Alberta Law Review (ALR)
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The Dead Sleep Quiet: History of the Organized Pseudolegal Commercial Argument Phenomenon in Canada – Part II
No full textA US-sourced set of false law concepts, “pseudolaw,” entered into Canada circa 2000. A localized version of pseudolaw was adopted by two ideologically distinct Canadian populations: (1) Detaxers, and (2) Freemen-on-the-Land.
This article investigates the fate of these “first-wave” pseudolaw phenomena, and their direct descendants. Each remain largely dead and inactive, despite near ideal conditions for a resurgence. This pattern is unexpected, since pseudolaw thrives and expands in stress situations
Bruce Ziff\u27s Legal History
No full textThis article explores Bruce Ziff’s life and career as legal history. It charts Ziff’s biography, journey in law, and contributions to Canadian legal history. Doing so provides a snapshot of Canadian legal education in transition: from the modest scholarly environment Ziff encountered as a Canadian law student in the 1970s, to the generation of legal scholars he joined in the 1980s, determined to push Canadian law teaching and scholarship in new directions. Canadian legal history came of age in this period as scholars, Ziff included, found in Canada’s legal past deeper stories to tell about law\u27s life on the ground, and exciting new avenues of research for the future
Putting the ABC in ESG: The Role of Anti-Bribery and Corruption Compliance Programs in Enhancing ESG Commitments
No full textInvestors and corporate stakeholders increasingly find insights into a corporation’s performance and long-term sustainability through an organization’s Environmental, Social,and Governance (ESG) program. But, even with the increased focus on ESG programs, gaps still exist for important social and governance risks. Organizations can address these gaps by implementing an anti-bribery corruption (ABC) compliance program as part of their overall ESG program. This article focuses on an ABC compliance program’s role within a broader corporate ESG framework, identifies key performance indicators that address corruption risks, and explains how to monitor and measure an ABC compliance program\u27s success over time. In addition, the article provides a list of objective and verifiable metrics to measure the quality of disclosures made to the public
Leading the Way? Liability Management for the Alberta Oil and Gas Industry
No full textThis article examines Alberta’s oil and gas liability management system, with a particular focus on the new regime established in 2021 by the Alberta Energy Regulator’s Directive 088. The article begins by examining liability management in Alberta prior to Directive 088, up to and including the Redwater decisions of the Alberta Court of Appeal and the Supreme Court of Canada. It then provides a brief overview of Directive 088’s main provisions and reviews its initial impacts on industry and the Orphan Fund Levy. Finally, it compares Alberta\u27s liability management system to that of its world-class peers and a suggested alternative model, and considers whether Alberta is leading the way in oil and gas liability management
Expert Evidence Admissibility: From Rocky Highlands to Swampy Lowlands, via the Medical Standard of Care
No full textThis article proposes an alternative research program for expert evidence law scholarship. The program takes a path that diverges from the majority of writing in this field, in two main ways. First, it eschews the field’s predominant epistemological stance. This stance — termed “epistemological rectitude” — primarily emphasizes fact-finding accuracy and rigorous admissibility or “gatekeeping” standards. Second, the proposed program adopts a narrower focus of inquiry than that usually taken: instead of experts in general, the program examines specific types of experts employed in specific types of cases to prove specific elements in dispute. Part I begins by presenting the current state of expert evidence law and highlighting the epistemological rectitude animating both case law and commentary. It then explains how epistemological rectitude elides the degree to which expert evidence law is highly pragmatic and contextual in its practical operation, and the problem that this entails for legal knowledge. To respond to this problem, the proposed program employs a context-driven method, presented at the end of Part II. Part III unpacks and defends this method by adopting a narrow focus: expert evidence on the medical standard of care in malpractice cases. This narrow focus is adopted to show: the limitations inherent to studying experts in general; the extent to which contextual differences matter to the law’s operation; and the knowledge to be gained by narrowing inquiries in this manner. The conclusion outlines in broad terms how the proposed program can be developed
Banks as Delegated Regulators of Technology
No full textCanada’s largest banks rely on private developers of regulatory technology (RegTech) to comply with the requirements of the Office of the Superintendent of Financial Institutions (OSFI). RegTech’s algorithms allow banks to organize unstructured data, identify, assess and mitigate risk, and generate and submit reports. While the use of RegTech significantly facilitates financial reporting and compliance, it also presents risks. The unsupervised process of translating the language of regulations into computer code may lead to the misinterpretations of regulatory requirements. Also, due to the opacity of private algorithms, mistakes of RegTech instruments may go unnoticed, resulting in systemic failures.
