Alberta Law Review (ALR)
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A Proposal for A Canadian Government Speech Doctrine
No full textHow does section 2(b) law deal with factual scenarios entailing a close connection between government and expression, such that the public reasonably believes the speech in issue emanates from the government and not from a private individual? Foundational principles suggest section 2(b) has internal limits that prevent private speakers from co-opting the government’s voice. This paper reviews section 2(b) doctrine and reveals that existing law does not adequately facilitate consideration of this government nexus, resulting in confusion in lower courts on how to approach these factual scenarios. Drawing on American sources, this article proposes a solution: introduction of a “government speech doctrine.” Such a doctrine, properly modified to take into account the unique Canadian context, could bring conceptual clarity to this area of law
Introduction: Symposium in Honour of Bruce Ziff
No full textIntroductory article for the Symposium in Honour of Bruce Ziff
Equitable Crime and Constructive Punishment: Deemed and Actual Agency Gains in Canadian Law
No full textThis article deals with the test for whether proprietary relief is warranted by way of constructive trust, as set out in Roy Goode’s essay “Property and Unjust Enrichment” and later adopted by the Supreme Court of Canada in Soulos v. Korkontzilas. The article hones in on the second element of the Soulos test — the deemed agency gain — proposing that there cannot be a deemed agency gain where the wrong committed was not connected to an action authorized by the plaintiff. Therefore, the article proposes that deemed agency gains cannot exist in cases involving bribery or other corruption, and as such cannot be used to obtain a constructive trust in these cases, unless the specific act of corruption was in fact authorized by the plaintiff
Preparing for a Mid-Life Crisis: Section 92A at 40
No full textSection 92A, the resources amendment, was added to Canada’s foundational constitutionaldocument in 1982 at the same time as Canada patriated its Constitution from Westminster and adopted the Canadian Charter of Rights and Freedoms. The provision was designed to confirm and enhance the legislative and executive authority of provincial governments. As we approach the fortieth anniversary of section 92A, Canada appears destined for another federation-defining conflict over resource-related issues including the construction of new pipelines, legislative and policy responses to greenhouse gas emissions, and the reach of federal environmental impact assessment legislation. This article begins by examining the events that led to the adoption of section 92A and next assesses both how litigants have invoked section 92A and how Canadian courts have interpreted its text in the 40 years since its adoption. Earlier decisions relied on section 92A to confirm the validity of provincial or municipal legislation, but, in more recent cases, section 92A has been invoked to question the validity or applicability of federal legislation. Section 92A arose out of conflict with respect to trade in resources and the right to appropriate the economic rent associated with developing those resources. The current conflicts focus on the power to make laws with respect to the development and exploitation of those resources
Pore Space as a Resource: A Discussion of the Policy and Regulatory Framework for Carbon Capture, Utilization, and Storage
Full text linkReinforced by the International Energy Agency (IEA), carbon capture, utilization, and storage (CCUS) is currently the only available group of technologies that reduce emissions in key hard to abate sectors and capture CO2 emissions that enable low carbon value chains such as hydrogen. Further, CCUS and carbon management play a critical role in achieving future global climate and energy goals. In fact, the Intergovernmental Panel on Climate Change and the IEA state that there is no viable path to net zero emissions without CCUS and other carbon management technologies.
Due to concerns regarding energy security and an increase in energy demand, generation of energy from conventional hydrocarbon resources continues to be vital. In Alberta, CCUS is a necessary tool to align provincial climate change goals with the responsible and competitive market of energy production.
Canada’s oil and gas sector has been an early innovator and adopter of CCUS. Given the petroleum and natural gas resources available in the Western Canadian Sedimentary Basin, and the decades-long energy industry expertise established in connection therewith, there is significant potential to further utilize CCUS to create a CCUS-based value chain.
