The Power of Perspectives

The Canadian Bar Association

Doug Beazley

Environment

The Trans Mountain purchase: Some unresolved legal issues

By Doug Beazley June 6, 2018 6 June 2018

The Trans Mountain purchase: Some unresolved legal issues

 

Given the kind of year Rachel Notley has had, you could forgive the Alberta premier for taking a small victory lap last month after the federal government went all the way for Trans Mountain.

Reacting to the Trudeau government’s announcement that it would be purchasing the existing Trans Mountain pipeline for $4.5 billion — to guarantee construction of a politically-fraught expansion to transport Alberta’s bitumen to the Pacific coast — Notley argued the purchase would put an end to B.C. Premier John Horgan’s legal attempts to frustrate the work.

“As a result of the pipeline having been purchased by the federal government, they have a form of Crown immunity which actually limits the degree to which provincial laws would apply to the project because it’s a federal project now,” Notley told reporters.

“I suspect premier Horgan will be going off to get legal advice … some folks would suggest their reference case will have less relevance than before today’s announcement.”

Is she right? Horgan hasn’t taken off the table his government’s reference case before the provincial Court of Appeal — to rule on the province’s power to restrict the flow of diluted bitumen through British Columbia. Does he know something Notley doesn’t?

 

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Decriminalization

Could Portugal’s drug policy work in Canada?

By Doug Beazley May 22, 2018 22 May 2018

Could Portugal’s drug policy work in Canada?

 

Party policy conventions are to politics what fantasy football is to the real thing. Delegates gather to discuss blue-sky proposals to reshape the nation and the world — banning nuclear weapons, for example, or putting new limits on abortion access. Then the professionals weigh in to explain why those ideas won’t fly.

Sometimes the reasons are legal; sometimes they’re political. Sometimes they’re both — which is what happened when Liberal Party of Canada delegates gathered in Halifax last month to talk about following the Portuguese model on drug policy: decriminalizing consumption and possession of small amounts and diverting users into the health care system. The resolution hadn’t even been adopted before key members of Prime Minister Justin Trudeau’s cabinet were taking turns tossing buckets of cold water on the idea.

“I recognize there’s a lot of comparison with Portugal and Canada but I think we have to develop the Canadian model here,” said Health Minister Ginette Petitpas Taylor.

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Trade

Trade and national security risks

By Doug Beazley April 23, 2018 23 April 2018

Trade and national security risks

 

It’s a measure of just how unsettled things have gotten in the realm of international trade law commentary: the experts have started quoting Frank Zappa.

A quip attributed to the late gonzo rock star — “You can't be a real country unless you have a beer and an airline” — has been making the rounds in emails exchanged by trade lawyers. It’s a gag, of course, but it also reads as a better-phrased version of the justification U.S. President Donald Trump offered for his decision to cite a threat to national security to justify massive new tariffs on imports of steel and aluminium.

“Our steel industry is in bad shape,” Trump tweeted on March 2, before mashing the all-caps key. “IF YOU DON’T HAVE STEEL, YOU DON’T HAVE A COUNTRY!”

Trump has been president of the United States for over a year now, and in that time he has trampled any number of the political norms that serve as the unwritten laws of western democracy — in how he approaches party politics, gender and race relations, diplomacy and the rule of law, to list just the obvious examples.

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Competition law

Competition Bureau takes baby steps on its Big Data learning curve

By Doug Beazley December 20, 2017 20 December 2017

Competition Bureau takes baby steps on its Big Data learning curve

 

Every conversation about competition law and big data seems to start with Google.

The internet behemoth’s parent company took in $78.65 billion over the past three quarters as its stock hit all-time highs. So it probably didn’t break a sweat when the European Union slapped it with a record US$2.7 billion antitrust fine in June — punishment for abusing its dominance of the search engine market by placing its own shopping services above those of competitors on its web search queues.

In the U.S., Missouri recently signalled what could be the start of an antitrust push against Google with an investigation into whether the company has manipulated search results to frustrate competition. And Canada? In April 2016, the Competition Bureau wrapped up an abuse-of-dominance investigation of Google with a report that largely absolved the company of misdeeds (although it did get Google to suspend the use of anti-competitive clauses in its advertising terms and conditions for five years).

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Privacy

Unwarranted: The search and seizure of text messages in Canada

By Doug Beazley December 15, 2017 15 December 2017

Unwarranted: The search and seizure of text messages in Canada

 

Earlier this month, the Supreme Court of Canada dropped a ruling that (depending on where you sit) either affirms the privacy rights of people taking part in digital conversations — or makes the work of police and prosecutors a whole lot harder.

In 2012, Toronto police executed a series of search warrants at four addresses related to a gun trafficking investigation. Three of the addresses linked back to one Andrew Winchester; one linked back to Nour Marakah. When police executed the warrants they seized the suspects’ phones — Marakah’s BlackBerry and Winchester’s iPhone. A subsequent search of the phones found text messages that police said implicated both men in gun trafficking.

Marakah was convicted of several firearms offences, largely on the strength of the texts he had exchanged with Winchester — texts that were pulled from Winchester’s phone. Marakah challenged the search and seizure of Winchester’s phone under Section 8 of the Canadian Charter of Rights and Freedoms, the section that guarantees against “unreasonable search and seizure.”

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