The Power of Perspectives

The Canadian Bar Association

Doug Beazley

The Supreme Court

Stop, border ahead

By Doug Beazley January 15, 2019 15 January 2019

Stop, border ahead

 

If you’ve been watching the news, you could be forgiven for thinking that all the action in Indigenous law these days is happening out west, where First Nations protesters have been facing off with police over a controversial natural gas pipeline.

On the opposite coast, meanwhile, a file is going forward to the Supreme Court of Canada that could keep the specialists busy for decades to come. In April, the high court will hear an appeal filed by Newfoundland and Labrador in a case that pits provincial jurisdiction against Indigenous rights — with almost a billion dollars hanging in the balance.

In 2013, the Uashaunnuat Innu, a First Nation claiming traditional territory straddling the boundary between Quebec and Newfoundland/Labrador, filed a lawsuit in civil liability against the Iron Ore Company of Canada (IOC, majority owned and operated by mining giant Rio Tinto) and the Quebec North Shore and Labrador Railway Company Inc. They’re claiming $900 million in damages, accusing the mining company and the railway of causing environmental destruction and displacing traditional activities such as hunting and fishing through its operations at Schefferville, Que. and Labrador City.

Photo licensed under Creative Commmons by Neil and Kathy Carey

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Climate law

Smart business money is on carbon tax

By Doug Beazley January 11, 2019 11 January 2019

Smart business money is on carbon tax

 

Assuming everything goes to plan (and the plan isn’t quite what it used to be), starting in April the Trudeau government will be imposing a carbon tax on provinces that have no carbon pricing mechanisms of their own.

Right now, that’s four provinces — Ontario, Saskatchewan, Manitoba and New Brunswick. (P.E.I., Yukon and Nunavut are adopting the federal carbon pricing scheme voluntarily.) The federal Conservatives under Andrew Scheer plan to make the fight against carbon pricing a key part of their 2019 election campaign. Ottawa’s carbon strategy seems to have split Canada politically, deepening the chasm between resource-dependent provinces like Alberta and Saskatchewan and the eastern urbanites who tend to support environmental initiatives.

Or has it? A recent Angus Reid poll suggested 54 per cent of Canadians now support the carbon tax. The poll tracked a remarkable 18-point spike in support for the tax in Saskatchewan, to 29 per cent. Most Ontarians opposed carbon pricing in July; a narrow majority now supports it, despite Premier Doug Ford’s ferocious opposition. (Ford’s government introduced a climate change plan in late November, but since it doesn’t mandate a carbon price, it’s believed the federal carbon tax will still apply in Ontario.) The shift in support seems to have followed Prime Minister Justin Trudeau’s promise of generous household rebates.

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Justice

Applying the Jordan framework: Are courts placing too much of the burden on the defence?

By Doug Beazley December 18, 2018 18 December 2018

Applying the Jordan framework: Are courts placing too much of the burden on the defence?

 

In R v. Jordan, the Supreme Court put a hard cap on the duration of criminal trials — sending a thrill of panic through the justice system in the process. The ruling is roughly two and a half years old now. Time for the training wheels to come off.

A quick recap: In July 2016, in a 5-4 split decision, the Supreme Court ruled that the 49.5 months it took to complete accused drug trafficker Barrett Jordan’s trial constituted a violation of his Section 11 b Charter right. The justices set presumptive limits on the length of trials going forward: 18 months in provincial court, 30 months in superior court.

Result: multiple stays, some in high-profile cases involving violent crimes — even murder. Wary of the risk of giving lawyers an incentive to slow down trials, the SCC justices added caveats to R v. Jordan. When deciding whether a trial blew past the Jordan limit, judges must include institutional delays that can’t be blamed on the Crown. But delays caused, or waived, by the defence do not count toward the Jordan ceiling.

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Environmental law

Canada’s proposed new Impact assessment: Putting science first?

By Doug Beazley November 15, 2018 15 November 2018

Canada’s proposed new Impact assessment: Putting science first?

 

Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it. Bill C-69 — the Trudeau government’s attempt to reform Canada’s system of environmental reviews for major resource projects — is before the Senate, and making no one particularly happy.

C-69 (it’s actually a package of bills) would take the job of ordering project impact assessments away from the National Energy Board and hand it to a new body, the Impact Assessment Agency of Canada (IAAC). The IAAC is designed to not only conduct environmental assessments of large projects (such as interprovincial pipelines), but to broaden the scope of the assessments to cover the projects’ health, social and economic impacts, their effects on Indigenous peoples and on the federal government’s climate change commitments. The goal, according to the government, is to streamline project assessments through a “one project, one assessment” approach.

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Access to information

Access bill problematic for privilege and judicial independence

By Doug Beazley October 24, 2018 24 October 2018

Access bill problematic for privilege and judicial independence

Few government bills make it to the finish line dragging as much heavy baggage as C-58. The first attempt to update Canada’s government information access and privacy laws in more than three decades is before a Senate committee this week for public submissions.

It’s safe to say its critics outnumber its defenders at this point. Most of the opprobrium has focused on claims that the bill throws up roadblocks for ordinary Canadians trying to access government information, or that it limits the types of information they can see. Former federal Information Commissioner Suzanne Legault called the draft bill a “regression of existing rights.” Her successor, Caroline Maynard, said the bill “fails to deliver” on the federal Liberals’ election commitment to openness and transparency.

The Canadian Bar Association largely agrees — and it has a few quarrels of its own with C-58.

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