. The matter before the Court was whether repeated comments and interventions by the trial judge inhibited defence counsel from cross-examining the complainant as he was entitled, preventing the accused from making full answer and defence. The Court, in ordering a new trial, declined to take up the question of bias but agreed trial fairness was compromised. Continue reading →

Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces

By: Martin Olszynski and Nigel Bankes

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Matter Commented On:Bill C-69: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to ament the Navigation Protection Act and to make consequential amendments to other Acts

Alberta’s new premier has recently threatened to sue the federal government over Bill C-69, the Liberal government’s attempt to restore some credibility to Canada’s environmental assessment regime. More specifically, Premier Kenney has recently been asserting that section 92A of the Constitution Act, 1982, which gives the provinces jurisdiction over the development of non-renewable natural resources, precludes the federal government from assessing what the Premier describes as “provincial projects”: “[BillC-69] gives a new federal agency the power to regulate provincial projects, such as in situ oil sands developments and petrochemical refineries, which are entirely within a province’s borders and already subject to provincial regulation. It disregards a landmark Supreme Court ruling on jurisdiction and the balance between federal and provincial powers spelled out in the Constitution — including section 92A in which provinces have exclusive authority over non-renewable resource projects.” In making these comments, the Premier contradicts almost three decades of settled jurisprudence with respect to the federal and provincial division of powers over the environment generally, and federal jurisdiction to conduct environmental assessments specifically. Continue reading →

Sentencing to the Starting Point: The Alberta Debate

By: Lisa Silver

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Case Commented On: R v Ford, 2019 ABCA 87

After R v Shropshire, [1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA), [1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse, [2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford, 2019 ABCA 87, the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention.

The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected. Continue reading →