ALBERTA LAW REVIEW最新文献_第10页

Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law 对合理性审查后果的再思考:法律问题上的判决与合理性审查

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/alr2499

M. Biddulph

{"title":"Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law","authors":"M. Biddulph","doi":"10.29173/alr2499","DOIUrl":"https://doi.org/10.29173/alr2499","url":null,"abstract":"The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45141192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Alberta’s Oil Sands: An Unsecured Asset? An Analysis of the Mine Financial Security Program in Relation to Surface Mining of the Alberta Oil Sands 阿尔伯塔省的油砂：无担保资产？阿尔伯塔油砂露天开采的矿山财务保障方案分析

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2501

Michelle Cook

{"title":"Alberta’s Oil Sands: An Unsecured Asset? An Analysis of the Mine Financial Security Program in Relation to Surface Mining of the Alberta Oil Sands","authors":"Michelle Cook","doi":"10.29173/ALR2501","DOIUrl":"https://doi.org/10.29173/ALR2501","url":null,"abstract":"This article conducts a comprehensive review of Alberta’s Mine Financial Security Program (MFSP), the provincial program that governs the collection of financial assurance for reclamation liabilities (also known as “reclamation liability security,” “financial reclamation sureties,” or “closure bonds”). This article assesses the MFSP program in relation to surface oil sands mining. It concludes that while the recently implemented MFSP has improved some aspects of the oil sands reclamation security regime, Alberta’s MFSP still suffers from issues of transparency, inadequate collection of financial security, and utilization of underinclusive classifications of environmental liabilities. Moreover, this article analyzes the particular risk that oil sands assets have of “stranding” (namely, being unanticipatedly or prematurely written off, downwardly revalued, or converted to a liability) as well as how stranding would impact Alberta’s financial assurance regime.This article concludes that while the oil sands are at a heightened risk for asset stranding compared to the international oil industry as a whole, international oil and gas assets are unlikely to become completely stranded. This article also finds that investors have likely already priced the risk of asset stranding at 1.5–2 percent and will be unlikely to readjust their portfolios unless divestment campaigns strengthen or environmental legislation becomes more certain. The MFSP uses a method that does not account for large fluctuations in oil prices, nor does it sufficiently account for the risk of partial stranding. If asset stranding were to occur, the only way the Alberta government would be able to afford the costs of reclamation would be to paradoxically develop the very resource that was defaulted on, against the environmental legislation or political pressures that caused the stranding.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43052343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Medical Assistance in Dying: Canadian Registry Recommendations 临终医疗救助：加拿大注册处建议

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2497

Q. C. R. M. Carter, Brandyn Rodgerson, M. Grace

引用次数: 0

Novel Uses of the Charter Following Doré and Loyola 多拉和洛约拉之后宪章的新用途

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/alr2498

Edward Cottrill

{"title":"Novel Uses of the Charter Following Doré and Loyola","authors":"Edward Cottrill","doi":"10.29173/alr2498","DOIUrl":"https://doi.org/10.29173/alr2498","url":null,"abstract":"Doré and Loyola affirmed that administrative decision-makers have a duty to balance statutory aims and values protected by the Charter. In several cases, decision-makers have weighed Charter protections and values on both sides of a contested issue. Sometimes this is a matter of a genuine conflict between different Charter restraints on the state. In other situations, Charter values or even Charter rights have been found to weigh on the side of state action, providing support and justification for an otherwise Charter-infringing state act. Such cases challenge an orthodox understanding of the Charter’s nature and role. In this article, the author describes the orthodox view of the Charter within a broadly classical liberal model; that is, as being a restraint on the state, as affecting government rather than private conduct, and as being a source of few free-standing positive entitlements. The author then describes the pre-Doré exceptions to these basic precepts and contrasts the uses made of the Charter by administrative decision-makers via the balancing prescribed in Doré and Loyola, noting where the outcome or analysis has challenged an orthodox conception of our Charter. The article then situates these developments within contemporary discussions of the relevance of orthodox liberal constitutionalism in Canada.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42726465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

An Ethical-Legal Analysis of Medical Assistance in Dying for Those with Mental Illness 精神疾病患者死亡医疗救助的伦理-法律分析

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2500

R. Tanner

引用次数: 6

The Shopkeeper’s Privilege and Canadian Tort Law 店主特权与加拿大侵权行为法

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2496

M. Mcinnes, A. Simpson

引用次数: 0

Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap 电子文本通信的同意搜索：摆脱零和陷阱

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2494

S. Penney

{"title":"Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap","authors":"S. Penney","doi":"10.29173/ALR2494","DOIUrl":"https://doi.org/10.29173/ALR2494","url":null,"abstract":"In R. v. Marakah, a majority of the Supreme Court of Canada decided that senders of electronic text communications maintain a reasonable expectation of privacy over their messages even after they are copied to recipients’ devices. The dissenters argued, in contrast, that any such expectation is objectively unreasonable given senders’ inability to control the messages after delivery. The Supreme Court did not settle the question, however, of whether this expectation can be defeated by a recipient’s voluntary decision to allow police to search his or her own device. Indeed, each side intimated that such a consent would be difficult, if not impossible, to obtain.This article argues, nonetheless, that courts can and should use consent doctrine to avoid the “zero-sum” model of section 8 adjudication that characterizes the majority and dissenting reasons in Marakah. Properly interpreted, that doctrine preserves Marakah’s core holding — that senders do not reasonably expect unfettered state access to their received text communications — while also giving effect to recipients’ autonomous decisions to assist police.However, as with oral communications, a recipient’s consent to disclose a sender’s text communications to police should only defeat the sender’s expectation of privacy over preexisting messages. Contrary to several lower court decisions, this article argues that the acquisition of future, incoming communications from recipients’ devices (with or without consent) invades senders’ reasonable expectations of privacy under section 8 of the Charter and constitutes an “interception” requiring judicial authorization under section 184.2 of the Criminal Code.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41626366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Claire L’Heureux-Dubé: A Life, Constance Backhouse (Vancouver: UBC Press for the Osgoode Society for Canadian Legal History, 2017) Claire L ' heurex - dub<s:1>: A Life, Constance Backhouse著(温哥华:UBC Press for the Osgoode Society for Canadian Legal History, 2017)

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2504

Elizabeth Adjin-Tettey, Gillian Calder, P. Cochran, Maneesha Deckha, Freya Kodar, H. Lessard, P. Parmar, K. Plyley, Mark N. Zion

引用次数: 0

A Systematic Review of the Indian Mining Regulations in Comparison to Saskatchewan Mining Law Where the First Nations Holds Mineral Title 印度采矿法规与第一民族拥有矿产所有权的萨斯喀彻温省采矿法的系统回顾

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ALBERTA LAW REVIEW Pub Date : 2018-10-09 DOI: 10.29173/ALR2503

P. Mills

引用次数: 0

Apples to Oranges? Gendered Damages in Personal Injury Litigation: A Focus on Infant Claims 从苹果到橙子?人身伤害诉讼中的性别损害赔偿:以婴儿索赔为中心