Thread by @carolyndunncbc

I'm tweeting a bit late from BC's quash Bill 12, the so-called "turn off the taps legislation" because it's unconstitutional court arguments. I showed on time and forgot my laptop. Dear Hubby ran home to get it for me like a kid who forgot lunch. He's good like that.

At any rate, Gareth Morley will be arguing for BC and Evan Dixon will be arguing for Alberta. Long arguments, all day, with no expected decision. Forgive the typos now.

Alberta Justice Robert Hall says he's not Monty Hall "let's make a deal" and is wondering why they're starting at a lower court when it will inevitably go to the court of appeal. He's implying this might be a waste of time arguing at a lower court.

BC's Gareth Morley says the jurisdiction of the feds has to be decided. Justice Hall tells ALBERTA they might just refer it to the Alberta court of Appeal. I don't know this judge, but he really seems to be leaning toward staying it at this level.

Justice Hall says "Everything is going to go upstairs anyway". "A warning shot across the bow, I may stay this matter."

Morley says BC will be fine with an adjournment if AB agrees to not issue an order on this legislation. Yeah, that's not happening.

hey @doug_schweitzer Evan Dixon is going to be calling. Justice Hall says why not refer it directly to the AB court of appeal. As far as provincial constitutional cases go, this is high drama. Some people in the gallery (law students I think) are going "WOAH".

So now we wait to see if Alberta will agree to refer this directly to the Court of Appeals in the next hour or if they're going to insist it be argued at this level. It's pretty clear, no one anticipated this possibility. Justice Hall threw them curveball.

Weee're back. Dixon says on a Friday of a long weekend, he can't get different instructions than what he has. So, we're going ahead.

So Alberta is going argue its standing. Dixon says what BC's claim is improper and ought to be struck. "It is plain and obvious this type of proceeding is not permitted." It can't succeed.

Dixon: What we are saying is that BC's AG lacks standing to come before this court.

Dixon says only the AG of Canada or Solicitor General of Alberta have a right to argue this. Justice Hall is questioning whether the absence of other parties amounts to "only" those two parties.

Dixon says if BC can come in and argue this, then any other AG of any other province can come in and try to quash Alberta's provincial legislation.

Dixon is basically arguing that BC's case law is thin and irrelevant.

Justice Hall "are you saying that this Act is not directed AT BC"? Hall says it's clearly aimed at BC. Alberta's purpose of legislating this is "to lay some hurt on BC" and BC is saying "I'm gonna stand up for my people", Hall tells Dixon.

Hall: "I don't like to hear Alberta say no, no this isn't aimed at BC, when clearly it is. It's like 'Fool the Judge'." Whispered chuckles in court.

Nixon: "Quite simply m'lord, even if you accept there were comments made in Hansard, the Act is neutral." So, basically even if politicians are using rhetoric, the law doesn't.

Hall: "Well if the gun is loaded, we don't have to wait until it's fired, do we?" Nixon says yeah, you do. Note: this judge is a quote machine.

Dixon: argued that Energy Min. Sonya Savage hasn't said anything about this bill. Hall: yeah, but the Premier has! Dixon: yeah, but only that there's no intention of using the Act at the moment. "The Act on its face is neutral."

Justice Hall: "Now it's law, we're not hypothetical. It gives Alberta the power..." to turn off the taps. Dixon argues "until such time it's operational, it remains theoretical." And he says there's no live issue, too premature to be here.

Dixon: "there's no suggestion the Minister will act inappropriately." Hall: "There's no suggestion she will, but I'm concerned that she (or her successors) might." Dixon argues if the Act ever become operational THAT's when BC should be fighting its constitutionality.

Dixon is basically saying it's way too early to look at its constitutionality because you can't assess any damage. Justice Hall disagrees, "It's a live issue. There is a legitimate issue if it's constitutional, but that's not what we're here for today". (it's standing)

Dixon calls the Act "skeleton in nature" until it's used. Justice Hall basically says ok, let's move along.

Morley is up for BC! This is about whether the BC AG can come to this court, he says. "If the legislature of BC enacted a law that affected the fundamentals of Alberta, and it was unconstitutional, then there's nothing (BC superior court) could do about that."

Morley says this is unprecedented. It's unprecedented in that there is no case in which the record in Hansard reflects the will to hurt the citizens of another province. (sorry, missed that quote, that's the gist).

Morley says Alberta's position is to say the "courts must stand by". Morley argues that because the AG of Canada and Solicitor General of Alberta have automatic standing, doesn't mean there can't be other parties (including itself) to get standing.

Morley is saying the AG can intervene in other province's legislation the "comfort, convenience or safety of the citizens he represents..." is affected.

Morley: "The role of the Attorney General of any province is to stand up for the interests of that province". He's arguing that the AG of BC should have standing to argue the constitutionality of AB's "turn off the tap" legislation.

Morley is arguing BC has a direct interest in this. "We're not here, just for fun. We're here because British Columbia has vital interests at stake." Justice Hall: "you're not just a busy body?" Comic relief for the gallery.

Justice Hall notes that there's a federal election coming up and that may influence why the federal government hasn't challenged Bill 12. But, he says ot Morley "You can't force them to challenge it". So, "Why don't you just sue in federal court?" Hall asks.