This article provides an overview of the current Canadian regulatory frameworks enabling CCUS, with a focus on the regulatory framework and development in Alberta. Specific topics include: (1) an overview of the regulatory frameworks governing CCUS in key jurisdictions in Canada, including Alberta; (2) an overview of the frameworks for the generation of offset credits from environmental attributes associated with a given project or activity, including both federal and provincial carbon credits and clean fuel credits; (3) a discussion of gaps in policy and legislation; (4) options for regulating “open access” CCUS hubs and CO2 pipelines; and (5) an overview of the various governmental incentives for CCUS projects, including federal and provincial tax credits
Trade and Commerce: Canada\u27s Economic Constitution, Malcolm Lavoie (Montreal: McGill-Queen\u27s University Press, 2023)
No full textBook review of Trade and Commerce: Canada\u27s Economic Constitution, by Malcolm Lavoie
Bruce Ziff\u27s Property Pedagogy
No full textThis essay discusses Bruce Ziff’s contributions to property law pedagogy, highlighting four aspects of his teaching: (1) the breadth of the course materials used in his classes; (2) the ways in which he sought to place property law in in its social, political, historical, and economic context; (3) his collaborative approach to property law teaching; and (4) his continual commitment to innovation in the classroom. The author concludes by thanking Professor Ziff for his many contributions
Remedying Unreasonable Delay
No full textIn R. v. Jordan, the Supreme Court of Canada adopted presumptive ceilings for determining whether the right to be tried within a reasonable time is violated. In so doing, the Supreme Court eschewed any balancing of individual and societal interests at the rights stage of analysis. Unfortunately, the Supreme Court did not simultaneously reconsider its prior determination that the only remedy for unreasonable delay is a stay of proceedings. As balancing individual and societal interests is fundamental to determining whether a stay is justified, the next logical step is to shift this balancing to the remedial stage of analysis. In so doing, the accused should typically be required to prove that the harm suffered irreparably undermines fair trial interests before proceedings are stayed in response to unreasonable delay. A stay of proceedings in these circumstances, however, ought not be restricted to “non-serious” crimes. Where the harm relates to the accused’s liberty or security interests, other remedies should be granted. The Senate’s recent proposal to grant monetary rewards is feasible if supplemented with other remedies that limit the continued impact of delay on an accused’s liberty and security interests. I nevertheless maintain that using financial compensation to remedy the impact of delay on these interests ought to be approached with caution as it could encourage complacency towards delay. To counteract this incentive, stays of proceedings should remain available if the Crown uses this narrower remedial structure as a means to “buy time” to conduct prosecutions
Reflections on the Supreme Court of Canada\u27s Decision in R. v. Sharma
No full textThe criminal law has been criticized for failing to engage with the right to equality when delineating its permissible scope. While these criticisms are forceful, they must also be tempered by the structure of judicial review. The Supreme Court’s recent decision in R. v.Sharma is illustrative. Despite an avid dissent, a narrow majority found that Parliament’s decision to amend a prior sentencing law that conferred a benefit to a minority group could not by itself sustain a violation of the right to equality. This approach is principled as any other interpretation would undermine the constitutional framework for punishment under the Canadian Charter of Rights and Freedoms. This follows as the essence of the constitutional challenge in Sharma concerned whether refusing to permit a conditional sentence order for select offences would result in an unconstitutional punishment. By finding a violation of the right to equality, the minority circumvented the gross disproportionality standard required to declare a punishment unconstitutional under section 12 of the Charter. In its place, the minority would have imposed a mere proportionality standard under section1 for any punishment laws that retract a previously granted benefit to a minority group. Such an approach might be justifiable if there were no other means to consider equality interests when determining the constitutionality of sentencing laws. However, that is not the case as the reasonable hypothetical offender analysis under section 12 can ensure that the equality considerations implicit in the criminal law are given due weight. While conducting the analysis under section 12 does not change the result in Sharma, it upholds the principle underlying that provision requiring the scope of sentencing policy to remain reasonably broad to account for differing political opinions about the appropriate use of punishment
Constitutional Retconning: History in Judicial Reasoning and Changes in Constitutional Meaning
No full textRetroactive continuity or “retconning” describes a situation where the established history or continuity of a narrative is adjusted or reinterpreted to align with new developments in the story. The concept was popularized in reference to comic books and television shows. This article develops and applies a novel concept, constitutional retconning, to examine how the courts have relied on retconning as an interpretive tool when redefining the meaning or scope of constitutional provisions. I explore the implications of constitutional retconning by analyzing three important instances where the courts have established a reimagining of history or new understandings of historical facts. Because retconning concerns historically established narratives about the constitution, constitutional retconning can have profound implications for changes in constitutional meaning and our understanding of the development of the constitution