May 16, 2022

Professors cited in recent court decisions

Professors Lisa Silver, David Wright and Martin Olszynski had research cited in court decisions from the Supreme Court of Canada and the Alberta Court of Appeal.

Supreme Court of Canada R. v. Brown

Professor Lisa Silver's ABlawg post "Who is Responsible for Extreme Intoxication?" was cited in the Supreme Court of Canada's decision R. v. Brown which restores an Alberta man’s acquittal for attacking a woman while in a state of automatism. 

Writing for a unanimous Supreme Court, Justice Nicholas Kasirer said section 33.1 of the Criminal Code violates sections 7 and 11(d) of the Charter in a way that cannot be justified in a free and democratic society and is unconstitutional. He wrote that section 33.1 violates section 11(d) of the Charter because society could interpret someone’s intent to become intoxicated as an intention to commit a violent offence. Section 33.1 also violates section 7 because a person could be convicted without the prosecution having to prove that the action was voluntary or that the person intended to commit the offence.

In an interview with CTV News, Lisa stated that the defence is meant to be used in extreme and rare cases when it can be proven "that a person is not even capable of forming the mental element required to commit the crime," and has lost choice or control over their actions.

Court of Appeal of Alberta Reference re Impact Assessment Act, 2022

A paper co-authored by Professor David Wright was cited in the May 10 decision about the constitutionality of the Impact Assessment Act. "Social Cost of Carbon in Environmental Impact Assessment" examines how a jurisdiction could employ SCC (social cost of carbon) to integrate climate change considerations into project-level assessment and decision-making. 

Professor Martin Olszynski also co-authored a paper that was cited in the decision. "Old Puzzle, New Pieces: Red Chris and Vanadium and the Future of Federal Environmental Assessment" is a case comment on the Supreme Court of Canada's decision in Miningwatch v. Fisheries and Oceans Canada (2009) and Moses v. Environment Canada (2009), both of which considered for the first time the federal environmental assessment regime under CEAA, 1992.

According to David, the Alberta Court of Appeal appears to have relied on a narrow view of federal jurisdiction and an expansive view of provincial jurisdiction. “The majority has exposed itself to correction, if not rebuke by the Supreme Court of Canada, because of how much emphasis they placed on the notion of exclusive provincial jurisdiction," he said in an interview with the Financial Post