⚖️ Taking a stand

To: Hearsay Readers

Happy Monday everyone and welcome to all the newest Hearsay subscribers.

I participated in the first phase of my annual holiday tradition this weekend (spending an inordinate amount of time thinking about Black Friday and Cyber Monday deals without actually buying anything). We’ve only got a few days left in November, which means phase two is right around the corner (frantic last-minute holiday shopping at regular prices). Enjoy November while it lasts.

Dylan Gibbs

TODAY’S DOCKET

  • Federalism: Alberta’s Sovereignty Act finally sees some action

  • Round up: Prosecutor accused of discrimination, Kingston can’t tear down homeless encampment, and driving bans don’t violate Indigenous hunting rights

FEDERALISM

Alberta goes sovereign

Sunrise on horizon behind filed filled with a mix of natural gas power plants, wind turbines, and solar panels

Premier Danielle Smith is finally making use of her prized possession, the Alberta Sovereignty within a United Canada Act. It was the very first law her government passed and she’s made plenty of threats to use it since. Now, it’s showtime — the government is using the Act to fight back against the federal government’s draft Clean Electricity Regulations.

The details aren’t out yet — we’re waiting on the specific measures the government plans to put in place. But in the meantime, here’s a primer on the Sovereignty Act and the federal regulations that ruffled Alberta’s feathers.

What’s Alberta upset about? The Clean Electricity Regulations are still in draft form, but the regulations will force companies that generate electricity to almost completely eliminate their greenhouse gas emissions starting in 2035. That’s bad news in Alberta, where most electricity comes from natural gas. Smith says a 2050 target might be achievable, but 2035 is unrealistic.

What the heck is a Sovereignty Act? It’s Alberta’s defence against “harmful federal laws”. The idea is that the government can label a federal law as harmful to Albertans and take action in response:

  • Alberta can modify provincial laws and issue directions to provincial bodies (like a board or agency that provides a public service).

  • Alberta can’t simply opt out of federal laws or direct Albertans not to follow federal laws. You didn’t miss a chapter on Canadian federalism — that would be unconstitutional.

What’s next? The motion the government is proposing today will declare that the Clean Electricity Regulations are unconstitutional and authorize action in response. Alberta can’t just say the Clean Electricity Regulations don’t apply to Alberta power producers, so we can expect something a bit more creative — like what Saskatchewan is doing to try and avoid paying carbon tax. More to come on the implementation once the details are public.

After all that you might be asking — can’t Alberta just challenge the Clean Electricity Regulations in court? Well, that’s not as fun as sending a message to the feds. So stop with the questions and just let Alberta play with its shiny new toy.

HEARSAY ROUNDUP

Canadiana

🧐 The Law Society of Ontario is alleging professional misconduct by a Crown prosecutor. That alone is a rare occurrence, but the nature of the allegation is extra surprising — the LSO alleges the Assistant Crown Attorney “engaged in discriminatory conduct and/or harassment against Indigenous accused persons.” No other details have been made public.

⛺️ Last week brought another win for housing advocates and another blow for Canadian municipalities hoping to tear down homeless encampments. An Ontario judge said Kingston’s ban on overnight shelters is unconstitutional — the City needs to allow temporary shelters in parks.

🚘 The Nunuvut Court of Justice said driving bans for impaired driving convictions don’t violate the Charter rights of four Inuit hunters. The hunters argued that not being able to drive would impact their ability to hunt. The Crown conceded that the driving prohibitions prevented the men from hunting and amounted to cruel and unusual punishment, but the judge took a different view of the evidence:

The evidence did not establish that a driving prohibition would prevent any of the applicants or a reasonable hypothetical offender from hunting. The evidence established that the applicants and hypothetical offender would only have to be flexible in the future and cooperate with others to participate in the hunt. Inconvenience cannot, and does not, conflate with constitutional infringement…

I find, despite the concession of the Crown, that the mandatory one-year driving prohibition does not violate section 12.

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