Justice Hall asks "what am I messing around in this for?" He notes that BC has an action in federal court. Morley has basically said both the provincial court and federal court have jurisdiction. But, Morley says he expects the federal court may not accept jurisdiction.

Morley: "I'm not saying we couldn't be at the federal court." But, he thinks the same arguments would be happening there.

Morley: "The family is having a dispute and there's a loaded gun. We don't know if there's a prohibited weapon there" and Morley argues in this ANALOGY that they have a right to find out. And Justice Hall has a quick lunch and is admitting someone to Bar until 2.

In the meantime, Justice Hall says as he adjourns, "if someone wants to call their boss..(looks at Alberta bench)." He's still holding out hope he's kicking this case directly to the Court of Appeal.

Weeeeeee're back. There's some new AB lawyers who have been called the Bar in our absence.

And AB is answering BC's arguments. Evan Dixon is just saying,Yeah, no BC, your arguments for standing don't hold water.

Moving on to the injunction application brought by BC. "To be clear what we're seeking here is a stay of the operation of the Act..." or before the Minister goes ahead, she seeks leave of this court. Using the gun analogy, "We have to make sure it doesn't accidentally go off."

quotes in previous tweet are BC's lead counsel Morley. Ran out of room.

Morley is arguing the province doesn't have the jurisdiction, "No province has the jurisdiction to cut off the supply of gasoline to another province." "We're part of a common country and we have a constitution."

Morley: "you can't use the supply of gas as a weapon." The next question says Morley is whether there's irreparable harm. There's no doubt BC fuel comes from AB, he argues if the minister uses the power that will cause harm.

Morley says it's may be a hollow threat but it's something in the Minister's power. It's irreparable harm if someone says they MAY do something to you.

We're going through some dense case-law and I think you're all better off not getting my interpretation of it. #notalawyer

Ok, back to real people talk:Morley says there's no obstacle that the Energy Minister to activate this legislation. AB saying because they have no intention to turn off the taps at the moment is not enough. Especially since BC has no guarantee of a hearing or any say if they do.

Morley says when Premier Kenney called it "the highest card to play", it's a game.

Which highlights a pretty important point. If there's an injunction or the legislation is eventually deemed unconstitutional, it removes perhaps the move powerful lever Alberta has in its pipeline battle with BC.

This legislation isn't really designed to cut off o and g to BC (which would hurt the oil patch)..it's designed to pressure BC to accept TMX and maybe other future pipelines. Without this lever, AB needs a new game plan.

Morley says AB has not put in any evidence about the public interest for AB in this legislation and BC has demonstrated the harm. And with that we're on a 15 minute break.

Back again. I'm looking at the water cooler in the courtroom and wondering what someone would do it I popped over the gallery barrier and grabbed a cup. But, let's get back to the arguments.

Evan Dixon for Alberta is answering BC's argument. He's saying BC is assuming the law is unconstitutional and so it is skipping over a bunch of tests about irreparable harm. Again, the AG of BC "has no right to come before this court to seek an injunction."

Dixon calls Morley's argument "tortured" and says he has not proved the harm will occur and is the type of harm that requires an injunction. The bar, he says is that it must be proven that the harm is likely and Dixon says Morley has not provided evidence of that.

Justice Hall says he hears Dixon's point that "it's a little over the top" when Morley suggested BC has already suffered irreparable harm. Dixon says in order to obtain an injunction the AG of BC must prove it's probable that the act will be implemented...

...that it's unconstitutional and that it cause irreparable harm.

Justice Hall is challenging the idea that the gov't has no intention of using it. "What's the point of proclaiming it, if they're not going to use it." Dixon: "This is simply another tool that this gov't has in its constitutional arsenal to manage its natural resources."

Justice Hall: "The context is Alberta wants pipelines built and BC says 'over my dead body'" and there's "bullying back and forth." Hall concedes he found it ironic that BC says it's at the mercy of AB for fuel, but protests a pipeline.

Just by way of background, it's the original TMX that carries much of the BC's fuel from AB. What BC opposes is the expansion that will carry bitumen that will be shipped from BC coast. That's why there's some irony.

Dixon: "The affidavit, m'lord, speculates. Speculates on the worse case scenario happening....and their evidence is not very good."

OMG, this court bench is hard.

Dixon: BC should have taken mitigating steps. Justice Hall: are you saying BC should have taken steps to get its fuel elsewhere? I don't think that's in the public interest of Alberta for that to happen.

Again, Dixon says we have no indication that the Minister is going to use this law and BC hasn't proved harm.

Dixon: "In 150 years we've never seen a case like this. This is a matter within AB's jurisdiction an authority and that is a matter that should be given great weight by this Court."

Morley's back and he's working off a yellow, hand-scrawled note pad now. "who is going to be hurt more if this application goes against them and they turn out to be right in the end." That's the test for an injunction Morley says (clearly believing it's BC).

Morley says there's no evidence the AB government can't make the act operational very easily.

Morley "There has been no public policy evidence that this needs to be held over the head of BC."

Justice Hall: "I'm going to have to reserve this decision and I understand a timely decision and I'll do my best. That said, if those two guys (Kenney and Horgan) want to get together and talk...." (court chuckles again).

Hall had just relayed he'd seen Kenney and Horgan saying now that they'd met yesterday and they could talk about these things and then he we are today! He again made a not so subtle suggestion to refer it to the Court of Appeal. And c'est fini. --- 30 ---