Law Times

Structured Settlements BC LT 4/6/05 2:54 PM Page 1 PAGE 12 FOCUS march 30, 2009 • Law Times Branch ruling 'significant' Continued from page 9 2009 chief justice Roy McMurtry made in obiter in R. v. Inco Ltd. in 2001 also justifi ed compulsion orders. In that case, Inco successfully appealed attempts by investigators to use evidence gained under duress from company employees, but McMur- try went on to comment that had the legislative changes been in eff ect at the time the alleged off ence took place, the ministry would have had the power to get a ju- dicial order to question witnesses. Nevertheless, Swinton wrote that McMurtry's words didn't apply in Branch since they didn't address the specifi c issue of compulsion and since the case didn't include a detailed analysis of the legislative section in question. As a result, the ruling casts doubt on the ministry's author- ity in investigations, but Ramani Nadarajah, a lawyer with the Ca- nadian Environmental Law Asso- ciation, doesn't believe it will hinder the govern- ment's ability to prosecute cases. "I don't really see this decision as hampering the ability to undertake investigations," she says. "It's obvious that they 'I think it's clear that if the gov- ernment wants to give those powers to investigators, there is a straightforward path to follow,' says Frank Addario. the courts. As well, she notes that for the most part, witnesses provide information voluntarily. "We expect that that voluntary co-operation will continue in the future," she says. LT Regulations have been mulled in Canada for years Continued from page 8 would likely target carbon- intensive goods such as steel, aluminum, cement, and paper as well as other manufactured products that create a lot of emissions, Andrew Shoyer, a partner with Sidley Austin LLP in Washington, said at a recent Bennett Jones seminar on climate change and trade in Toronto. Whether the United States regulations for years. Th e federal government has an- nounced its intention to re- quire would impose an allowance requirement would depend on how an exporting coun- try's record on climate change compared to its own. Factors to consider include whether the other jurisdiction's green- house gas reductions matched or equalled U.S. emission cuts as well as its regulatory pro- gram and use of technology, Shoyer noted. In Canada, of course, gov- ernments have already been mulling about potential enderson_LT_Mar30_09.indd 1 3/27/09 10:04:07 AM their emissions on an intensity basis rather than a hard cap on greenhouse gases, something lawyers dealing with climate change believe won't stand up to scrutiny by the new U.S. administration. As a result, Ba- rutciski believes our petroleum industry will likely be the fi rst target of any trade sanctions aimed at Canada. "Obviously, front and centre are going to be the oil-sands guys," he says. And while Barutciski be- companies to reduce lieves Harper and Obama are serious about negotiating a continental deal on climate change, he notes the U.S. House of Representatives will likely introduce new propos- als on both greenhouse gas regulations and trade, espe- cially since California Demo- crat and oil-sands critic Henry Waxman is now the chairman of the energy and commerce committee. For that reason, Canada needs to be proactive about fi nding allies in Wash- ington as well as keeping up to date on what equivalent ac- tion will mean under any U.S. proposals, he argues. In the end, of course, the threat of trade implications may compel Canada to be more aggressive on emissions than it otherwise would be. As well, it, too, may seek to impose similar restrictions against importers of goods here in order to protect domestic industry. "Now, there's no avoid- ing it," Barutciski says of the need for greenhouse gas regu- lations. "Th e population is in favour, and our biggest trad- ing partner says if we don't do anything, we're going to hit you on the side of the head with a canoe paddle." LT [the ministry] were taking a very expansive view in terms of what their power was." Nevertheless, Nadarajah, her- self a former prosecutor for the Ministry of the Environment, calls the Branch ruling an impor- tant one. "I think the decision is quite signifi cant in that it places clear limits on the power of in- vestigators during the course of investigations. I think this case follows a line of cases where the courts have made it clear that [the ministry's] investigative powers are limited by the Charter." Th e government, meanwhile, did not appeal the court's de- cision. Kate Jordan, a spokes- woman for the ministry, says offi cials don't believe the rul- ing will prevent it from laying charges against alleged violators since investigators have other tools for probing a case, such as getting a search warrant from Baxter_LT.indd 1 www.lawtimesnews.com 12/11/08 9:02:24 AM

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