Prisoners’ right to do legal research, the #GreenhouseGas case in #Alberta (#ABpoli) and Professional Misconduct in Re-Litigating Cases

Law Society of Ontario v Mazinani, 2020 ONLSTH 24

The LSO brought a CUPE motion to admit several orders into proceedings against the respondent lawyer. The LSO alleged that the respondent lawyer failed to comply with an order of Deputy Judge Shapiro and as such, the respondent lawyer failed to act with integrity and failed to encourage public confidence in and respect for the administration of justice. The panel held that the LSO must prove those elements of the alleged misconduct in the main conduct hearing. The panel held that the orders are admissible as evidence in the conduct proceeding and also held that the respondent lawyer is not precluded from re-litigating certain issues, but precluded from re-litigating other issues, namely the order of Shapiro, DJ.

Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 75

This is a reference decision reviewing the constitutionality of certain parts of the Act, namely Parts 1 and 2. The court held that these parts are unconstitutional in their entirety. Several parties intervened including Ontario, New Brunswick, Saskatchewan Power Corporation and SaskEnergy Incorporated. They supported Alberta’s position. Alberta’s position was that the Act was wholly unconstitutionally and does not fall within the national concern branch of the federal government’s peace, order and good government power. The interveners all viewed the matter of the Act or its pith and substance is the regulation of greenhouse gas emissions and to allow the federal government to regulate same would interfere with the provinces’ jurisdictions to regulate their own natural resources. Saskatchewan maintained its position in the SK reference, primarily that the Act involves a tax that Canada improperly delegated to the executive branch of government (contravening section 53). Canada maintained its position that the Act fell under its national concern doctrine by regulating GHG emissions to establish minimum national standards integral to reduction of same. Climate Justice, Athabasca Chipewyan First Nation, the Assembly of First Nations and the Canada Public Health Association supported Canada’s position. The Indigenous groups stressed the need to read the Act in light of section 35 of Constitution Act, 1982. There were other positions raised. Among other things, the court held:

For a “matter” to qualify as a matter of national concern, it must have a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution: Crown Zellerbach at 432. If not, the national concern doctrine cannot be successfully invoked. When the federal government claims, as here, a broad head of power, this will often be the most significant issue.

The court ultimately agreed that the Act substantially overruled the provinces’ powers under several heads of powers and their proprietary rights as owners of their national resources.

Watts v. Canada (Attorney General), 2020 FC 209

Mr. Watts is a federal offender subject to a Long-Term Supervision Order. Mr. Watts filed an application for judicial review to be heard in April 2020. Mr. Watts is subject to several conditions and has been returned to custody on several occasions for breaches or alleged breaches of the special conditions. Mr. Watts represented himself in this matter and will do so at the hearing since he is unable to obtain legal aid for such purposes. Mr. Watts seeks various forms of relief including:

  • An Order that CSC not transfer the Applicant prior to his April hearing and either transport him to Halifax or allow him sufficient time to travel there on his own.
  • An Order that CSC not read the Applicant’s legal files, mail, research or writings kept under his lock and key other than to search for contraband.
  • That CSC be ordered to provide the Applicant with access to a laptop or let him purchase an older computer without the capability of accessing the Internet.
  • That CSC not return him to Parrtown but to a CRF in Halifax, Moncton or St. John.
  • That PBC and CSC not provide his information to the police or release it to the media.
  • That CSC not require him to wear an Electronic Monitoring Device (EMD or ankle bracelet).
  • That he be allowed to obtain employment with no restriction other than to call in his location at lunch time each day.

Case law cited by the court stated that Mr. Watts must demonstrate a prima facie case and the court held that “it is not clear that Mr. Watts has a strong prima facie case which would justify the issuance of a mandatory interlocutory injunction that he not be involuntarily transferred again” (para 9). Mr. Watts was previously transferred, and the AG alleges this was “coincidental” (para 9) and it was due to the refusal of the residential facilities as a result of Mr. Watts’ misbehaviour. The court held that some of the complaints can be addressed through administrative means (i.e. information provided to police or to the media). The court held that the police and correctional authorities should be able to supervise Mr. Watts without denying him employment opportunities while under the supervision order. Other requests remain open to Mr. Watts. The court ordered Mr. Watts’ to allow, with limits, adequate access to a computer and to Internet based legal research websites such as CanLII or the Federal Court website in preparation for the April hearing.

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