Alberta Law Review (ALR)
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The Emergence of a Normative Principle of Co-operative Federalism and its Application
No full textThis article provides an overview of co-operative federalism within Canadian legal history and jurisprudence. The author contends that co-operative federalism has expanded to now comprise two distinct branches. “Coordinative co-operation” is the intentional coordination by federal and provincial governments to enact policy that requires the constitutional powers of both. The author contends a new branch, “conjunctive co-operation,” directs courts to prefer interpretations of federal and provincial legislation that do not bring them into conflict, allowing them to operate conjunctively. This article outlines the application of both branches in the resolution of contemporary interjurisdictional disputes and considers their implications. Finally, the article attempts to place co-operative federalism within Canada’s constitutional doctrine.
Fracking and Water Use in Alberta: A Critical Review
No full textIn Alberta, there is an endless debate over environmental conservation and economic development. This article bridges this gap by recognizing the need for water conservation and, at the same time, proposing a regulatory framework that promotes innovation while still facilitating energy development. The current legislative and regulatory frameworks were not designed to address or manage the risks that fracking poses to Alberta’s water scarcity, such as the removal of vast quantities of water from the hydrological cycle. Fracking and its water use in Alberta should be regulated differently so that Alberta can more effectively steward its freshwater resources. While implementing regulatory measures to effectively steward Alberta’s water resources, policymakers should simultaneously strengthen Alberta’s energy industry
Debating the Rule of Law: The Curious Re-enactment of the Solicitation Offence
No full textThe author worries that the rule of law was diminished when Parliament re-enacted section 213(1.1) of the Criminal Code. This “offence” is a refurbished version of the unconstitutional prohibition against communicating in public for prostitution, which was invalidated by the Supreme Court of Canada in 2013. On its face, section 213(1.1) appears to create an offence to offer sexual services near select public places where minors might be present. But on the ground, section 213(1.1) is not actually operating as an offence at all — at least according to government politicians responsible for passing section 213(1.1) into law and police officers who lobbied for its re-enactment.
By delving into the lawmaking process, the author discovers evidence that section 213(1.1) was instead re-enacted to operate as a warrantless detention power. If the debate between legislators and police is taken seriously, de facto detention under section 213(1.1) appears to serve as a means to two ends: (1) to extricate people who sell sex out of the industry; and (2) to collect evidence of graver offences by pimps and johns. Neither of these two ends involve charging the citizens who are technically criminalized under section 213(1.1), yet who are otherwise cloaked in moral blamelessness by legislators and police.
Despite the benevolent motives of legislators and police, the author identifies four interconnected rule of law problems with de facto detentions under section 213(1.1): unaccountability to law, misallocation of power, unanswerability to citizens, and inaccessibility to justice. The author argues that distorting a criminal offence into a de facto detention power deprives people not only of constrained choices, but also of vital procedural safeguards, without which they cannot seek the answers, accountability, and justice that everyone deserves
The Walking Wounded: Failure of Self-Represented Litigants in 2017 Supreme Court of Canada Leave to Appeal Applications
No full textSelf-Represented Litigants (SRLs) are persons who appear in court and tribunal proceedings without a lawyer. They are rarely successful at the Supreme Court of Canada. Despite SRLs being the subject of considerable attention as a facet of the "access to justice crisis," this article reports the first statistical quantitative investigation of a Canadian SRL population. This article examines all of the SRL leave to appeal applications at the Supreme Court of Canada in 2017, categorizing them by party type, legal issue, and level of sophistication. No procedural obstacles were identified to SRL participation at the Supreme Court. Instead, the failure of SRLs in Supreme Court proceedings results from the substance of their filings
Punishing White-Collar Crime in Canada: Issues With the Economic Model of Crime and Punishment
No full textWhite-collar crime differs from other types of crime in both how the public perceives it and the socio-economic standing of the typical perpetrators. Nevertheless, white-collar crime has significant negative social and economic effects. In formulating deterrents against white-collar crimes, economic models using cost-benefit analyses that fix relative values to fines and incarceration have been influential. However, these economic models are not in keeping with judicial sentencing in Canada and do not accurately reflect current criticisms about the social inequalities associated with fines and incarceration. Economic models contend that large fines reinforced by possible incarceration are the best sentencing deterrent for white-collar crimes in Canada. Yet, as this article argues, a better approach is preventing white-collar crimes through government regulation and corporate structures that eliminate opportunities for criminal conduct
Charter Applicability to Universities and the Regulation of On-Campus Expression
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The Grim Parade: Supreme Court of Canada Self-Represented Appellants in 2017
No full textSelf-represented litigants (SRLs) are persons who appear in legal proceedings without a lawyer. This study is a document- and court record-based quantitative, statistically valid profile of 122 SRLs who filed 125 leave to appeal applications in the Supreme Court of Canada in 2017.
Male SRLs outnumbered female SRLs almost 3:1. Most SRLs focused on their perceived rights and did not engage Canadian law. Instead, most study SRLs claimed lower court judges were biased or engaged in illegal or criminal conduct. Over a third of the study SRLs filed two or more Supreme Court leave to appeal applications over their lifetime. One filed 19 applications, all unsuccessful. Nearly one in four study SRLs were subject to court access restrictions, an extreme form of litigation management. Problematic litigation activity was associated with repeated Supreme Court appearances. Only a small number of study SRLs self-identified or were identified by a court as having mental health issues, but nearly one quarter of SRLs’ litigation records exhibited an atypical pattern of expanding litigation identified by mental health professionals as a characteristic of querulous paranoia.
This investigation successfully developed a profile of the 2017 Supreme Court leave to appeal SRL population and their litigation activity and provides a model for future parallel investigations. This population is very unlikely to be representative of Canadians SRLs as a whole, but it represents a comparator and identifies characteristics that are potentially useful to understand what occurs in other Canadian appeal courts
Recent Legislative and Regulatory Developments of Interest to Energy Lawyers
No full textThis article provides a high-level overview of regulatory and legislative developments in Canada from mid-April 2020 to the end of March 2021. We reviewed statutes, regulations, case law, regulatory decisions, and industry practices from provincial, territorial, and federal authorities. The topics of note include the challenges related to climate change and decarbonization, the opportunities that decarbonization provides for evolving technology and mechanisms for low carbon energy through the use of hydrogen and small scale nuclear, and the regulatory gaps related thereto. We address developments in regulatory efficiency, set out how the Vavilov decision has been applied to energy regulatory decisions, discuss energy regulators’ obligations to consider the honour of the Crown outside of the “duty to consult,” and lastly, discuss the potential effects on project approvals and achieving reconciliation with Indigenous peoples
Toward a Framework to Define the Outer Boundaries of Good Faith in Contractual Performance
No full textSince Bhasin v. Hyrnew, the application of good faith in contract law has varied and its outer boundaries have been unclear. To understand the variance in judicial applications of good faith, this article offers a framework that both explains judicial tendencies and prescribes a template for judges to justify differing approaches. The proposed framework distils the application of good faith to the interaction between institutional variables (the factors that determine judicial reasoning) and transactional variables (factors that arise from the context in which the contract arises). The article develops a taxonomy of the various alternative ways of approaching the doctrine of good faith resulting from the overlap of two institutional variables, the possible functions that good faith may serve and the criteria that inform the prescriptive content of good faith. The article then demonstrates how transactional variables inform the types of institutional variables a judge employs. Two cases that were recently decided by the Supreme Court of Canada demonstrate that by explicitly adhering to the proposed framework, judges can be more transparent about how and why they employ good faith in differing contexts
