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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Judges are obliged to follow the law, including by imposing mandatory minimum sentences. This can create a moral dilemma. Judges who justify punishment based on its utility in reducing crime may believe that minimum sentences are pointlessly harsh because they do not enhance public protection. Judges who justify punishment based on retributivist theory may feel that mandatory minimum sentences are excessive and therefore unjust. This paper contends that in their effort to impose just and useful sentences, judges tend to seek out and use available legal tools to reduce perceived unfairness. Statutory interpretation, the use of the principle of totality in multiple count prosecutions, and the selective deployment of sentencing tools have all been used to this end. The author contends that striving to constrain the impact of minimum sentences in this way does not corrupt the administration of justice. Instead it is a legitimate, predictable and inevitable outcome.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Rendered in December 2019, the Vavilov decision sets the contemporary analytical framework for the judicial review of an administrative decision on the merits. On this occasion, the Supreme Court expressed the desire to add a certain degree of certainty and consistency to this field of law. This article focuses on the new approach’s propensity to achieve that goal. The analysis begins with the observation that there exists a connection between the instability that has historically characterized the law of judicial review and the failure of previous approaches to adequately guide reviewing courts in the fulfillment of their mission, which consists of balancing the rule of law and legislative supremacy. In light of earlier case law, the author concludes that the Vavilov decision offers the prospect of greater certainty in determining the applicable standard of review, but that the risk of instability remains with respect to the application of the reasonableness standard. Indeed, while the Supreme Court’s guidance in this regard generally reflects a concern to alleviate the tension underlying the relationship between rule of law and legislative supremacy principles, some of the majority justices’ assertions, namely that certain statutory provisions “relating to the scope of a decision maker’s authority” may involve only one interpretation, may weaken the self-discipline of reviewing courts on which judicial deference is based.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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The Canadian Environmental Assessment Act (CEAA), as well as comparable laws such as the Ontario Environmental Assessment Act, is precisely the type of law one would expect to play a role in mitigating greenhouse gas (GHG) emissions from new projects. Unfortunately, in practice, CEAA is proving to be a failure in reducing or even stabilizing ever-increasing Canadian GHG emissions most notably from the oil and gas sector, particularly the tar sands. This article explores the reasons why CEAA has thus far disappointed advocates hoping to see the mitigation of GHG emissions from new projects. The author suggests that headway in reducing GHG emissions may nonetheless be made under CEAA by convincing courts that significance can only be defined in a manner consistent with the dictates of climate science. In particular, a focus on cumulative effects may help define significance in a more climate-friendly manner. The article also explores law reform options that would make CEAA a more effective tool in addressing climate change.
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The Canadian environmental assessment (EA) regime is broken. At a time when the Canadian economy is both increasingly sluggish and unsustainable, we have an obligation -- and perhaps a once-in-a-generation opportunity -- to fundamentally reform EA to enable it to finally live up to its promise of promoting sound and sustainability-based decisions. This task is even more pressing in light of the global commitment under the Paris Climate Change Agreement to rapidly transition to greenhouse gas emissions neutrality. Among the many priorities of meaningful EA reform -- moving beyond project-level assessments, focusing on net positive contributions to sustainability, avoiding costly trade-offs among interdependent economic, ecological, and social objectives -- we focus on the overarching need for polyjural collaboration and polycentric consensus-based decision-making. We argue that any serious effort to move from project-level EAs focused exclusively on adverse biophysical impacts towards a fully integrated, sustainability-based assessment (SA) regime requires a polyjural and polycentric approach capable of facilitating collaborative experimentation among multiple jurisdictional actors, including the federal government, provinces, territories, municipalities, Indigenous peoples, NGOs, academia, project proponents and industry groups, and the Canadian public. After examining the constitutional and political dimensions of the federal and provincial governments' role in EA, we provide two compelling rationales for transitioning to a SA regime. The paper concludes by setting out a series of possible forms of SA for the purpose of informing the federal government's review of its EA regime. In particular, we identify and analyze the competing options for jurisdictional cooperation, collaboration, and consensus-based assessment processes along with the constitutional and practical policy implications of each.
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