This article discusses the ongoing trade war initiated by the United States and its impacts on Canada’s energy sector. Canada’s retaliatory trade measures have escalated tensions, thus prompting additional tariffs and ultimately jeopardizing cross-border economic efficiency. There have been varying responses across Canadian provinces to the trade war, with energy-producing provinces emphasizing the need for trade diversification. This article argues that if Canada reduced regulatory obstacles provincially, it could increase Canada’s resilience against external trade disruptions. Further, the impact of the current trade war has influenced geopolitical stability, thus industry leaders must enhance energy security in the long-term to mitigate risk to the industry.

This article considers whether a decision made by generative artificial intelligence can satisfy the standard of reasonableness set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. Vavilov requires that administrative decisions be justified through reasons that are transparent and intelligible to the affected party. Earlier scholarship, law, and policy have assumed that AI cannot do this because it cannot provide reasons and its inner workings are opaque or uninterpretable. However, new capabilities of large language models challenge this view. Recent experiments show that when prompted with party submissions and relevant legal materials, generative AI can produce persuasive, legally grounded reasons for decisions. The article evaluates two responses: one argues that AI decisions remain unreasonable under Vavilov since their true basis lies in opaque technical processes; the other contends that Vavilov focuses on the cogency of stated reasons, not how they were generated. The article supports the latter position, suggesting that Vavilov leaves open the possibility that AI-generated decisions can be reasonable, provided their reasons meet the decision-making standard applied to human actors.

In a recent article, Peter Wills advances provocative claims regarding the Supreme Court of Canada’s elucidation of constructive takings doctrine in Annapolis Group Inc. v. Halifax Regional Municipality (Annapolis). This article responds to four key claims in Wills’ critique. First, it argues that the Annapolis judgment adheres to, and indeed exemplifies, the traditional method of common law adjudication. Second, it contends that a claim for compensation for a constructive taking is properly classified as a private law action, specifically, a tort. Third, it rebuts Wills’ allegation that the action is untenable and incoherent when evaluated as a species of tort. Fourth, it concludes that Wills fails to substantiate his criticisms of constructive takings doctrine and that legislative intervention to abolish the action would not make the common law more coherent. In truth, the critique is founded upon a mechanical, Benthamite model of the common law, whereas the Annapolis judgment is faithful to the classical approach to common law adjudication and its robust, juridical conception of coherence.

This article assesses the effectiveness of Canada’s new Journalistic Sources Protection Act (JSPA) that aims to protect confidential news sources. The authors argue the reforms implemented under the JSPA as interpreted by the Supreme Court of Canada, while an improvement over the common law, do not go far enough. They argue that an interpretation of the JSPA should create a rebuttable presumption of non-disclosure, and that greater deference should be afforded to journalists who adhere to standard journalistic practices. The article finishes with a look at the case of the CSIS foreign electoral interference whistleblowers and how a reinvigorated interpretation of the JSPA as applied to that case would better advance the remedial purpose of the legislation.

This article critiques the arguments advanced by Elizabeth Sheehy, Isabel Grant, and Lise Gotell in their 2023 Alberta Law Review article, “Resurrecting ‘She Asked for It’: The Rough Sex defence in Canadian Courts.” Sheehy et al. trace a rise in both “rough sex” and “sex games gone wrong” defences in cases involving bodily harm and death in Canada and the United Kingdom, equating these defences to an updated version of the “she asked for it” defence. They argue that consent should not be a valid defence for bodily harm resulting from sexual activity unless such harm was unforeseeable, emphasizing that those engaging in violent sex acts should bear the risk of serious injury or death to their partners. Concurring with Sheehy et al. on the gravity of gender-based violence, this article problematizes their broad conflation of Bondage-Discipline, Dominance-Submission, and Sadism-Masochism or Sadomasochism (BDSM), rough sex, and sexual assault. Drawing primarily on queer theory, anti-carceral feminism, and the insights of BDSM subcultures, the authors argue — separately and among other points — that Sheehy et al.’s framing of “rough sex” perpetuates a carceral, paranoid, and partisan approach to sexual justice and stigmatizes BDSM practitioners, scapegoating them for failures in sexual assault prosecutions. Interrogating the limits of their position, this article advocates a more complex understanding of sexual consent, accountability, and harm.

Policy-makers in major economies face the dual challenge of reducing emissions for long- term environmental benefits while maintaining economic stability in the short term. The United States’s Inflation Reduction Act marks a pivotal move for the US in that direction, offering both challenges and opportunities for Canada as it strives to meet its own net-zero emissions target by 2050. This article focuses on Canada’s federal policies, the effects of which have been underwhelming thus far. Canada is not on track to meet its emission targets and faces a growing productivity crisis. This article encourages Canadian policy-makers to consider streamlining regulations and clarifying investment tax credits to better stimulate investment in decarbonization and emissions reductions in the energy sector and surrounding industries. Canada should focus on developing a more robust national industrial strategy that directly supports clean energy development and leverages its existing strengths in areas like carbon capture and clean electricity. By aligning with global environmental movements and utilizing its geographical and existing resource strengths, Canada can build a more resilient economy while meeting its environmental targets.

In 2019, the Supreme Court of Canada rendered its decision in Orphan Well Association v. Grant Thornton Ltd. (Redwater), ruling that environmental reclamation obligations were not claims provable in bankruptcy. This allowed the Alberta Energy Regulator (AER) to assert its claims outside the bankruptcy scheme, giving it priority over secured creditors and destabilizing Canada's energy and lending sectors. The decision disrupted commercial certainty as lenders struggled to recover loans from insolvent oil and gas companies. Although the AER and subsequent case law attempted to address the fallout, these measures have not fully restored stability. This article argues that comprehensive legislative action is needed to clarify the legal framework and mitigate Redwater's impact on the industry.

Over the last two decades, enforcement activity has increased in the realm of environmental and comparable regulatory schemes. This article discusses due diligence as a defence against these prosecutions and its increasing importance for energy companies. It begins with a survey of jurisprudence applying this defence, its public policy origins, and concerns that the defence has been eroding over time. The article then considers the role of the defence going forward and provides practical advice for organizations to better mitigate risks.