Alberta Law Review (ALR)
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Rethinking the Instrumental Rationality Principles of Fundamental Justice
No full textIn Canada (Attorney General) v. Bedford, the Supreme Court of Canada fundamentally altered its approach to proving breaches of the instrumental rationality principles of fundamental justice. In response, commentators have charged that the Supreme Court’s new “individualistic” approach makes it too easy to prove a breach of the principles of fundamental justice. This is mainly a result of the Supreme Court’s expanded understanding of overbreadth, which now requires only that a law apply in an arbitrary manner to a single person. The problem with the Supreme Court’s new approach, however, is not necessarily with individualizing the analysis. Instead, upon revamping the instrumental rationality principles, the Supreme Court neglected to ask a more basic question: does the new conception of each principle still meet the requirements to qualify as a principle of fundamental justice? Although the arbitrariness and gross disproportionality principles are still integral to fundamental justice, I contend that the individualized conception of overbreadth has inadequate societal consensus to qualify as a principle of fundamental justice
Dispute Resolution in the Energy Sector: Wither Thou Goest?
No full textThis article examines developments in international commercial arbitration and investment treaty arbitration relevant to the energy sector in Canada and the United States and discusses their advantages and disadvantages. Jurisdictions in Canada and the US have taken a wide variety of approaches to legislative schemes and their interpretation. This has created uncertainty respecting the involvement of the courts in cross-border disputes where the parties have agreed to an arbitration clause. Further, the Canada-United States-Mexico Agreement has eliminated investment treaty arbitration between Canada and the US which existed in the North American Free Trade Agreement, limiting the options of investors to pursue investment treaty claims. These developments may clarify how energy sector participants should strategically manage their contractual arrangements and arbitration clauses and approach disputes
Sealed and Delivered: A Theory of Unilateral Transfer at Common Law
No full textSome view the sealed instrument as a relic of the common law that is incompatible with modern contract law theory. However, the fact remains that the seal is a valid method to create a binding agreement in Canadian law. This article proposes a theoretical justification of the seal that better places it within contract theory. The author argues that instead of understanding seals as analogous to a consideration-based promise, we should understand seals as analogous to an executed gift. Through this analogy, the seal can be understood as an agreement that creates an immediate and unilateral transfer of rights
The Complex Legacy of R. v. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law
No full textThis article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally
Exploring New Shores: An Overview of the Legal Landscape Relating to the Supply and Transportation of LNG from Canadian Ports
No full textThis article provides an overview of the key areas of the legal landscape downstream of liquefaction terminals in the context of Canadian LNG projects. This will be of particular interest to those involved in Canada\u27s nascent LNG industry, including project proponents, buyers and sellers of LNG, and owners and operators of LNG carriers and other vessels intending to load LNG, either as cargo or bunker fuel, from a terminal in Canada.
Canada’s LNG industry has had a rocky start in some respects, with many projects having been shelved and a number of the remaining projects facing an uncertain future due to market conditions, regulatory obstacles, and other challenges. However, there continue to be many factors supporting the development of LNG liquefaction capacity in Canada, including the desire to supply the world with responsibly sourced, cost-effective, and relatively clean fuel, and it is expected that a number of projects will ultimately proceed.
The supply and transportation of LNG from such projects once they become operational will engage the body of maritime laws governing the operation of ships in Canadian waters and, where relevant, Canada’s export laws. Other requirements may additionally apply by virtue of the contractual arrangements typically entered into in connection with such activities. Such regulatory and other requirements, and their place within the broader LNG value chain, are the subject of this article
The Jury is Out: The Controversy About Jury Trials Under the Alberta Securities Act
No full textAfter reviewing the place of securities law enforcement within the Canadian court system, the author traces the Peers and Aitkens decisions from the Provincial Court to the Supreme Court and outlines how these cases dealt with the question of what penalties trigger the right to a jury trial under section 11(f) of the Charter. The author explains how section 11(f) impacts the division of powers by creating a constitutional cap on the prison sentences that are available for violations of provincial law. In light of stiff maximum penalties for violations of securities laws, the Peers and Aitkens decisions raise the question of whether there are constitutional reasons to continue to try regulatory offences by judge alone in provincially appointed courts
Peeling an Orange and Finding an Apple: Aboriginal Rights Litigation, Joseph Magnet & Dwight Dorey, eds.
No full textCharity Law Reform in Canada: Moving from Patchwork to Substantive Reform
No full textThis article explores the history of charity law reform in Canada, focusing on calls for a legislative definition of charitable purposes and changes to the political activity rules. It traces the trajectory of three periods of charity law reform advocacy in Canada since 1978, during which advocates have called not only for reform to the political activity rules but also more broadly for the modernization of Canadian charity law. Despite decades of charity law reform proposals, most charity law reform in Canada to date has constituted a patchwork of administrative and legal changes. Canadian charity law is at a crossroads after the broad recommendations of the 2017 Report of the Consultation Panel on the Political Activities of Charities and the 2018 legislative changes eliminating certain restrictions on charities’ political activities. It is time for more substantive charity law reform, drawing from multiple law reform proposals presented over the last 40 years, and from charity law reform in other jurisdictions
Abandoned Wells Create Liability for Future Subsurface Resource Exploitation
No full textDue to inadequate management of the liability associated with abandoned wells, wellbores will continue to pose a threat to resource development in Alberta. To mitigate this issue, a new development should be burdened with the costs of mitigating the risks of that development. Economic decisions made at the time the risk is to be imposed, in the present, will be more reasoned. Companies that follow the regulations should be able to reasonably expect that compliance with the rules will alleviate liabilities in the future. The regulated industry should be able to trust the expertise of a regulator to ensure the protection of the environment, public safety, and the subsurface resource