In light of these risks, this article examines the potential of Canada’s federally regulated banks to act as delegated regulators of RegTech. Drawing on OSFI’s previous initiatives, this article suggests that the regulator create RegTech quality standards and delegate the enforcement of these standards to banks through outsourcing contracts. These contracts should contain publicly mandated RegTech specifications and clauses that reserve the banks’ rights to monitor, audit, and punish non-compliant RegTech companies and share information with OSFI.
This article also discusses the benefits and policy implications of delegated regulation of RegTech. First, by imposing a public duty on the banks, delegated regulation causes changes in corporate governance. Second, it allows the under-resourced regulator to use banks as regulatory resources. Third, it extends the application of public norms to those RegTech companies that otherwise would have avoided public oversight. Fourth, it reshapes the market for RegTech services by forcing banks to develop in-house technology that, in the long term, may be a cheaper and less risky alternative to outsourcing.
In conclusion, this article addresses the arguments that may be levelled against the delegated regulation of RegTech and discusses opportunities for more direct involvement of the regulator in technology-driven reporting and compliance
Breaches, Bargains, and Exclusion of Evidence: Bringing The Administration of Justice Into Disrepute
No full textThe test for both exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (Charter) and whether a sentencing judge may divert from a joint sentencing recommendation is ostensibly the same: whether the admission of evidence or imposing the proposed sentence “would bring the administration of justice into disrepute.” Despite this, jurisprudence illustrates a vast divergence in what constitutes disrepute: the onerous standard applied to divert from a joint sentencing submission is all but absent when exclusion of evidence is considered under the Charter.
This article addresses this disparate treatment in two parts. First, we argue that courts have consistently misapplied section 24(2) since the Supreme Court of Canada’s decision in R. v. Grant, as determinations of evidence’s admissibility under this section have focused almost exclusively on the factors articulated to guide the analysis, rather than the ultimate question to be determined. Moreover, courts have interpreted the phrase “bring the administration of justice into disrepute” differently depending on context — a trend that ought not to continue. We posit that the disrepute standard ought to be interpreted and applied consistently, with the recognition that “bringing the administration of justice into disrepute” is an exceptionally high bar.
Second, we hope to provoke a broader reliance on the generous remedial powers conferred in section 24(1) of the Charter. This shift — which the Supreme Court has hinted at in recent decisions — would significantly change the adjudication of constitutional issues in criminal proceedings. We hope that the framework we propose for interpreting section 24 will stimulate attention to the practical benefits of eschewing a one-size-fits-all approach to Charter remedies and instead adopting a principled method that responds to each case’s individual circumstances.
 
Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law, Kent Roach (Cambridge, UK: Cambridge University Press, 2021)
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Reflections on COVID-19 And Criminal Law: How Does Judicial Doctrine Function in A Crisis?
No full textThis article reviews the impact of COVID-19 on judicial decision-making in certain areas of criminal law. Reviewing decisions from the areas of bail, sentencing, and trial within a reasonable time, the author analyzes how COVID-19 has been integrated into legal doctrine. The author concludes that doctrines are flexible enough to accommodate COVID-19 concerns. At the same time, doctrine is firmly entrenched, meaning the pandemic has not presented the opportunity for judges to rethink incarceration as some had hoped